The Commonwealth of Australia v. Kennedy, L. [1985] FCA 334

Horton v. Byrne (1956) 30 ALJ 583 Whim Creek v. Federal Commissioner of Taxation

(1975) 7 ALR 571 Gamser v. The Nominal Defendant (1976-77) 136 CLR 145

Warren v. Combes (1979) 23 ALR 405 Trevey v. Grubb (1982) 44 ALR 20

Coram: Gallop, Neaves and Spender JJ. Date: 18 July 1985.

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

This is an appeal against the quantum of damages awarded for personal injuries in the Supreme Court of the Australian Capital Territory (Davies J.).

The plaintiff was 50 years of age at the date of judgment. She married in 1957 and had five children. She was divorced in 1982. She sustained personal injuries in an accident at work on 30 November 1977 when she tripped over a book bucket and fell against some shelves. Injuries sustained were a bump and bruise on the head, a gash on the leg, a bruise to one arm, and aggravation of a pre-existing cervical spondylosis, which prior to the accident had been

following heads of damage as found by the trial judge:

General damages $33,250.00 Interest on damages 7,962.00 Past loss of wages 11,580.00 Interest on past loss of wages 1,006.00 Future pharmaceutical costs 1,802.00 Loss of earning capacity 64,111.00

In addition, the trial judge reserved liberty to the parties to apply in respect of agreed medical and like expenses.

The defendant has appealed to this court against the sum awarded for loss of earning capacity only. It was submitted that the amount awarded under this head was excessive, having regard to the plaintiff's general medical condition unrelated to the subject accident, including post-accident medical problems, and two further accidents in which the plaintiff sustained injuries to a greater or lesser degree, namely a motor vehicle accident in May 1983 and a further accident at work in June 1983.

It was submitted that the plaintiff's general medical condition is likely to lead to the plaintiff's early retirement from her permanent position in the Commonwealth Public Service and that the trial judge failed to take this fact sufficiently into account.

Put shortly, the plaintiff's case at the trial, which his Honour accepted, was that prior to the accident on

30 November 1977 she was an active woman, well able to

undertake heavy tasks, an avid gardener and a person who enjoyed bushwalking, swimming and dancing. After the 1977 accident she had to give up heavy tasks and gradually became incapacitated for gardening and housework. She has been unable to knit since 1979. She tried swimming but found discomfort because of the pain which came from 11fting her arms above her head. She gave up dancing and increasingly found discomfort in car travel. She gave up bushwalking about two years before the trial as she found the strain of walking on rough ground too great.

His Honour found that the plaintiff's pre-existing spondylosis was asymptomatic before the 1977 accident but that it was likely that 1t would have continued to develop. He declined to find, however, that without trauma the neck would have become symptomatic and disabling at some time through the natural progression of the disease. The 1977 accident and the fusion operation to the neck played a part in hastening the development of the condition. His Honour concluded that the condition did not stabilise and the effect of the aggravation to the spondylosis did not cease. Nevertheless, his Honour reached the view that one or both of the 1983 incidents, to which I shall refer, did involve some fresh trauma. In 1984 the plaintiff suffered a sudden deterioration which was likely to have been caused by a new trauma. His Honour intimated that he would not include in the award of damages any sum for the deterioration which resulted from the 1983 trauma.

had intended to work until age 60, his Honour found it

inappropriate to find that the plaintiff would have continued working to that age but for the subject accident. She had had a great deal of poor health and had cervical spondylosis. He accepted the evidence of the plaintiff's treating doctor, Dr Caine, that apart from the spondylosis the plaintiff had had enough illness to make it doubtful that she would have worked to 60 years of age. His Honour could not determine precisely when the plaintiff would have stopped work or to what age she would have worked but for the 1977 accident. He assessed damages for loss of earning capacity by allowing the plaintiff a loss of 5 years working life from age 52 to age 57 as a result of the accident. Using the figures provided by an actuary, and allowing an additional sum for loss of overtime, his Honour reached a figure of $71,234 and then discounted that sum by 10% to take account of the vicissitudes of life, so as to reach the figure of $64,111.

It was submitted on behalf of the appellant that this figure was far too high. Either the figure of $71,234 should have been discounted by a larger percentage than 10%, or a proper amount included in the award of general damages to compensate the plaintiff for loss of earning capacity. Whichever approach was adopted, it should have embraced the aggravation of her general medical condition by later events.

It is necessary to refer to the trial judge's findings of fact in respect of the plaintiff's general

medical condition at the date of the subject accident, her

course of treatment following the accident, and the intervening events between the 1977 accident and the trial of the action in July 1984.

In the late 1960's the plaintiff suffered from cancer. She had a mastectomy and lymph glands were

excised. Radiotherapy inflicted a burn on her arm and

resulted in necrosis of the skin over the wound. A skin graft was necessary. This caused fibrosis which in turn caused discomfort and gave rise to a tendency to thrombosis. Since 1974 the plaintiff's condition with respect to these problems has stabilised and she has not had any recurrence of cancer or thrombosis since. She has been left with some disability and pain in the arm, which play only a minor part in her complaints at the date of trial.

The subject accident did not immediately give rise to severe pain but in June 1978 she suffered brachial nerve neuralgia on the right side which resulted from the accident of 30 November 1977. Dr Caine prescribed a cervical collar and physiotherapy. In late August 1978 the condition worsened and the plaintiff became acutely distressed. A fusion operation was performed on 20 September 1978. After some initial post-operative pain for one or two months and a further admission to hospital on 29 October 1978, her condition improved and she was able to resume her ordinary life at the end of 1978.

had a hysterectomy, an incisional hernia was repaired and

her gall bladder was removed. She also tended to become anaemic as a result of excessive uterine bleeding.

In May 1983 the plaintiff was a passenger ina motor vehicle which skidded in wet clay and hit the side of the road. As a result the plaintiff sustained pain in the scapula area, lower back and front chest. The hospital records refer to the cervical spine and state that the plaintiff's neck was not tender. The plaintiff's evidence, which the trial judge accepted, was that the accident caused pain in the lumbar spine but not in the cervical region. In June 1983 the plaintiff suffered another accident while carrying some books in the library where she worked. A heavy door swung and hit the end of her elbow. Since then the elbow has been troublesome and painful, and in June 1984 she was treated with cortisone injections. She is likely to have continuing trouble with her elbow and some pain and disability from it, but the injury is localised and it is not that injury which principally gives rise to the pain and discomfort which she now feels.

His Honour rejected the evidence of a medical practitioner called on behalf of the defendant to the effect that the 1977 aggravation had stabilised or ceased, and that the deterioration in 1984 was due to the natural progression of the spondylosis or to some fresh trauma. He preferred the evidence of the plaintiff's treating doctor and the other medical evidence called on behalf of the plaintiff.

determine appeals from judgments of the Supreme Court of a

Territory pursuant to s.24 of the Federal Court of Australia Act 1976, this Court is to have regard to the evidence given in the proceedings out of which the appeals arose and has power to draw inferences of fact and, 1n its discretion, to receive further evidence (s.27). It may, in the exercise of its appellate jurisdiction, inter alia, affirm, reverse or vary the judgment appealed from and give such judgment or

make such order as in all the circumstances it thinks fit, or refuse to make an order (s.28(1)(a) and (b)) (Whim Creek v. Federal Commissioner of Taxation (1977) 17 ALR 421).

In Wilson v. Piesley (1975) 7 ALR 571, Barwick C.J. propounded the principles which should be applied by an appellate court in reviewing an award of damages in the

"The setting aside of an award of damages ina trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages 1s so great as to make the award quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small: and therefore of itself a demonstration of error present though otherwise undisclosed. The less ponderable of elements of the damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of a trial not blemished by error or irregularity."

In the same case Mason J. expressed the principle, at p.585, in the following terms:

"It needs to be remembered, as Lord Wright observed in Davies v. Powell Duffryn Associated Collieries Ltd (1942] AC 601 at 616; [1942] T All ER 657 at 664, that an appellate court is (or should be) particularly reluctant to interfere with the finding of a primary judge on damages because it 1S so much 'a matter of

Speculation and estimate'. In the case of an award of damages for personal injury by a trial judge, although

the appeal is by way of re-hearing ..., as the assessment of damages is 'more like an exercise of discretion than an ordinary act of decision', an appellate court is particularly slow to reverse the primary judge.

The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has

acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages

awarded 1s so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered."

Wilson v. Piesley, supra, was not adopted by Gibbs J., as he

then was, in Gamser v. The Nominal Defendant (1976-77) 136

"To say that an award of damages made by a judge must be outrageous, or out of all reason, before an appellate court is entitled to intervene is, I think, with all respect, to state too high a test. However in the present case, 1n the circumstances stated by my brother Aickin, it should not have been held by the

Court of Appeal that the award made by the learned trial judge was a wholly erroneous estimate of the

damage suffered, and there was no sufficient ground for the Court of Appeal to have interfered with that award."

His Honour was referring to the dicta of Aickin J. in the same case where, after citing the above passage from Barwick C.J.'s judgment, his Honour said at p.159:

"In my opinion the proper approach to this case is to look at the total sum awarded as general damages and at all the circumstances, the pain and suffering, past, present and future, the physical disabilities, the medical and psychological problems which are inevitable for the future, the effect on earning capacity and the kinds of additional costs which the appellant will necessarily incur, and to ask oneself whether the sum of $150,000 is 'out of all reason' or 'wholly disproportionate to the circumstances'."

It was submitted on behalf of the plaintiff that this Court is being asked to make a finding other than that which the trial judge made on disputed facts. I would agree

with the submission made on behalf of the plaintiff that if,

from the disputed facts, there was some evidence upon which the trial judge could have made the findings he did, an appeal should generally fail. This submission accords with the principles laid down by the High Court in respect of appeals involving disputed issues of fact in the court below. An appellate court will not substitute its view for that taken by the trial judge even if it may disagree with 1t on some points. As Mason J. stated in Wilson v. Piesley supra, it must be shown that the trial judge acted ona wrong principle of law or that he misapprehended the facts of the case.

In Horton v. Byrne (1956) 30 ALJ 583, a case involving a claim for damages for personal injuries, the appellant urged that the High Court disagree with the trial judge where he relied on a particular witness' evidence as to whom was at fault in a motor car accident. The High Court said that the trial judge had given anxious consideration to the question of the degree to which he could depend on the witness' evidence and to the probabilities of the case. It was clear to their Honours that, notwithstanding the trial judge's want of complete faith in the witness, he properly concluded that he might act with sufficient safety upon the version of the accident which the witness gave, treating it as not improbable and as consistent with the circumstances independently proved.

"It was, of course, essentially a question of fact depending upon the effect to be given to the oral evidence considered with the circumstances and the probabilities. Misgivings about a witness and hesitation in accepting his evidence at all points may

well end in the acceptance nevertheless of the substance of his account of a transaction. Such things

ought not to lead a court of appeal to interfere with a finding in the absence of more tangible and positive reasons for supposing it to be wrong. H1s Honour was in a position to judge of the degree to which he could depend on [the witness] and to assess the probabilities ef his account of the accident. An examination of the transcript of the evidence discloses no safe ground for disturbing his conclusion. It follows that the appeal of the defendant Horton fails."

The High Court has thus indicated the attitude which should be taken to a challenge by an appellant to a conclusion reached by a trial judge on disputed facts.

Trevey v. Grubb (1982) 44 ALR 20. At the conclusion of a judgment relating to contract and trusts law the Court

(Mason A.C.J., Murphy, Wilson, Deane and Dawson JJ.) stated

"The real issue in this case was not what inference should be drawn from undisputed or established facts, but rather which party was to be believed as to the arrangement made between them. That depended very much upon the credibility of the witnesses and, upon that matter, the appellate court was not in as good a position as the trial judge to make a decision; see Warren v. Coombes (1979) 23 ALR 405 at 423, 142 CLR 531 at 551. The criticism made in the Full Court of the way in which the trial judge reached his finding upon this issue fails, in our view, to disclose any material error or other sufficient reason to displace that

In accordance with those principles it is necessary for the purposes of the present appeal to show that the trial judge made a material error or show some other sufficient reason to displace his finding in respect of disputed facts.

In my view there was evidence to support the finding of the trial judge that, although it would not be appropriate to take the view that the plaintiff would have

continued working to the age of 60, it could be concluded

that the plaintiff would have worked at least until the age of 57 and that it would be proper to allow the plaintiff a loss of five years working life. His Honour chose to do this by assuming the loss from age 52 to age 57 as a result of the 1977 accident.

I now refer to the evidence which supports the finding of the trial judge. In a report of Dr Gerald Caine dated 27 February 1984 (Exhibit F) he reported:

"In the light of his report [Dr Newcombe's report of 2 February 1984 set out below] and the X-ray report I must say that the fears I had about her have materialised and she is now into a state where she may well not be able to work out her normal time. A patient always feels worse during the stage of acute spondilitis which 1s what she has at the moment. She may improve a little but she will be likely to have recurrences, and eventually she will have to give the work up."

Dr R.L.G. Newcombe, in a report dated 2 February 1984 (Exhibit K), stated:

"I would estimate that she will be able to continue in her present capacity for another 5 years or so, but early retirement at the age of 55 is likely. It 1s unlikely that she will be able to continue working to the age of 60 or 65."

Dr G. Danta, in a report dated 17 July 1984 (Exhibit U), made the following comments: "I think it is more likely now that she will be required

to retire prematurely and my feeling is that the injury in 1977 contributed much more than the one in 1983.

Regarding my paragraph 2 in response to your queries in

my report of February, 1984, I should say that in view

of the fact that she 1s currently unable to work, the

finding was given by oral testimony at the trial. The evidence of the respondent herself was consistent with the

"When you joined the public service in 1973, did you form a view then as to what date you would retire?---Well, I have worked all my life. I did not see (sic) as a person retiring before I actually had to which would have been at 60 years of age.

What is your view, as of today, as to when, if you are

able, you would like to retire?--- Well, depending on how I go medically. But at the way I feel at the

present moment the pains are getting worse. I cannot see myself lasting out until I am 60."

If there were no pain, what would be your view as of today?---I would go on working.

Until when?---Until 60, I think." Later in her evidence she said in cross-examination:

"And 1f 1t were not for your elbow at the moment you would be back at work again, I take 1t?---Possibly, but I could not be quite sure because - - -

Well, why not?---Why not? Well, my neck at the present moment is bad.

You say not worse than it was 12 months ago?---Yes.

Are you telling us, the court, that it has just been a progression all the way through those five years or is there a time about the end of last year when it got a lot worse, more or less suddenly? Your neck I am talking about?---Well, as I said before, I think it has been progressively getting worse.

You think it is a constant line of progression getting worse?--~Yes."

"You see,, your attitude has been that you would retire around about 55 to 60, I suggest to you?---Mm.

55 to 60, somewhere along that period?---Well, 60 I was aiming for".

The evidence given by Dr Caine supports the conclusion of the trial judge. In his evidence in chief Dr Caine gave the following answers: "Doctor, I want you to assume that if Mrs Kennedy were to resume work back at the library that her main duties would be filing loose leaf materials into binders, and

she does that by sitting down for long periods of time. I do not want you to assume that she actually

obtains the binders herself, some of which are heavy and some of which you have to reach for, but I do not want you to accept that she does that, but she simply files the loose leaf materials into binders and does that by sitting down for long periods of time. In your view is Mrs Kennedy able to, will she be able to resume such work?--~Yes, in my opinion she is such a person that she - granted her limitations and disabilities she would be able to do some kind of sit down paper work on a bench. She 1s the sort of person who would have a go at it, but - - -

What do you mean by that, that she is the sort of person?--~~Well, again I repeated what I said before, that she 1s the sort of person who, I would not say a workaholic, but a person who likes going to work and goes to work and does the work and gets on with the work and, even though she has had a ton of other troubles she has risen above it all and kept on with her work, up until recently. If she was put to the job I am sure she would accomplish something there, but in my Opinion she would do so only under great disability, and as far as I am concerned at least from the beginning of this year I think she has worsened from say, January 1984, I think she has worsened since then, and the x-rays taken in January 1984 show that she has considerable trouble, both in the centre of her cervical spine and on the left and right hand side of the cervical spine. So in a sense she is not reliable

any longer, and even though she may get good days you would expect her to get more bad days from now on, and

I would expect her to have enough bad days to make her an unreliable worker and probably be, whatever you call it, put off or pensioned off or retired or whatever way this all works out. I would not expect her to go on much further if she has the same trouble that she is presently having."

"She has some pain from her accident to the elbow and she has some pains that arise out of her old breast cancer trouble and all the complications that occurred to that. So that the whole thing is a bit ambiguous, but in my opinion it is not at all ambiguous, which is the predominant pain, and that 1s the pain from the

cervical spondylitis. The second most important one being the recent local pain and the least likely cause

or the least powerful cause at this stage, at least, is her cancer trouble."

"Do you recall to his Honour that you did not expect her to continue in work?---I said she has such disabilities that it was to be expected that she would not go very

much further. Up until 1984 she has gone on very well and in 1984 she has deteriorated, you might say,

seriously, or rapidly or markedly, and as at now - this year 1S a bit open. I would have to speak about it again in relation to her psychologic, but the average person, I am sure, the doctor would have recommended them to go out of work and they would have accepted doctor's recommendation.

I cannot be more specific than to say that in my judgment she is running out of time and I do not expect her to go another 10 years. It may be 1t will only be one year, 1t may be that she will not go back at all, because just at the moment she is in one of her, sort of, down stages."

"She could still carry on as she has been carrying on over those years if you were to remove the elbow problem?--~That is right. She would have a continuing problem which will be increasing in 1uts disabling effects and at a certain time between now and the next, say, five years she 1s going to get sufficiently bad that she would not be able to go to work even with the best will. But at the moment I would have to think, from what I see of her, that she would be able to go and do something here and now, in the middle of 1984.

But just to go back and putting the whole thing in a little potted history, she had the accident towards the end of 1977 and then minimal symptoms until the middle of 1978?---Yes.

Then the symptoms increased fairly dramatically from then until she had her operation in 1978; is that right?---Yes,

You do not have any difficulty attributing those symptoms back to the 1977 accident?---That would be the logical connection.

I do not propose to argue about that at the moment. Then after she has her operation, by the end of 1978 you certify her as fit to return to work; is that

So there is a significant improvement, is not there, between prior to the operation and the end of 1978?---Yes, you would have to count 1t as a successful operation in that general sense.

Then we have a period of 1979, 1980, 1981, 1982, 1983 - four years or five years where her condition 1s stable, is it not?---Yes, you could say virtually stable.

Virtually stable and she is coping with her work because she wants to work?---That is right."

"On the next page of that report you say, "I would estimate that she will be able to continue in her present capacity for another five years or so, but early retirement at the age of 55 is likely?"---That was my best guess.

What did you relate her retirement at the age of 55 being likely - as being attributable to in medical

terms?--They are the problems of further deterioration of the C4/5 level.

And with, or without the operation, it 1s still your view that on the balance of probabilities, on medical grounds, that she will not be working past age 55?---I think that that is a reasonable statement. I think that that 1s - one could debate whether 1t 1S more likely - range 55-60 - but certainly I would expect some reasonably significant reduction in working time.

Doctor, assuming that her main duties would be that she would file loose leaf material into binders, and that she would sit for long periods of time whilst filing, but that she does not actually obtain some of these

binders which are heavy, and does not reach up for them, but she simply files - 1n other words doing very

light type of duties. Would your opinion still be the same in relation to the 55?---Well, if light duties are possible, it may be that she could work longer than that. It is only a best estimate. The usual difficulty in going into light duties on a prolonged basis, is that most employers, including the public service, do not allow this to happen."

"Are you able, by reference to her age, to say to the court, what in your view, is the most likely age that she would be medically retired?--~As I mentioned before it is a very difficult question to answer because it is not inconceivable that, if, her present pain relating to the elbow and to the neck injuries does not improve, then she may not be able to go back at all. On the other hand, if these improve she may return, but I would certainly expect further trouble to arise in the course of her work, and I would estimate, possibly, that if she does return to work, she is likely to have to interrupt her work on account of recurrent pain, and, she may well need to be retired within the next two years or so."

Evidence was given at the hearing by Mr Joseph Ridley, who works with the respondent and, indeed, lives in the same house. He gave evidence of the plaintiff's handicaps in relation to her work at the National Library and her difficulties in performing normal household chores: "Can you tell his Honour what exactly that you do?--~ Collect a series of binders for filing which are, at times, considerably heavy, and transport them to the work area and transport them back to the place from

which I have taken them. Move the material from shelf to shelf, that she 1s unable to do, neither on top of the shelves or low down, where she has trouble stooping to or lifting ~ or reaching up to.

Do you do anything else to assist her at work?---Well, I think that 1S about all I can do to help her.

Now, on the home front, what do you do in relation to the chores at home?---The heaviest work, namely, house cleaning, the hanging out of the heavy clothes, washing up, work of that nature."

In my view the above evidence gives support to the finding of the trial judge that the plaintiff would have been forced to retire early as a result of the accident. Furthermore, it was clearly open to his Honour to find that although the plaintiff would not have worked to the age of 60 but only to the age of approximately 57, the 1977 accident had in fact shortened her working life by about five years. No material error or other sufficient reason to

displace the trial judge's finding has been disclosed.

I certify that this and theS/ precedirg pares are a true copy of the Reasons for Judement herein of his Honour

ON _ APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN : THE COMMONWEALTH OF AUSTRALIA Appellant AND: LORRAINE KENNEDY Respondent

CORAM: Gallop, Neaves and Spender JJ. DATE: 18 July 1985

material before the learned trial judae I have reached the

conclusion that neither the total award nor the component part thereof relating to the respondent's loss of future earning capacity 1s affected by such an element of disproportion to the

respondent 3 injuries resulting from Ehe accident on 36

November 1377 a3 Co warrant tne inkerference of this Court.

His Honour was required to make a realistic evaluation of the probable effect of the injuries resulting from the accident upon the respondent s prospects of continuing in her

employment. This task was made more difficult because of other

medical problems with which the respondent was beset and which were unrelated to the accident on 30 November 1977. Those problems and the incidents which qave rise to them are sufficiently referred to in the judgment of the trial judge and I need not re-state them. His Honour concluded that justice would be done if he allowed the respondent a loss of five

vears' working life, from age 52 to age 57, as a result of the

The medical and other evidence relevant to that issue is referred to in the judgment of Gallop J. and I need not set

While the approach which the trial judge took was, in

my opinion, generous to the respondent, the appellant has not

satisfied me that the amount inciuded in che award for future

loss of earning capacity i1es beyond -Ehe limits of wnat a sound

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judament herein of the

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