HH ROBERTSON (AUSTRALIA) PTY LTD v PIGGOTT [1990] NSWCA 94

HH ROBERTSON (AUSTRALIA) PTY LTD v PIGGOTT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and HANDLEY JJA 5 February 1990, 5 February 1990

[1990] NSWCA 94 Accident — Industrial accident — quantum excessive

Clarke JA On 30 March 1985 the respondent, then thirty years old, fell in excess of fifty feet from framework on a turbine house at the Mount Piper Power Station and landed on the hard dirt below. Not surprisingly, he suffered very severe injury. He sued the appellant, his then employer, claiming damages in respect of those injuries. His claim was heard by Wood J at Dubbo on 22 and 23 June 1988, and on 24 June his Honour gave judgment in favour of the plaintiff in the sum of $604,437.

The appellant in this appeal challenges the amount of damages, and has submitted that the amount awarded was excessive as a consequence of failure by his Honour to provide proper compensation in respect of two elements of the damages. To put it another way, the appellant has challenged only those elements of the award which concern impairment of the respondent's earning capacity from the time of trial, and general damages. It is, I think, true to say that, in most other respects, the figures which comprise the ultimate sum were the subject of agreement between the parties. The issues, or at least the major issues, at the trial concerned the two elements the subject of the present appeal.

After the respondent fell, he was taken initially to Lithgow District Hospital and then was transferred to Westmead Hospital, where he remained for some months. Later in the year he was returned to his home in Portland, which is near Bathurst, and for many months after his return to his home, he attended Bathurst Rehabilitation Unit on a daily basis. The precise time during which he went to the Rehabilitation Unit is not completely clear, but it is sufficient for present purposes to note he went there for many, many months. Initially, the purpose of those visits was to receive physiotherapy treatment, but later the treatment was broadened to encompass attempts to deal with his cognitive difficulties resulting from the brain damage, which I will shortly mention.

The injuries which the respondent suffered were, as I have said, very severe but they can be conveniently summarised as follows: A closed head injury, with a lengthy period of unconsciousness, resulting in post-traumatic amnesia of at least seven days duration; a fracture of the left distal radius; a fracture dislocation of the left mandibular condyle; a fractured left tibia and fibula; a comminuted compound fracture dislocation of the left ankle; a fracture of the shaft of the left femur; a fractured pelvis; fractured ribs; fractures of both maxillae and ethmoid bones; loss of some teeth. The injuries were complicated by pneumonia and fat embolism and a grand mal fitting all of which occurred while he was in hospital.

That rather stark description of his injuries no doubt does not do them complete justice, but it does serve to demonstrate the wide area of impact of the fall upon the respondent.

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The respondent's continuing disabilities were not really the subject of serious dispute at the trial. They were summarised by his Honour the trial judge in terms which, for the sake of clarity, I will reproduce in this judgment:

(a) Severe impairment of short term memory;

(b) Mood swings, shortness of temper, irritability towards his wife and children, inability to accept criticism or handle stress, and child-like or immature behaviour;

(c) Slowness of thinking and reaction time, an inability to concentrate on reading or watching television;

(d) Severe headaches experienced about three times per week;

(e) Pain and difficulty with eating, particularly meat and fruit associated with cracking and a feeling of the jaw being displaced from time to time;

(f) Pain and loss of power in the left wrist, and difficulty with lifting in cold weather;

(g) Kinking sensation and pain the the neck;

(h) Severe pain in the lower back;

(i) Swelling and severe pain in the left ankle, particularly of a morning, which has left him with a significant limp and prevented him from engaging in prolonged walking or heavy exercising;

(j) Pain in the site of the fracture of the left femur and hip joint;

(k) Pain and swelling in the right knee;

(1) Pain in the pelvic region;

(m) Inability to enjoy sexual intercourse because of pain associated with that activity.

I should also add that there appears to be a real possibility, if not probability, that the respondent will need to undertake an arthrodesis of his left ankle in the future; and a possibility, albeit slight, that he may have to have an arthrodesis of his left wrist and some surgery to his jaw. The two latter possibilities are, as I have indicated, quite remote and present as but a small feature of the compensation problem which faced his Honour in this case.

Wood J concluded that, in reality, the respondent should be compensated upon the basis that he would never work again, and that he should be regarded as unemployable. That conclusion has not been challenged, but the appellant submits that, notwithstanding that it was proper to assess the compensation for loss of earning capacity upon the basis that the respondent is unemployable, his Honour's award was falsified by two errors.

The parties agreed at the trial that, if the respondent had remained in the employ of the appellant, he would, at the time of trial, have been earning $424.65 nett per week. His Honour, accordingly used this figure as a base for determination of the proper compensation. Evidence at the trial, however, revealed two factors which were relevant for consideration in computing the award of compensation. The first was that the agreed figure represented the wages of a roof plumber, which work, his Honour found, was more highly paid than other plumbing work because of the risks involved in that particular work. His Honour also accepted that it was improbable that the respondent would have worked for ever in that more exposed and better remunerated position.

The second matter that needed special consideration related to the respondent's work history prior to his employment with the appellant. He had, after qualifying as a plumber, worked in one job until 1979 and then worked for about two years as a plumbing contractor on his own account. In 1980 he decided to go North to Queensland because of an illness that his middle son was suffering. He remained

URJ HH ROBERTSON (AUSTRALIA) PTY LTD v PIGGOTT (Clarke JA) 3

in Queensland from about 1980 to 1984 working there as a plumber in employment. It would appear, however, that his work in Queensland was not as regular as it had been in the Portland District where he had grown up, and that he suffered periods when he was unemployed. His Honour concluded that it was appropriate to approach the compensation assessment upon the basis that, for that four-year period, the respondent had been unemployed for an average of about two or three months each year.

In order to accommodate these two features, his Honour reduced the agreed figure to the sum of $395 per week and having capitalised that in the conventional manner he applied a discount of fifteen per cent, which is not an unusual percentage discount for the contingencies.

The appellant's counsel submits that this reduction of just under $30 per week does not represent a proper assessment of the impact which the past work history and the high earnings of a roof plumber should have had upon the assessment of damages. In particular, the appellant's counsel submits that the adjustment which was necessary to do justice between the parties, should have resulted in a base figure of about $326. If one adopted that figure, one would arrive at an end result which was lower than the amount awarded by his Honour.

There are some difficulties with this submission because, at the time of accident, the respondent had been working back in his home base, in an area where he had not suffered lengthy annual periods of unemployment, and there was a need for his Honour to exercise care not to be unfair to the respondent by placing too much emphasis on what had occurred in the four years he had been in Queensland during his son's illness. Furthermore, there was no evidence of the difference in earnings between a roof plumber and other types of plumbers. All that the court was told was that a roof plumber earned more than others.

In these circumstances, it would seem to me that it would have been quite wrong for his Honour to make a large discount from the weekly wage and, as well, apply a fifteen per cent discount for vicissitudes. Speaking for myself, I think his Honour's approach was probably the best approach that could be adopted in the circumstances of this case, and I find nothing wrong with the quantification of his discount of just under $30.

There is, however, one further challenge to the allowance for this element of damages. There was no evidence called as to the age to which the respondent hoped to work; there was no evidence called as to the normal retiring age of plumbers or, indeed, of males in the Australian community. In these circumstances, and in accord with what I might describe as the "conventional" approach, his Honour assumed a working life that would continue until the respondent reached the age of sixty-five years - which, incidentally, is the age at which he would become entitled to a pension.

Mr Oslington, senior counsel for the appellant, submits that, while it is open to a trial judge to use judicial knowledge in relation to likely retirement ages for the purposes of the assessment of damages, he should, in accordance with what now occurs in society, have adopted the age of sixty. According to Mr Oslington, if a judge is to use judicial knowledge of retiring ages, he should adhere rigidly to what was said to be the known likely retiring ages in contemporary times.

I would not disagree that if there was evidence that the great bulk of men in the Australian community retired at the age of sixty rather than sixty-five - or that the great bulk of plumbers have done so - there may have been a basis for the use of a retiring age different to the conventional age, which I have indicated is sixty-five. But there was absolutely no evidence to that effect in this case and I

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am not persuaded that there is any indication that the retiring age has changed dramatically in this country in the last twenty or so years, and that judges should from now on apply judicial knowledge of a retiring age of sixty. In my opinion, this ground of appeal fails because of want of proof. It is not, in reality, a matter in which judicial knowledge required the trial judge to act on a retiring age of sixty. Accordingly, I would reject both challenges to the award for impairment of his earning capacity, and uphold his Honour's finding in that regard.

The appellant then turned his attention to the assessment of $180,000 which was awarded by way of general damages.

According to the submissions, the award did not accord sufficient weight to the following factors:

(a) The respondent was mobile, insofar as he was able to walk, albeit with difficulty and a relatively short distance;

(b) He was able, in general terms, to attend to his domestic needs;

(c) He was able to perform some domestic tasks around the house;

(d) He was able to drive, albeit for short distances; and

(e) He was able to watch television, read newspapers, and ride a bicycle.

I would interpose, in this respect, that his capacity to watch television was very limited and provides some understanding of the extent of the effect of the head injury on his cognitive skill. He said that he was only able to watch for a few minutes, because he lost the thread of what was occurring.

(f) His condition resulting from the accident was unlikely to deteriorate, except for the ankle injury, and any deterioration in this respect would be met by an arthrodesis which would remove the pain.

Senior counsel also submitted that there was an indication in the judgment itself of an approach by his Honour which indicated error. His Honour observed that no amount of money could adequately compensate the plaintiff for the disabilities which he had suffered and which he would continue to suffer. Although the comment is not inapt, counsel submitted that it reflected an approach which the judgment of Gibbs and Stephen JJ in Sharman v Evans 138 CLR and 585 had suggested to be erroneous, that is, that his Honour had given way to an instinctive response that no amount was too large to atone for the respondent's suffering. Mr Oslington also submitted that, in awarding such a large sum by way of general damages, his Honour failed to give sufficient weight to the fact that the award of damages under the other heads freed the respondent from economic uncertainty, and gave him funds for pleasurable activities.

Senior counsel for the respondent countered these submissions with a detailed reference to the facts, and a catalogue of all the respondent's disabilities and the ways in which his lifestyle had been affected. He summed up by saying that the respondent had suffered very horrifying injuries which had led to very grave orthopaedic disabilities, which involved him in constant pain in various parts of his body - such as, in particular, his ankle and his lower back - and, in addition, he suffered from the effects of brain damage which rendered his life nearly useless. All this was made much worse, counsel submitted, by the respondent's own appreciation of his deficiencies and the way he had been transformed from an athletic, sporting sort of man to one who was severely disabled.

At first blush, the award of $180,000 does seem high, and I have given anxious consideration to the question whether it falls outside the limits for sound discretionary judgment. In the ultimate, however, I have concluded that it does not and that, in order to give full weight and properly to compensation this

URJ HH ROBERTSON (AUSTRALIA) PTY LTD v PIGGOTT (Handley JA) 5

respondent, it was necessary for his Honour to award a large sum of general damages, and I am not persuaded that the amount actually awarded exceeded a sound discretionary judgment.

Having said that, I wish also, to refer to something that appears in the judgment itself. After announcing his award, his Honour said this: "This figure was within the range for which each counsel contended."

During the hearing in this Court, senior counsel for the respondent - who was at the trial - informed the court that, in line with his usual practice, Wood J asked each counsel what was an appropriate award for general damages. Counsel for the appellant nominated $150,000 and counsel for the respondent nominated $200,000. Clearly the figure awarded fell almost mid-way between the two.

Although his Honour's duty was to award compensation which he thought fairly represented the general damages, he was not bound, in my opinion, to disregard the statements or concessions made by both parties. Indeed, although one may expect one side to place a low figure and one side a high figure, common sense would indicate that counsel for a defendant would not be conceding an award of compensation which exceeded an appropriate award in the circumstances. It seems to me that his Honour was entitled to use those figures as appropriate guides in determining what the ultimate figure should be. If that is correct, then I am reinforced in my opinion that the award did not exceed what was appropriate in the circumstances.

I would, therefore, reject the second area of challenge, with the consequences that the appeal should, in my opinion, be dismissed with costs.

Mahoney JA I agree. I also was of the opinion that the amount awarded for general damages was large and, my reaction was, large to the extent that it was beyond the range of a sound discretionary judgment. However, in all of the circumstances including the matters to which Clarke J has referred, I do not think that it is appropriate that the court set aside the award in this case. I agree with the orders proposed.

Handley JA I also agree. The primary findings of fact of the trial judge record in detail the serious orthopaedic injuries suffered by the plaintiff, as it were from head to toe, and the serious brain injuries and their consequences so far as the plaintiff's ability to reason and recall and decide how he will behave in the ordinary affairs of life. The combination of these physical injuries and the brain injuries, in my view, do support the assessment of general damages by the trial judge - although, as the other members of the Court have said, the award, perhaps is at the high end of the range.

Ido, therefore, agree with the orders proposed by Clarke J and with the reasons he has otherwise given for those orders.

The order of the Court, therefore, is that the appeal will be dismissed with costs.

Counsel for the Appellant: B Oslisngton QC and A McQuillen Solicitors for the Appellant: Hunt and Hunt Counsel for the Respondent: MD Ireland QC and LG Stone

Solicitors for the Respondent: Knox's, Rylstone