Woolworths Ltd v Mohamad

Court of Appeal (NSW)|2008-11-25|Before: Tobias JA, Bell JA, Garling J

CITATION: Woolworths Ltd v Mohamad [2008] NSWCA 336

(a) Appeal allowed in part. (b) Cross-appeal allowed in part. DECISION: (c) Set aside the judgment of Judge Garling in the sum of $332,896 made on 27 November 2007 and substitute therefor judgment for the respondent in the sum of $336,268, such judgment to date from 27 November 2007. (d) The appellant to pay 80% of the respondent's costs of the appeal. (e) Each party to pay his or its own costs of the cross-appeal.

CASES CITED: Kallouf v Middis [2008] NSWCA 61 Rabay v Bristow [2005] NSWCA 199

PARTIES: Woolworths Ltd Michael Mohamad

COUNSEL: A: P Greenwood / D Tynan R: H Kelly SC / J Callaway

SOLICITORS: A: Moray & Agnew, Sydney R: Owen Hodge Lawyers, Hurstville

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40877/2007 DC 3534/2006

Thursday 4 December 2008 WOOLWORTHS LIMITED v MICHAEL MOHAMAD Judgment 1 TOBIAS JA: The respondent, Michael Mohamad, was injured on 12 February 2005 when he slipped and fell at the premises of the appellant, Woolworths Limited. He sustained injuries to his lower back, left elbow, left hip, left shoulder and wrist. He instituted proceedings in the District Court against the appellant for damages. 2 His Honour Judge Garling heard the proceedings. On 27 November 2007 he found that the appellant was negligent and thus liable for the respondent's injuries. His Honour assessed the respondent's damages in the sum of $332,896 and entered judgment in his favour for that sum. The appellant appeals against so much of the judgment as relates to the primary judge's assessment of past and future economic loss and future medical expenses.

The relevant findings of the primary judge 3 The relevant findings of the primary judge can be summarised as follows: (a) The respondent sustained soft tissue injury to the left elbow, muscular-ligamentous strain to the lumbar spine, micro-trabecular fracture of the L5 vertebral body, post-traumatic L5/S1 intravertebral disc annular tear, and adjustment disorder with anxiety and depressed mood; (b) At the time of trial the respondent was nearly 46 years of age. He had sustained pain and disability which he would continue to suffer to some extent, although he had made significant improvement since he undertook a pain management course which concluded on 18 November 2006; (c) The respondent had had an excellent work history and had worked fairly continuously since arriving in Australia in 1974. He had worked as a security guard, a cement renderer and truck driver; (d) In early February 2005 he resigned from his employment as a truck driver, having been offered a job working for Neville's Cement Rendering Pty Limited (Neville's) as a cement renderer. The owner of that business, Mr Nawaf Chaouk, offered him a job commencing on 15 February 2005 at a remuneration rate of $250 gross per day plus GST. Mr Chaouk gave evidence that in due course, if the appellant turned out to be a good worker, he would earn a lot more than that. There had been plenty of work available for the appellant with Neville's since February 2005 and there would continue to be plenty of such work available; (e) The respondent, but for the accident, would have commenced work as a cement renderer with Neville's and would have continued working there for at least a period of time. However being heavy work, he would not have performed in that capacity for the whole of his working life (to age 65) but he had a number of areas of employment upon which he could fall back, including truck driving, handyman work or as a security guard; (f) On the accepted medical evidence, the respondent was initially totally unfit for work. He later became fit for very light part-time duties and at time of trial he was fit for work, but unfit for cement rendering work and unfit for any work which required excessive lifting, bending, working in confined spaces, working above ground level or excessive driving; (g) The respondent's work capacity had increased since October 2006. Relevantly, he was and would continue to be fit to perform security work, in particular work in front of a console where he could sit and stand and move about or even work where he could walk around various premises providing he could sit, stand and did not have to spend too lengthy a time driving. 4 With respect to past economic loss the primary judge was satisfied that, but for his injuries, the respondent would have earned $913 net per week at the cement rendering job he was proposing to undertake with Neville's in which he would have continued for a period of time. His Honour allowed the respondent past economic loss with respect to two periods. The first was from 12 February 2005 to 17 November 2006 (when he completed his pain management course), a period of 91 weeks. His Honour allowed the respondent the whole of that period at $913 net per week, a total of $83,083. He was satisfied that during that period the respondent had attempted to obtain work but was not successful, finding that it would then have been fairly impossible for him to find suitable work. 5 The second period was from November 2006 to the date of trial, a period of 54 weeks. The primary judge considered that after November 2006 the respondent became fit for a number of types of work, although there would have been a period during which he would have had to work his way back into the workforce. His Honour allowed the respondent a sum of $400 per week for 54 weeks, a total of $21,600. 6 With respect to future loss of earning capacity, the primary judge found that had the respondent not been injured he probably would have been earning "in excess of $950 net per week". Accordingly, he had sustained a significant loss of earning capacity, which his Honour assessed as "at least one-third". Given his age at the time of trial, he had a further 19 years working life in respect of which his Honour allowed him the sum of $300 per week which, using the appropriate multiplier, totalled $164,781 after taking into account 15% for vicissitudes. 7 With respect to his claim for future medical expenses the primary judge found that the respondent would, from time to time, need to see a general practitioner, undertake some physiotherapy and take some prescribed medication. However, he considered that there was no evidence that the respondent needed "to constantly visit" specialists, a gymnasium or receive massages. Doing the best he could, he allowed the respondent the sum of $25,000 under this head.

The medical evidence 8 The respondent tendered medical reports by his general practitioner, Dr Iskander; his treating orthopaedic surgeon, Dr Rosenberg; his treating psychiatrist, Dr Parmegiani; a consultant physician in rehabilitation medicine, Dr Chan; and a consultant orthopaedic surgeon, Dr Wallace. The appellant tendered medical reports from Associate Professor Jones, a consultant physician in rehabilitation medicine; Dr Mills, consultant physician in occupational medicine; and Dr Millons, a consultant orthopaedic surgeon. His Honour preferred the opinions of the respondent's medical witnesses to those of the appellant, apart from Dr Millons, whose opinions were, in relevant respects, consistent with those of the respondent's witnesses. None of these witnesses were required for cross-examination. 9 Dr Iskander was the respondent's general practitioner who had treated him since 14 February 2005. In his report dated 11 July 2006 he stated: "He [the respondent] is fit for light duty type of work with avoidance of the activities which provoke his pain eg lifting heavy objects more than five kg at a time, bending, standing for long periods or any other heavy physical work." 10 In a further report dated 8 August 2007 Dr Iskander noted, relevantly, the following: "● Since then [July 2006] Mr Mohamad presented to me six times with acute exacerbations of his lower back pain. ● He continued to complain of difficulty walking fast, running, walking on the stairs, driving for long periods and also standing for long periods because of his back pain.

● All of these episodes needed moderately strong analgesics and a short course of anti-inflammatory medications.

● He remained on antidepressant medication to control his depression, poor sleeping, anger, frustration and recurrent episodes of loss of temper.

● Dr Rosenberg advised on 02/04/07 that there is not really [a] surgical answer for Mr Mohamad and he needs to just stick with physiotherapy aimed at a core-strengthening programme.

● Dr Rosenberg also advised that in the long term Mr Mohamad needs re-training as his current job as a cement render[er] is inappropriate for his given his level of pain." 11 In his report dated 12 January 2007, Dr Parmegiani opined that the respondent's mental state was unlikely to improve significantly in the short to medium term, and possibly longer. Accordingly, he considered that the respondent would find it difficult to work more than 20 hours per week due to his irritability, lack of motivation and reduced stress tolerance. He also considered, in terms of his future treatment, that there should be an allowance for eight sessions with a specialist psychiatrist at a cost of between $160 and $260 per session and that he would need to take antidepressant medication for the next two to three years at a cost of $29.50 per month net of PBS benefits. 12 In his report dated 15 January 2007 Dr Chan noted that the respondent had difficultly in walking fast, using stairs and had limited driving tolerance all due to his back pain. He considered that his prognosis for complete recovery was poor and that the likelihood of him finding future suitable employment was also poor because of chronic lower back pain and depression. However, he considered that the respondent might be fit for light duties in security work where he was allowed to sit or stand every 20 minutes and did not have to drive for more than 40 minutes at a time. 13 Dr Chan also considered that the respondent would require ongoing monitoring of his condition by his family doctor approximately once every two months; that he would need to take drugs at night to control his depression for at least two to three years and that he would require Panadol or Panadeine when necessary for pain control at a cost of approximately $100 per year. He was also of the view that the respondent would benefit from ten physiotherapy sessions at a rate of $72 per session and ten sessions of remedial massage therapy at a cost of $60 per session. Finally, Dr Chan considered that the respondent required a six month gym membership at a cost of $770 (incl. GST) to enable him to continue a self-initiated gym-based exercise program. The views of Drs Chan and Parmegiani on the respondent's need for ongoing treatment are relevant when assessing the appellant's challenge to the primary judge's assessment of future medical expenses. 14 In each of his reports dated 12 September 2006 and 28 March 2007, Dr Wallace opined as follows: "[The respondent] would not be fit for activities requiring repetitive bending or twisting movements at his lumbar spine, sitting or standing in one position for prolonged periods, repetitive lifting above 10 kilos, working in confined spaces, at heights or on ladders, prolonged driving of a motor vehicle or operation of machinery for prolonged periods or walking or stair climbing. … He would be best suited to retraining at work involving only light physical activity or clerical duties on a part-time basis working up to 20 hours per week with due consideration given to restrictions on his activities as detailed above." 15 Dr Wallace was also of the opinion that the respondent would need to be reviewed by his general practitioner every second month at a cost of $60 per visit and by his treating orthopaedic surgeon on a six monthly basis over the next two years at a cost of $220 per visit. 16 As I have indicated, Dr Millons saw the respondent on behalf of the appellant. In his report dated 25 October 2006, made before the respondent underwent his pain management course, Dr Millons expressed the following opinion with respect to the respondent's future employment prospects: "As far as work is concerned I would have thought that he ought to be fit for some sort of gainful employ. He ought to be fit for at least four hours light duties a day in an office or store environment, avoiding excessive bending, lifting more than 10kg or working in award [awkward] or confined spaces, providing he could change his position at will. Through work hardening and the aforementioned exercise program his fitness levels could improve and he could well improve his hours back to full-time. … He is best suited to work of a light semi-sedentary nature as outlined above, initially working part-time and then perhaps as work hardening occurs his hours might increase. … The prognosis is guarded."

The primary judge accepted Dr Millons' evidence, which he regarded as consistent with that of the respondent's medical experts.

The respondent's evidence 17 The primary judge accepted the respondent as a satisfactory witness and saw no reason to reject his evidence. He did not consider that the respondent embellished his symptoms or his conditions. He therefore accepted the complaints that the respondent made with respect to his condition. 18 With respect to his symptoms, the respondent conceded in chief that after completing the pain management course in November 2006 he noticed some improvement in his condition, that he felt better than he had before and that that was still the case. However he maintained, and his Honour accepted, that he was never without pain in his lower back and that he also had pain in his left hip and left leg. He said that if he sat for long or stood for long, the pain became worse. 19 The respondent further acknowledged that prior to undertaking his pain management course he could have done some part-time security work but that although he had sought light duty work through Centrelink and Work Directions, he was unable to obtain any employment. After the pain management program he said he felt better after exercise and could perform security work. The following exchange then occurred: "Q. Do you think you could do that full-time? A. Yeah. It depends on what - it's not standing, it's inside monitoring room or I do bit of sitting and doing security control. Q. So does it depend on the type of security work. Is that what you're saying? A. Yeah. There's car patrol, there's car, there's - depends on monitoring room. Q. So the monitoring room, that's something you would be able to do, you think? A. Yeah." 20 With respect to his proposed employment with Neville's, the respondent gave evidence that he was to start at $250 per day gross. When asked whether the sort of work he would have performed with Neville's would have continued until he retired at the age 65, the respondent replied, "I don't know about that, but I was looking forward to working for the next couple of years, yeah". 21 Under cross-examination the respondent agreed that his condition had improved quite a bit over the previous few months. However he also gave evidence to the effect that it would cost him $600 to re-obtain his licence to be a security guard, which he could not then afford as he was struggling financially. The following exchange later took place: "Q. And the present day when you formed the view that providing you were working in the he monitoring room, you could've worked as security guard? A. I could have. Q. Is that correct? A. Yes. Q. Well can I ask you firstly, is my understanding of what you say is correct being that from about the time when you finished the pain management course up until now, if you could obtain in a monitoring room and had the money to buy your licence, you could work as a security guard? A. Yes, sir. Q. So the only thing that's, at the moment, stopping you from obtaining that sort of work or applying for it at least is the fact that you haven't had the approximately $600 to apply for a licence? A. Yes, sir. Q. If you had the $600 I take it you then make your application, you look around in the security industry for work in a monitoring room and when you say monitoring room, am I to understand that to be for example a monitoring room in a club with television monitors or something of that nature? Is that what you understand? A. Yep. Q. And you could do that type of work, I take it, because you would be able to sit and stand? A. Yes, and patrol. Q. And? A. And patrol, go out for patrol, yeah. Q. And patrol? A. Which is walking, yeah, involve walking. Q. So the work that you would be seeking as a security guard would not just be confined to staying in the monitoring room. You have the capacity to walk around and patrol a club, for example? A. Could be a club, could be a school, could be a building. Q. Because your physical condition has now improved enough to allow you to do that type of thing? A. (No verbal reply) Q. That's correct, isn't it? A. Yeah." 22 He was also cross-examined on the medication he was taking at the time to the effect that he continued to take medication for his depression and took two tablets of Panadeine Forte or Nurofen Rapid Plus "maybe once a week" with respect to his pain. 23 In re-examination the respondent was asked what the standard rate paid for full-time security work was. He replied it was $700 gross per five-day week. However, the amount earned would depend upon the nature of the security work undertaken and the hours worked. He had friends who worked in the security industry and they had told him that from Monday to Friday between 9.00 and 5.00 the hourly rate was about $30 per hour gross. These friends were getting about "$30, $32, $28, $29. Roughly in that area just doing normal security, doing schools and … patrolling schools and doing clubs and monitoring … eight hours a day". It would be fair to say that the precise hourly rate would probably depend not only upon the nature of the particular security work being undertaken but also whether the work was during the day or during the night. When further cross-examined the respondent confirmed that from the information provided by his friends who were security guards, the rate of pay was $28, $29 or $30 per hour for an eight hour day. However the evidence did not distinguish between the rates of pay for day-time as distinct from night-time work. 24 The only other witness to give evidence was Mr Chaouk of Neville's. In chief he gave evidence that the respondent was willing to work full-time for him and that he would initially be paid $250 per day plus GST but that: "Further down the track if he was to supply me more work, like - more work, I'd look into giving him more money." 25 Mr Chaouk also gave evidence that if he was satisfied that the respondent could cope with the full extent of cement rendering work he would provide him with more money, being $320 to $340 per day plus GST. 26 Mr Chaouk was cross-examined to establish that it was unlikely that a person of 60 years of age would be performing cement-rendering work of the nature of that which he had offered the respondent. He agreed that "at the moment" there were no 60-year-old cement renderers working for him. However, when it was suggested to him that a 50-year-old cement renderer could not provide the same standard of work as a younger man, Mr Chaouk responded that although that was so in that such a person would not be as quick, on the other hand he would be more knowledgeable about the trade, having had much more experience than a 20 or 30-year-old. When it was suggested to him that an older worker would receive less pay, Mr Chaouk agreed that it would be less, but not significantly so because: "[y]ou know someone's got to pay for his professionalism for all his years". 27 Although the respondent had given evidence that he thought he would become an employee of Neville's, Mr Chaouk was clear that he would only be engaged as a contractor. 28 In cross-examination Mr Chaouk said that the respondent would start as a casual and from there, depending how he went, he could be put on full-time. The following exchange then took place: "Q. So is it fair to say that in continuing to have him work as a contractor, it was dependant upon firstly I suppose, your assessment of him as a worker? A. Yeah, as a worker, what he can provide me with and like I said, it's not a hard trade. Q. And secondly, a reliance on a continued volume or work that would justify having him employed? A. That's true from your point of view but because I have other - lot of contracts and I know like if I can't get a job here, I'll get a job there. I'll get a job .. (not transcribable) .. like I've got Westminster, Clarendon. There's a few companies that I work with, like if that's not ready another one would be ready. Like I'll have continuous work."

The appellant's challenges to the primary judge's assessment of past and future economic loss and future medical expenses

Past economic loss 29 With respect to the first period of past economic loss, being from the date of the accident to 17 November 2006 (when the respondent completed a pain management course), the appellant's submissions can be relevantly summarised as follows: (a) The respondent's prospects for working continuously for Mr Chaouk from 15 February were uncertain as he was starting on a trial basis with no security of employment; (b) The respondent had given evidence that he was able to work before undertaking his pain management course but neither that matter nor the uncertainty of his continued engagement by Neville's had been adverted to by the primary judge although the evidence was indicative of the respondent's capacity to work during the period in question; (c) The first period for the assessment of past economic loss should be from the date of the accident to 12 July 2006 (74 weeks) being the day that he was seen by Dr Iskander who, in his report dated 11 July 2006, opined that he was fit for light duty type of work. Accepting the rate of $913 net per week, the respondent should be awarded the sum of $67,562 discounted by 20 per cent to reflect the uncertainty of his employment by Mr Chaouk during that period; (d) With respect to the period 13 July 2006 to 16 November 2006 (18 weeks), the respondent should receive an allowance of $500 per week net, totalling $9,000. 30 The appellant made two points. The first was that there was uncertainty with respect to the respondent's employment during the relevant period with Mr Chaouk. Reference was made to Mr Chaouk's evidence in cross-examination to support the submissions that the respondent was to start only as a casual rather than on a full-time (five days per week) basis. The second was that as a contractor rather than an employee, he could at any time be without work when not engaged to perform external rendering, such as when it rained for a period of time. 31 In my opinion, there is nothing in Mr Chaouk's evidence to which I have referred to above which supports any relevant uncertainty with respect to the period in question. It was not suggested to Mr Chaouk that the respondent would not have been working five days per week from the start or that at any time prior to the trial there had been periods when Mr Chaouk had been unable to engage his contractors on internal rendering when external rendering was not possible due to adverse weather conditions or for any other reason. I would therefore reject the appellant's submission that the 74 week period from the date of accident to 12 July 2006 should be discounted by 20% to reflect any alleged uncertainty of employment of the respondent by Neville's during that period. 32 The second point was that after 12 July 2006 the respondent was declared fit by Dr Iskander for light duty type work, which should result in a discount of the appropriate allowance for that period of some $413 net per week. During that period and, in fact, up to the date of trial, the respondent gave evidence that he had attempted to obtain light duty work but had been unsuccessful in doing so. The primary judge found that the respondent was initially totally unfit for work but later became fit for "very light part-time duties". Perhaps not surprisingly, he was unable to obtain such employment. 33 The respondent relied upon the recent decision of this Court, constituted by McColl JA and Hall J, in Kallouf v Middis [2008] NSWCA 61. In their joint judgment their Honours set out in some detail at [46]-[61] the relevant principles relating to the assessment of damages for economic loss both past and future. It was acknowledged (at [47]) that it was loss of earning capacity and not loss of earnings that was the subject of compensation. However, it was not incumbent upon an injured plaintiff to prove what employment he or she was incapable of performing. Rather, it was for a defendant who contended that the plaintiff had a residual earning capacity to "adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person": Rabay v Bristow [2005] NSWCA 199 at [73] per McColl JA. 34 The respondent placed particular reliance upon the following passages from Kallouf: "[84] The Court is in a better position to determine the extent to which a loss of earning capacity 'is or may be productive of financial loss' when considering the closed period between accident and trial: Tran v Younis [2006] NSWCA 188 per Handley JA (at [12]) (Hislop J agreeing). Given that the respondent had made some attempts to find employment but had failed, and having regard to the nature of the disabilities established on the medical evidence and the absence of any substantial attack upon the respondent's efforts to locate employment in the Hervey Bay area, there is, in our view, no basis for this Court to interfere with the assessment of past economic loss. [85] Whilst the closed period of seven years in the present case is a lengthy one the primary judge was entitled to bring into account the respondent's consistent pattern of pre-injury full-time employment in work, the nature and content of his post-accident disabilities and his genuineness in seeking light work. This is especially so when there was effectively no change [challenge] by the appellant to the respondent's attempts of rehabilitation and efforts to secure light work and no affirmative evidentiary case was raised by the appellant to establish that some lesser amount for past economic loss was appropriate." 35 It was further submitted that there had been no challenge to the primary judge's finding that during the period in question the respondent had unsuccessfully sought to obtain suitable work which, his Honour found "would have been fairly impossible for him to find … during that time." 36 The appellant submitted that Kallouf was distinguishable in that there had been a finding by the trial judge that for all practical purposes the plaintiff had lost his wage earning capacity due to his injuries. Although in that case the plaintiff had sought re-training and suitable alternative employment, having learnt the fundamentals of how to use a computer, Centrelink had not referred him for interview by a prospective employer. The trial judge accepted that the plaintiff was not beyond being re-trained to perform some employment task in some sedentary employment but nevertheless considered that for all practical purposes he had lost his wage earning capacity due to his inability to compete on the open labour market with a fit and healthy person for an employment position. 37 The appellant submitted that the present case was different. It was emphasised that the respondent had himself accepted that prior to his undergoing a pain management course he could have performed part-time security work. Although he had applied through Centrelink and Work Directions for light duty work, the evidence does not indicate whether that work included security work. Nevertheless on his own admission he retained an earning capacity and the fact that he was unsuccessful in finding work was irrelevant. 38 During the period in question the respondent was in constant pain and was taking Panadeine Forte and Nurofen Rapid Plus on a regular basis. His Honour found in accordance with the medical evidence that "[the respondent] was initially totally unfit for work. He then became fit for very light part-time duties and he is at the present time fit to work but unfit for cement rendering work …" 39 Those findings were predicated upon his Honour's reference to the medical evidence of Drs Chan, Wallace and Millons, to which I have already referred. In particular, I would understand his Honour's finding that the respondent was initially totally unfit for work related to the period from the date of the accident up to the time that he undertook his pain management course. Thereafter he became fit for very light part-time duties until the trial by which time he was fit for security work more or less on a full-time basis. Thus, as at January 2007 Dr Parmegiani, whose evidence the primary judge accepted, considered that it would be difficult for the respondent to work for more than 20 hours per week due to his psychiatric condition. 40 The primary judge was not bound to accept without qualification the respondent's opinion that he thought he could perform part-time security work prior to November 2006. He was entitled to assess that evidence in light of that of the medical witnesses. In so doing he found that, in truth, the respondent was unfit for work up to November 2006 when he undertook his pain management course. The evidence as a whole supported such a finding. 41 But a different point emerged during the hearing of the appeal. It was not contested that the respondent could only work as a security guard if he was licensed to do so. His unchallenged evidence was that prior to trial he could not afford the $600 that a licence would cost. There can be little doubt that, on the evidence, his restricted financial circumstances (his only source of income being unemployment benefits) was due to his inability to undertake his pre-accident employment as a consequence of the injuries sustained by him in the accident. Accordingly, in my view he did not have the capacity to obtain work as a security guard unless and until he had obtained the necessary licence to do so. 42 In the foregoing circumstances I do not detect any relevant error in the primary judge's assessment of past economic loss with respect to the period up to November 2006. 43 With respect to the period from 17 November 2006 to the date of judgment (27 November 2007), the appellant's submissions may be summarised as follows: (a) During that period the respondent had at least the capacity to work as a security guard and the earnings of a security guard were equivalent to his proposed income as a cement renderer; (b) In particular, the respondent's evidence was that he could have worked as a security guard in a monitoring room and in other security work that involved patrolling; (c) Although there was medical evidence that the respondent was not fit to work on a full-time basis prior to trial, his Honour had preferred the respondent's own assessment of his ability to work which was reasonable given that the respondent had previously worked as a security guard and was best placed to assess his ability to perform that work notwithstanding his knowledge of his limitations; (d) Accordingly, his Honour had erred in allowing the respondent a loss of earning capacity of $400 net per week for the period in question given the evidence that there was no difference between the income he would have received as a cement renderer and that of a security guard; (e) At most, the primary judge should have only allowed a loss of $100 net per week, a total of $5,400. 44 The evidentiary foundation for the appellant's submission to the effect that during the period in question the respondent could have earned as much as a security guard or as a cement renderer was based on the comparison of the respondent's and Mr Chaouk's evidence that he would have started his employment with Neville's in February 2005 at the rate of $250 per day gross and the respondent's evidence elicited in re-examination that his friends in the security industry had informed him that they were earning $30 per hour for an eight hour day or a total of $240 per day. 45 However, there are problems with this submission. First, the rate of $250 per day as a cement renderer was related to the initial rate of remuneration of the respondent in circumstances where Mr Chaouk's evidence was that "further down the track … I'd look into giving him more money" to the point that once he had established his ability and knowledge to carry out the full gamut of rendering work, he could earn $320 or $340 per day. 46 Second, both on the medical evidence and on the respondent's own evidence, there was significant doubt as to whether he could work full-time during the period in question. Although it was suggested to him that he could work full-time after he had undertaken the pain management course, the exchange to which I have referred to in paragraph [19] above does not indicate unconditional acceptance of that proposition. Furthermore, as the respondent submitted, the medical evidence tendered tempered this rather optimistic assessment by the respondent of his own abilities and expectations. 47 Third, the respondent's evidence was that even after he had undertaken the pain management course he was still in constant pain, although able to manage it better. There could be no doubt that in these circumstances it would be unlikely that he would be able to undertake full-time employment for 40 hours per week during the period in question. He was still suffering from significant disabilities that, as a matter of common sense, would have impacted upon his ability to work for a full day, let alone a full week. No doubt this was in his Honour's mind when he assessed his loss of earning capacity at only $400 net per week and which therefore assumed that he had a residual earning capacity of over $500 net per week. I further note that that figure is consistent with the respondent's evidence that the standard rate of remuneration for a security guard was $700 gross per five-day week. 48 In any event, the point made at [41] also applies to the period of past economic loss under consideration. At no time prior to the trial did the respondent have the capacity to undertake security work without a licence. He may have been physically able to do so but he could not lawfully do so due to the impact of his injuries on his financial circumstances. 49 Accordingly, in my opinion, no error on the part of the primary judge has been demonstrated. I would therefore reject the appellant's submission that the respondent's rate of loss with respect to the period 17 November 2006 to date of trial should be reduced from $400 per week to $100 per week.

Future economic loss 50 The appellant submitted that the primary judge erred by allowing the respondent a loss of earning capacity at the rate of $300 net per week for the whole of the respondent's remaining working life when the evidence established (i) and his Honour acknowledged, that the respondent would be unlikely to continue to work as a cement renderer to age 65; (ii) no ongoing loss of earning capacity, as his potential income as a security guard was the equivalent (if not more) than his potential income as a cement renderer; and (iii) that there were periods in the past when the respondent had been unemployed or only employed part-time so that his Honour erred in finding that but for his injuries he would have earned in excess of $950 net per week for the rest of his working life.

Accordingly, it was contended that a generous award of damages for future economic loss would be to apply a differential of $100 net per week for 19 years less 15% for vicissitudes. 51 As I have indicated, his Honour considered that the respondent had lost one-third of his future earning capacity. He therefore assessed future economic loss at the rate of $300 net per week. This assumes that but for the accident he would have had an earning capacity until age 65 of $900 net per week which is less than his Honour's finding that had he not been injured he probably would have been earning in excess of $950 net per week. 52 In my opinion, the appellant's submissions should be rejected for the following reasons. First, although his Honour acknowledged that the respondent would not continue as a cement renderer until the retiring age of 65 years, nonetheless he had a number of areas of employment upon which he could rely, including truck driving, handyman work and security work. Second, his Honour found that had the respondent not been injured he probably would have earned in excess of $950 net per week. This finding was generally consistent not only with the evidence of Mr Chaouk that eventually the respondent could have been earning $320 or $340 per day gross as a cement renderer but also with the respondent's evidence as to the earnings of a security guard of at least $30 per hour which, over a 40-hour week, would be $1,200 gross per week. 53 Third, although his Honour found that the respondent was fit to perform security work, there were still some constraints to that type of employment in that he was confined to working in front of a console or patrolling by foot premises such as schools and the like. Even so, while so employed he would have been subject to the continuing disabilities which his Honour accepted he was suffering including, in particular, constant pain. 54 Fourth, the primary judge expressly found that the respondent had "worked fairly continuously" soon after arriving in Australia in 1974. Although he had allowed the usual discount of 15% for vicissitudes, it was submitted that that discount should be increased to take account of the fact that the respondent had not been gainfully employed on a continuous basis since that time in that, for instance, he had been unemployed between 1995 and 1997 and was only employed part-time in security work in 2000. His Honour was aware of these matters: hence his finding that the respondent had worked fairly continuously since 1974. However, the respondent had given evidence that the primary judge had apparently accepted and which was not challenged, that prior to 2004 he had suffered from emotional problems due to difficulties in his marriage which had affected his motivation to work but which had, in effect, then been resolved. 55 In the foregoing circumstances, in my opinion it was open to his Honour to find that compared to his pre-injury work capacity, the respondent had sustained a partial loss of earning capacity which he assessed as at least one-third. Given his finding that but for his injuries he would have been earning in excess of $950 net per week, an allowance of $300 net per week is in fact equivalent to a loss of earning capacity of less than one-third. 56 Accordingly, in my view, no error has been demonstrated with respect to his Honour's assessment of future economic loss and the submissions of the appellant with respect thereto should be rejected.

Future medical expenses 57 The appellant submitted that the primary judge had not indicated the number of additional visits to his general practitioner or the number of physiotherapy sessions per annum that the respondent would undertake or the quantity of medication that might be required in the future. Given the respondent's evidence as to his current condition and ongoing improvement, in the absence of medical evidence an appropriate award for future medical expenses would have been $240 per annum for additional visits to a general practitioner, $360 for six physiotherapy sessions per year and $200 per annum for additional medication, a total of $800 per annum over an agreed life expectancy of 40 years, thus generating an award of $14,000. 58 It is true that the evidence relating to these matters was somewhat cryptic. However, the evidence of Drs Chan, Parmegiani and Wallace as at January and March 2007, and to which I have referred at [11], [13] and [15] above, was that the respondent required the following on-going treatment:

■ monitoring by his general practitioner six times per year at a cost of $60 per visit; ■ ten sessions of physiotherapy at $72 per session and ten sessions of remedial massage at a cost of $60 per session (Dr Chan);

■ 20 visits per year at a cost of $60 per visit for two years for physiotherapy, hydrotherapy and massages (Dr Wallace);

■ six months gym membership at a cost of $770 (incl GST) (Dr Chan);

■ antidepressant medication at a cost of $29.50 per month for two to three years (Dr Parmegiani) and $100 per annum for continuing pain relief medication (Dr Chan);

■ bi-annual visits to his treating orthopaedic surgeon at a cost of $220 per visit for two years (Dr Wallace);

■ four visits per year to a rehabilitation medicine or pain medicine specialist for three years (Dr Chan) at, say, a cost of $220 per visit;

■ eight sessions at a cost of between $160 to $260 per session with a specialist psychiatrist (Dr Parmegiani). 59 The primary judge accepted a need "from time to time" for the respondent to see a general practitioner and a physiotherapist and to take prescribed medication. Contrary to the submissions of the appellant I do not believe he intended to rule out entirely visits to medical specialists, a gymnasium and the receipt of massages "et cetera". His finding, which was consistent with the medical evidence, was that the respondent did not need to "constantly" visit specialists etc. I would understand his Honour to be saying that there was no need for such visits to be at predictable intervals. The evidence to which I have referred only suggested a limited number of physiotherapy visits, massages and visits to specialists for a period of two or three years. 60 If one were to estimate the costs of the treatment referred to at [58] above, they would comprise:

■ $6352 over 40 years for visits to a general practitioner using the 5% tables;

■ $1764 over 40 years for pain relief medication using the 5% tables;

■ $2,400 over two years for physiotherapy, hydrotherapy and massages;

■ $880 for four visits over two years to the treating orthopaedic surgeon;

■ $2,640 for twelve visits over three years to a rehabilitation or pain medicine specialist;

■ $1,760 for eight visits to a specialist psychiatrist at $220 per session.

The above costs total $17,628 which I would round up to $18,000. 61 As I have observed, the primary judge found that there was no need for the respondent to "constantly visit" specialists, a gymnasium or to receive massages. At its highest the evidence of Drs Chan, Parmegiani and Wallace, if accepted in its totality, justified an award for future medical expenses of $18,000. This falls well short of his Honour's award of $25,000 which, in my opinion, is unsupported by the evidence. 62 The respondent submitted that even if one accepted the general approach suggested by the appellant, his Honour's actual award of $25,000 could be broken down by allowing, for 40 years, $400 per annum for medication (double the amount conceded by the appellant) and 12 physiotherapy visits per annum. In view of the medical evidence on this issue to which I have referred, I am unable to accept this submission. 63 During the hearing the respondent submitted a schedule of future medical expenses totalling $20,901 and which generally included most of the costs to which I have referred in [60] above. That figure differs from that calculated by me in that the respondent included an amount of $5,025 for anti-depressant medication over three years. That figure was derived from the evidence of Dr Chan who costed the relevant medication at $1,675 per year, a figure which it was accepted did not take into account PBS benefits. 64 However, Dr Parmegiani costed the same medication at $29.50 per month net of those benefits. No reason was advanced as to why the respondent would not be entitled to those benefits. If one substitutes Dr Parmegiani's costing for that of Dr Chan's, the respondent's schedule of future medical expenses for which it contends is reduced to $16,958 or $17,000 in round figures. 65 In my opinion the appellant's challenge to the primary judge's award of $25,000 for future medical expenses should succeed. His Honour's award should be reduced to $18,000.

The respondent's cross-appeal 66 The respondent cross-appeals on the ground that his Honour erred in not awarding interest on past economic loss and in not awarding damages in respect of loss of past and future superannuation benefits. 67 Insofar as the first ground is concerned, the appellant properly concedes that his Honour ought to have allowed interest on past economic loss. On the basis that the primary judge's award of past economic loss survives the appellant's challenge thereto, the parties agreed that the amount of that interest is $10,372. 68 The primary judge declined to make an award in respect of loss of past and future superannuation benefits as he did "not believe on the evidence before me [the respondent] was entitled to any". It would be reasonable to infer that the basis of his Honour's belief, at least in part, was Mr Chaouk's evidence that the respondent would have worked for him as an independent contractor and not as an employee. However, the respondent submitted that although it may have been appropriate to discount any entitlement to lost superannuation benefits on the basis that the respondent would have worked for Mr Chaouk as a contractor, there should have been some allowance for loss of superannuation benefits given his Honour's finding that at some point of time prior to reaching the age of 65 years the respondent would have ceased to work for Mr Chaouk as a cement renderer and would have sought employment in other fields, including as a truck driver or security guard. It was submitted that in those capacities the probability was that the respondent would have been engaged as an employee and thus entitled to superannuation. 69 The difficulty facing the respondent is that there was little evidence as to when he would have ceased employment with Neville's as a cement renderer and thereafter been engaged in some other capacity. His Honour only found that he would have worked as a cement renderer for "at least a period of time" but that he "would not have done that all his life". The assumption was that at some point over the 19 years between the date of trial and his reaching the age of 65 years the respondent would have ceased to be a contractor and become an employee. The difficulty is, first, when that would have occurred; and, second, that although it was probably more than likely that he would have become an employee, there was no certainty of that and he may have continued to work as an independent contractor either as a truck driver or as a handyman or even in the security industry. 70 In these circumstances, there can be no doubt that there was no error in the primary judge finding that the respondent was not entitled to any award for lost superannuation up to the date of trial. Even with respect to the future, one could only speculate as to when, if at all, the respondent might have ceased to be a contractor and become an employee. The evidence was so vague and unsatisfactory that in my opinion, it was open to his Honour to decline to make an award for future loss of superannuation. No error in doing so has been disclosed. In these circumstances, this ground of the respondent's cross-appeal should be rejected.

Conclusion 71 For the foregoing reasons in my opinion the appellant's appeal, except with respect to the award of future medical expenses, should be rejected as should the second ground of the respondent's cross-appeal. The award of the primary judge for past and future economic loss should stand subject to the addition of the amount of $10,372 to represent interest on past economic loss. The award for future medical expenses should be reduced by $7,000. The net result is that the damages awarded by the primary judge to the respondent will be increased by $3,372. 72 As to the costs of the appeal and cross-appeal, the appellant has been partly successful on what was a discrete but relatively minor issue. In my opinion the appellant should pay 80% of the respondent's costs of the appeal. As both parties have had some success on the cross-appeal and as it did not lengthen the hearing time, each party should bear his or its own costs thereof. 73 I would therefore propose the following orders: (a) Appeal allowed in part.

(c) Set aside the judgment of Judge Garling in the sum of $332,896 made on 27 November 2007 and substitute therefor judgment for the respondent in the sum of $336,268, such judgment to date from 27 November 2007.

(d) The appellant to pay 80% of the respondent's costs of the appeal.

(e) Each party to pay his or its own costs of the cross-appeal. 74 BELL JA: I agree with Tobias JA. **********

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At a glance

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Decision date

Before

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Source

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Judgment (43 paragraphs)

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Cases Cited (3)