NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD [1995] NSWCA 327

NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and POWELL JJA

2 November 1994, 23 August 1995

APPEAL — Admission of fresh evidence — Matters occurring after trial — Quantum of damages for personal injuries — Termination of employment by respondent employer after trial

APPEAL — Practice and procedure — Admission of fresh evidence — Discretion — Principles applicable — Quantum of damages for personal injuries — Termination of appellant's employment by respondent employer after trial

Mahoney JA The plaintiff was injured in circumstances such that the defendant is liable to him in damages. The injuries the plaintiff suffered reduced his working capacity but did not totally disable him from working. On 17 July 1991 Wood J held that the defendant should pay the plaintiff $125,265 of which $65,000 was awarded for, as it has been described, future economic loss. The plaintiff has appealed to this Court against the award and has asked that the damages "for future impairment of economic capacity" be reassessed.

The facts are set forth in the judgment of Powell JA and I shall not recapitulate them.

The plaintiff's argument on appeal may, at the risk of over-simplification, be reduced to the following steps: the learned judge assessed the plaintiffs future economic loss upon a particular basis; that basis was false or has since proved to be false; in such circumstances the Court of Appeal can intervene; and, in the circumstances of this case, the Court of Appeal should intervene. The submissions which have been made upon the appeal may, I think, be conveniently dealt with by reference to these matters.

1. THE BASIS ON WHICH THE JUDGE ASSESSED DAMAGES FOR THE PLAINTIFF'S FUTURE ECONOMIC LOSS:

In principle, the loss in question is loss of economic capacity and damages are awarded for loss of that capacity: see Bresatz and Anor v Przililla and Anor (1962) 108 CLR 541 at 542-543 per Windeyer J; McGregor on Damages (1988) 15th ed at par 1450. However, it is accepted that, in assessing such damages, the Court can and should have regard to the actual loss which the plaintiff will or will be likely to suffer. In the present case, the injuries suffered by the plaintiff resulted in his being "only fit for work that does not require strenuous or repetitive bending, twisting or lifting or the maintenance of a static posture for lengthy periods, whether that be sitting or standing". The result is that, as the judge found, "he is disadvantaged in his present employment, because his range of work is limited, and he is obviously at a substantial disadvantage in the labour market". Accordingly, he had a "reduced attractiveness... as a worker, both to the defendant and to other employers" and "he may be disadvantaged in the event of redundancies being forced upon that employer, by deteriorating or changing economic conditions".

In an ordinary case, a judge assessing damages for such future economic loss would take into account at least two things: that the plaintiff's reduction in capacity for work would be apt to result in his earning, when in employment, less

2 UNREPORTED JUDGMENTS

than otherwise he would; and that his limited work capacity would be apt to result in difficulty in obtaining and/or retaining work, with consequent periods of unemployment.

I come now to consider what in fact the judge did in this regard. His Honour gave him "a buffer for his reduced working capacity over the remaining expected working life" and assessed this loss at $65,000. The parties have accepted that $65,000 represents about $100 per week for twenty-three years, discounted in accordance with ordinary principles for vicissitudes. (This was the conclusion of Clarke JA when his Honour came to consider the plaintiffs application for leave to file a notice of appeal out of time). The plaintiff was forty-two years old at the date of trial and accordingly what the judge did, stated in general terms, was to give him the present value of a loss of $100 per week for the balance of his anticipated working life. I am satisfied that his Honour's purpose was to award the plaintiff $65,000 because it represented, as I have said, the present value of a loss of $100 per week for the rest of his working life. In his judgment his Honour referred to the possibility of future periods of unemployment. He referred to the fact that "there is no guarantee of" his employment with the defendant continuing. His Honour took into account "the reduced attractiveness of the plaintiff as a worker both to the defendant and to other employers" and, as I have said, the fact that he "may be disadvantaged in the event of redundancies...".

His Honour indicated in terms the basis upon which he assessed this aspect of the award as he did. He said:

"T must accept the submission put on behalf of its counsel that the contrary is the situation, and that he will continue to be employed by it. However, if it turns out that such submission is not supported by the subsequent events, then it must be recorded that this Court will have been misled by the defendant in a way which could only be described as discreditable and entirely unacceptable.

It is on the basis that the defendant has no present plan to dismiss the plaintiff and has no intention to look for an excuse to downgrade or terminate him that I assess damages today. If it turns out that such submission is wrong then the damages awarded to the plaintiff will inevitable be substantially less than they should be."

Counsel have submitted that it is not clear from the terms of his judgment why precisely his Honour assessed these damages at $65,000. Reference was made by Mr Hall QC for the plaintiff and by Mr O'Connor QC for the defendant to other passages in the judgment and to other material before the Court. They have contended for differing interpretations of what his Honour did.

I agree with the conclusion of Clarke JA in the prior application made to him that "the reason which led his Honour to adopt that figure was that his Honour concluded that the claimant would continue to be employed by the opponent indefinitely". This, in my opinion, is what is to be derived from his Honour's acceptance of the submission put on behalf of counsel for the defendant "that he will continue to be employed by it". Some of the other observations made by the trial judge are, it may be, not completely consistent with that view. Terms such as "misled", "discreditable" and "entirely unacceptable" and to what has been described as "the bona fides issue" may lead to uncertainty in this regard. But in the end I am of opinion that the judge accepted as the basis for his assessment of the $65,000 "that he (the plaintiff will continue to be employed by it (the defendant)".

2. THE FALSIFICATION OF THE BASIS OF THE JUDGMENT:

URJ NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD (Mahoney JA) 3

The plaintiff has sought leave to adduce evidence to show that, following the judgment of 17 July 1991, the plaintiff was asked to accept redundancy on at least three occasions; that on his refusal he was, on 12 August 1991, transferred to a lower (Grade 3) position of "shift tester", with a reduction in salary of about $ 110 per week; that between that time and May 1992, there were a number of occasions on which negotiations took place between the plaintiff and the defendant as to the work to be done by the plaintiff; and that on 19 May 1992 the plaintiff was informed that his employment would be determined as on redundancy from 31 May 1992. I have stated only in summary form the evidence which the plaintiff has sought leave to adduce.

I do not accept that what occurred involved mala fides on the part of the defendant. I accept the finding of the trial judge that there was in this regard no mala fides in the making of the submission which counsel for the defendant made at the trial. I do not accept that, insofar as the evidence extends, it shows that there was mala fides in what the defendant did thereafter.

However, insofar as the judge assessed damages upon the basis that the plaintiff'will continue to be employed by" the defendant indefinitely, that basis has been proved to be wrong.

3. CAN THE COURT OF APPEAL INTERVENE?

The appeal to this Court is an appeal by way of rehearing within the terms of s75A of the Supreme Court Act. Such an appeal involves a rehearing but ordinarily upon the evidence given at the trial. Further evidence is admitted in the circumstances referred to in s75A(7) and (8).

Upon a rehearing, this Court is required to give such judgment as appears proper upon the evidence before it: Warren v Coombes (1979) 142 CLR 531 at 552. As Gibbs ACJ, Jacobs and Murphy JJ said, this Court must on appeal come to its own decision:

"The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In doing so it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment."

Their Honours also said that this Court is "obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge": at 553. However, ordinarily it will not interfere unless error be shown: error of law, fact, or otherwise. But the Court's power to intervene on appeal is not limited to cases in which, on its reconsideration of law or fact, error has been shown. The Court may intervene where, for example, the trial has miscarried for reasons other than error of that kind: see generally Burchett v Kane [1980] 2 NSWLR 266; Halsbury's Laws of England, 4th ed, Vol 37, para701 et seq.

In this regard the plaintiff's submissions suggested, inter alia, two things: that upon the evidence then before him the judge erred in the basis on which he assessed economic loss; and that further evidence should be admitted to establish that the basis on which he assessed such damages was or has proved false.

Stated broadly, it is the function of a trial judge to find the facts relevant to the assessment of damages, and then, upon the basis of those facts, to assess such damages. It is not proper for a trial judge to act upon mere assumptions unless and to the extent that he adopts those assumptions as findings of fact. Thus, in a case such as the present, it would not be open to a trial judge to refrain from

4 UNREPORTED JUDGMENTS

finding whether or not a plaintiff would be, in the sense here relevant, continued in employment by the defendant but merely to assume that he would and to assess damages upon that as an assumption. The process of trial and the need for finality of decision require that facts be found and not merely assumed: see, eg, Mulholland v Mitchell [1971] AC 666 at 678-679 per Lord Wilberforce. Accordingly, if what the trial judge here had done was merely to assume that the plaintiff "will continue to be employed by" the defendant without so finding, and to have assessed damages accordingly, then the trial would have miscarried and it would be necessary for this Court to reassess, or direct reassessment of, the relevant damages.

I was at first attracted to the view that the judge had in this case acted upon assumption rather than finding. But I have in the end come to the conclusion that he acted upon a finding of fact. I construe his judgment as indicating that he had made a finding of fact that the plaintiffs employment with the defendant would continue but that that finding did not involve that he would be employed by the defendant indefinitely. The learned judge, by his reference to "redundancies being forced on that employer" and to the possibility that he would "lose his present employment", indicated that he was acting upon the basis that there was no present intention to terminate the employment but that, in the future, that employment might come to an end. He assessed damages upon that basis. His Honour concluded, I think, that the defendant had at the trial no intention to terminate the employment or "to look for an excuse to downgrade or terminate him"; he accepted, however, the possibility that downgrading or termination might subsequently occur.

In relation to the second submission to which I have referred, Mr Hall QC pressed the view that where there has been (I shall use a neutral word) the falsification of an assumption or basis of this kind the judgment may be set aside and that, within s75A, further evidence may be admitted to prove that the assumption or finding has been falsified. In this regard he referred to Mulholland v Mitchell [1971] AC 666; Warr v Santos [1973] 1 NSWLR 432; and Doherty v Liverpool District Hospital (1991) 22 NSWLR 284.

An appellate court on a rehearing may admit further evidence where justice so requires. The circumstances in which this may be done were considered at length by this Court in Warr v Santos [1973] | NSWLR 432 and subsequently in Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 and Doherty v Liverpool District Hospital (1991) 22 NSWLR 284. It is, in principle, neither practicable nor desirable to evolve formulae which restrict the powers of an appellate court beyond the limits of the principles in question. Each case must depend upon the court's view of what the requirements of justice are. However, it is appropriate that the court, by a process of decision, indicate the kinds of cases in which it is or is not likely to be held that the requirements of justice require the admission of further evidence. This, as was suggested in Radnedge: at 251; is a normal process for indicating the practical operation to be given to a general discretion. Thus, where contingencies existed at the time of judgment which were apt to affect the quantification of damages, the fact that those contingencies have materialised, one way or the other, is, special cases apart, no basis for the admission of fresh evidence to show that fact or to lead to reassessment of the damages. See generally Sinclair v Graham and Anor [1984] 2 NSWLR 253; Costi v Keats [1972] 2 NSWLR 957; Warr v Santos [1973] 1 NSWLR 432. See also Mulholland v Mitchell [1971] AC 666.

4. SHOULD THE COURT INTERVENE IN THIS CASE?

URJ NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD (Powell JA) 5

Had the fact been, without more, that the defendant had terminated the plaintiff's employment when it did and for the reasons then stated, I do not think that a credible case could have been advanced in support of the present application or the appeal. The difficulty in the present case arises from the fact that, as Mr Hall QC stressed, the plaintiff's employment was downgraded within less than a month after the judgment. I accept that that fact does not indicate that the submission made for the defendant at the trial was then false. Nor was there then an intention to "downgrade" the plaintiff's position. But, if the further evidence be admitted, it would in my opinion show that the possibility of downgrading the plaintiff's employment was, at the time of the trial, actively under consideration.

Is this a ground for allowing further evidence and setting aside the judgment? In the circumstances, I do not think that it is. At the time of the trial the plaintiff was aware that there was a real possibility of his being downgraded and he could have given evidence about that fact and the state of the discussion of it. The possibility of downgrading was taken into account in the judge's judgment. The evidence sought to be adduced would not establish that the downgrading was, for example, deliberately withheld by the defendant until after the trial. In these circumstances, I do not think evidence should be admitted to establish the fact that downgrading took place after the trial.

The possibility of the plaintiff being made redundant or dismissed was also present to the judge's mind: he took it into account. The evidence sought to be adduced would not establish that it was delayed deliberately until after the trial. The termination of the employment did not take place until some months after the trial. The circumstances in which it took place were, I think, circumstances of the kind which generally the judge had in mind as a possibility when he assessed damages. In the circumstances, I do not think that the evidence tendered for this purpose should be admitted

For these reasons, I would dismiss the appeal with costs.

MEAGHER JA: I agree with Mahoney JA.

Powell JA Two questions have arisen for determination upon this Appeal - the time for commencing which was extended by Order made by Clarke JA on 21st March 1994 - in respect of a verdict found and Judgment entered by, Wood J on 17th July 1991, when sitting at Albury, in favour of the Appellant in an action which he had brought against the Respondent to recover damages for personal injuries which he sustained whilst working at the Respondent's plant in Albury. Those questions are:

1. whether the Appellant ought be granted leave to tender on the hearing of the Appeal fresh evidence, that fresh evidence relating to the termination, as and from 31 st May 1992, of the Appellant's employment with the Respondent; and

2. whether or not leave so to do be granted to the Appellant, whether the assessment made by Wood J of the damages to be allowed to the Appellant for "future impairment of earning capacity" were appealably inadequate so that, either, the damages ought to be reassessed by this Court, or, there ought to be a new trial limited as to damages.

The principal incident which gave rise to the Appellant's claim for damages - two later incidents were also the subject of a claim by the Appellant for damages but those incidents were held by Wood J not to give rise to liability in the Respondent - occurred as long ago as August 1985 at which time the Appellant was employed as a "Fourth Hand" on a machine, or in a part of the Respondent's plant, known as a "calendar stacK'. It is unnecessary, for the purposes of this

6 UNREPORTED JUDGMENTS

Judgment, to record the particular circumstances which gave rise to the injury which the Appellant claimed to have sustained in the incident in question, as Wood J held - and the Respondent has not sought to appeal in respect of his so doing - that those circumstances were sufficient to subject the Respondent to liability both at common law and for breach of a statutory duty. Nor is it necessary, for the purposes of this Judgment, to record in any detail the nature of the Appellant's injury, it being sufficient to record that,as the result of what occurred, the Appellant fell heavily on his buttocks, the consequence of his so doing being that he suffered a compression injury to the L4/5 disc, leading to inflammation of the supporting ligaments which thereafter progressed and deteriorated with the passage of time and in consequence of the stresses imposed upon the Appellant by other physical activities which he was called upon from time to time to undertake. In this regard, Wood J recorded his view that the aggravation and exacerbation of the Appellant's initial injury were attributable to that injury in a causal sense, it following that the Appellant's on-going disabilities were causally related to the initial incident and that, by reason of that fact, the Respondent was liable to compensate the Appellant for those on-going disabilities - his Honour's conclusion in this respect has not been the subject of any challenge on the part of the Respondent.

Although, for the reasons which I have recorded, it is not necessary for the purpose of this Judgment to record in any detail the circumstances in which the Appellant suffered his injury, nor the detail of that injury and its sequelae, it is necessary to record, in a little detail, what happened in the course of the Appellant's employment by the Respondent in the 5 years, or thereabouts, which followed up to and including the trial before and delivery of Judgment of Wood J.

Despite having fallen in the manner which I have shortly described, the Appellant continued on his shift, albeit that, during the course of the evening he reported his injury to his foreman and, at the conclusion of his shift, he sought the assistance of the first aid attendant who applied some form of analgesic cream to the Appellant's lower back.

The Appellant then was rostered off for 4 days during which time he both applied an analgesic cream to his lower back and used what appears as if it must have been an infra-red ray lamp.

Thereafter, the Appellant returned to work, albeit that he continued to have pain in his back, which pain appeared to become more acute whenever, in the course of his duties he was required to bend or pull on, or lift, heavy articles. As the result of his pain continuing, the Appellant, in late December 1985, sought the assistance of his general medical practitioner, who appears from time to time thereafter to have prescribed analgesic and anti- inflammatory drugs and also suggested - a suggestion which, at some time, the Appellant took up - that the Appellant have physiotherapy. The evidence also indicates that, at some time, the Appellant's general medical practitioner referred him to an orthopaedic surgeon - the Appellant, however, appears never to have undergone surgery for his condition.

At some time which - save that it appears as if it were in the early part of 1986 - the Appellant was promoted to the position of "Winderman" which position, although it was primarily a supervisory one, still involved the Appellant in heavy labour. This being so, it is hardly surprising that the Appellant claimed that as time passed, the pain in his lower back increased.

URJ NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD (Powell JA) 7

It is perhaps appropriate, in the light of what was later to occur, to record, here, that, in the course of the trial before Wood J, the Respondent tendered evidence to the effect that, at about this time, the Appellant's then shift supervisor had occasion to reprimand the Appellant for "absenteeism". a reprimand which, when the Respondent's definition of "absenteeism" was explored, would seem difficult, if not impossible, to justify. I say this since the Respondent's definition of "absenteeism" including "absenteeism of any kind, sick leave, except annual leave or normal holidays, leisure leave". Sick leave, even though a doctor's certificate was provided, compassionate leave and the like, thus all were counted as absenteeism in the Respondent's lexicon. One should, perhaps, add, that, to the extent to which the evidence (Appeal Book 138) permits one to judge, in none of the years from and including 1985 to and including 1989, did the Appellant ever exhaust the sick leave to which he was entitled.

Although the evidence is less than clear, it would seem that, in about February 1988, the Appellant applied for, and was appointed to, a "Forty Hour Relief' position, a position which had a number of attractions for him as, in contrast to his then position, which was a three shift position, that of a "Forty Hour Relief" position was a two shift position and, in addition, allowed him week-ends and every second Friday off work. The disadvantage - no doubt because of the loss of some shift allowances and week-end penalty rates - seems to have been a reduction in the Appellant's pay but since, at this time, the Appellant had commenced to work, as well, as a bar attendant and, at times, as an entertainer, the probability is that there was little if any reduction in his nett earnings. In 1989, by which time he appears to have held the position of "Number 1 Forty Hour Relief' - which appears to have been regarded as the most desirable of the "Forty Hour Relief' positions - the Appellant had his position reclassified to that of "Relief Machine Tender'. That position, although, on the whole, less demanding physically,did, on occasion, involve the Appellant in quite heavy physical work.

On two occasions - one in May and the other in July - during 1989, the Appellant took sick leave because of the pain in his lower back. Although the first of these occasions involved only 1 day, while the second involved 2 days, each as it would seem was marked by a formal letter of reprimand directed to the Appellant. The second of those letters, dated 23rd August 1989, was in the following terms:

"Your poor attendance record is a cause for concern, as it is disruptive to the operation of the department and results in inconvenience to other employees.

When this matter was raised with you in March, 1986, you gave an undertaking to the Department Superintendent to improve your attendance. Unfortunately, this improvement has not been forthcoming. It was also believed that with your appointment to a five day - two shift occupation in February, 1988, your attendance problems would be overcome, but this has not been the case. It was necessary for department management to give you a verbal reprimand in May of this year.

You are advised that should any further absenteeism occur, for which a satisfactory explanation is not given, your services will be immediately terminated."

As Wood J was to observe in the course of his Judgment (Appeal Book 153), the Respondent appears to have adopted "a reasonably stem attitude toward the (Appellant))".

8 UNREPORTED JUDGMENTS

It seems clear enough that, during the course of the following year or thereabouts, the Appellant's condition deteriorated, albeit not to the extent that he was rendered incapable of any form of gainful employment - a CT scan undertaken in June 1990 revealed a deterioration at the L4/5 level and some degenerative changes in the facet joints between L4/5 and L5/S1.

Although the evidence is less than clear, it seems probable that, by late 1990, the Respondent had entered upon a programme involving significant re- organisation of its staff, perhaps as part of the process of "productivity bargaining" which became part of the industrial relations scene at about this time. It would also seem that, as part of this process of re-organisation of the Respondent's staff, the position of "Number | Forty Hour Relief' or''Relief Machine Tender" - which position as I have earlier indicated the Appellant then held - was to be abolished - that step appears ultimately to have been taken in about June 1991. However, although, when he was made aware of the proposals for change, the Appellant sought to be appointed to one of the remaining three positions of "Forty Hour Relief' he was not so appointed - the reason perhaps being union opposition to the down-grading of one of those who held the remaining three positions - but was, instead, given the choice of either returning to a three shift position as "Winderman'", accepting redundancy or resigning. Having no practical choice, the Appellant accepted downgrading to the position of "Winderman", which position he appears to have taken up at about the beginning of June 1991, and in which position he was employed at the time of the hearing before Wood J.

Before passing on, it is as well to record here that, in December 1990, a further letter of reprimand had been delivered to the Appellant, the occasion for that reprimand apparently being his leaving his work station because he was suffering from migraine at the time and had gone to a "fan room" to rest after having taken pain killers.

The position at the time of the trial before Wood J thus was that, as the result of the injury which he had suffered in 1985, the Appellant's capacity to carry out the tasks which he had earlier undertaken and, in particular, tasks involving heavy labour, was limited; that, whether with, or without, good cause, the Appellant had come under unfavourable notice by the Respondent and that his performance in the future was likely to be kept under careful scrutiny in the future; that it was at least possible that the position which the Appellant then held or any position to which he might later be appointed, might, in the future, become redundant; and, that it had already been made clear to the Appellant that unless, as part of any process of reorganisation, he were prepared to accept down-grading in his employment, his only available options were to resign or accept dismissal on the ground of redundancy.

It seems clear enough from the passage in Wood J's Judgment to which I will refer shortly that, in the course of his submissions, on behalf of the Appellant, in relation to "future impairment of earning capacity" counsel for the Appellant laid heavy stress upon the facts first, that the Appellant's continuation in the Respondent's employ even in the down-graded position which he then held, was far from certain; and, second, that, in the event of his loosing that employment, the Appellant would face significant disadvantages in seeking alternative employment in the open labour market.

When he came to deal with this part of the Appellant's claim, Wood J said (inter alia):

"(c) Future impairment of earning capacity

URJ NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD (Powell JA) 9

I am satisfied, on the evidence of Drs Kennedy, Brooder and Bodel that the plaintiff is only fit for work which does not require strenuous or repetitive bending, twisting or lifting or the maintenance of a static posture for lengthy periods, whether that be sitting or standing. This is a permanent incapacity which limits him in his present employment to any position below that of winderman. He would require assistance in lifting and would need the opportunity to change his position from sitting to standing and vice versa on a regular basis. I accept Mr Pol's description of the duties of a winderman as principally supervisory, and equivalent to that of back tender or machine tender. In that position, the plaintiff should be able to avoid heavy labour, although it may require him to exercise restraint when he might prefer to lead by example and pitch in with heavy work for the benefit of his crew.

The consequence is that he is disadvantaged in his present employment, because his range of work is limited, and he is obviously at a substantial disadvantage in the open labour market.

Although the defendant has kept him on so far there is no guarantee of that continuing, particularly since it seems to have been very ready to issue cautions or reprimands to him. I am not prepared, on the evidence as it stands, to positively find that he has been unfairly dealt with, so that the defendant is only waiting for the resolution of this case to dismiss him, or that hereafter it will look for any excuse, no matter how slim, to downgrade or terminate him.

I must accept the submission put on behalf of its counsel that the contrary is the situation, and that he will continue to be employed by it. However, if it turns out that such submission is not supported by the subsequent events, then it must be recorded that this Court will have been misled by the defendant in a way which could only be described as discreditable and entirely unacceptable.

It is on the basis that the defendant has no present plan to dismiss the plaintiff and has no intention to look for an excuse to downgrade or terminate him that I assess damages today. If it tums out that such submission is wrong then the damages awarded to the plaintiff will inevitably be substantially less than they should be.

I must still bring my commonsense to bear on this case, and take into account the reduced attractiveness of the plaintiff, as a worker, both to the defendant and to other employers. Additionally, I must take into account that because he is limited in the kinds of work he can do for the defendant he may be disadvantaged in the event of redundancies being forced upon that employer, by deteriorating or changing economic conditions.

Further, I must take into account the fact that he is disadvantaged in his capacity to follow other employment either in Albury or elsewhere. If he does lose his present employment then his chances of gaining work elsewhere are significantly reduced.

This, therefore, is a case where I must bring to bear the principles considered by the Full Court in Smith v Australian Iron and Steel (1977) WN 889 and by the Court of Appeal in Fenn v Jewel Stores Pty Ltd unreported 28 August 1989. The case must be assessed realistically in the light of the current labour market and the difficulties which disabled workers face in obtaining employment in competition with able-bodied employees of similar age and ability.

10 UNREPORTED JUDGMENTS

Being not satisfied, for the reasons previously mentioned, that the plaintiff is presently suffering a net loss in the sum of $38 per week suggested by the so-called table of comparables this case has to be approached on a buffer basis having regard to the factors previously mentioned.

The plaintiff is still a young man, being aged 42, and he has an expected working life of 23 years. I am not satisfied on the evidence before me that his working life would have been reduced by any congenital or degenerative lumbar condition, without the fall in 1985. Doing the best I can to assess a buffer for his reduced working capacity over the remaining expected working life, I assess this loss in the sum of $65.000."

In the result, his Honour found a verdict in favour of the Appellant in the sum of $125,265.00 being made up as follows:

Out of pocket expenses $1,965.00 Future impairment of earning capacity 65,000.00 General damages 55,000.00 Interest (at 2% per annum for 6 years) on past 3,300.00

general damages (one half of the total amount allowed for general damages)

and ordered the Respondent to pay the Appellant's costs of the proceedings.

The basis upon which, on the hearing of this Appeal, the Appellant's counsel sought to support the application for leave to tender fresh evidence was that that evidence would demonstrate that, when he came to assess the amount of damages appropriate to be awarded to the Appellant for "future impairment of earning capacity/', Wood J was misled by the submission, apparently put by counsel for the Respondent, that, far from it being the case that the Respondent was only waiting until Judgment had been delivered to dismiss the Appellant, or in any event, that the Respondent would in the future look for any excuse, no matter how slim, to down-grade or to dismiss him, the Appellant would continue to be employed by the Respondent.

As I understand the evidence which the Appellant has sought to tender and to rely upon, the following is, in summary form, the case which, in this respect, the Appellant seeks to establish:

1. that, in about February 1991, the Appellant was advised that his then position would become redundant, and that, when that occurred, he would be obliged to go back to his former position which position carried with it the obligation to carry out some, at least, heavy labour;

2. that the Appellant then told the Mill Superintendent that, if that were to occur he would have difficulty in coping with such heavy work and asked whether there was another position in the Respondent's employ to which he could be appointed, a query which met with the reply that there were no vacancies even on shift work;

3. that, in late March 1991, the Respondent had the Appellant medically examined with a view to obtaining a report as to the Appellant's suitability for the position of a three shift Winderman;

4. that it was at about this time when the Appellant was advised that the only options available to him were:

(a) to accept the transfer;

(b) to accept the transfer but, in the event of finding the new position unacceptable, then to accept voluntary redundancy; or

URJ NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD (Powell JA) 11

(c) to resign.

5. that, the report which the Respondent received following the Appellant's examination being inconclusive, the Respondent then arranged for the Appellant to be examined by an orthopaedic surgeon, that examination apparently taking place in mid-June 1991;

6. that the report, dated 27 June 1991, which was sent to the Respondent following that examination contained the following:

"OPINION - Mr Noonan told me he would be sacked if he presented a light duty certificate to his employers. He now finds himself in a 'Catch 22' situation of not wanting to lose his job and not wanting to risk damage to his lower back by the heavy lifting the shift work occasionally demands. He also resents the fact that he was the one chosen from the four relief operators to do shift work. He said he was the senior worker and considers that the single relief operators position (which remained after staff restructuring) should have been offered to him.

The current situation, as I see it, is that Mr Noonan has a degenerated L5/S1 disc, a minor bulge of the L4/5 disc, left lower limb sciatica and a minor sensory loss on the left foot indicating sciatic nerve root pressure.

In my opinion it would be unwise for Mr Noonan to occupy the position of Paper Mill Winderman three shift if this job requires him to participate in the heavy work necessitated by a clothing change.

Physically Mr Noonan is capable of doing all the other jobs required of a 'Three Shift One Man' but not the clothing change."

(the reference to the "clothing change" apparently being a reference to the changes of the felts - which are some 36 feet wide and about 100 feet long - which are placed on the relevant machine and upon which the newsprint which is being produced actually runs);

7. that, on a number of occasions following shortly after the delivery of Judgment, the Mill Superintendent asked the Appellant whether he would accept voluntary redundancy;

8. that, on the last such occasion, the Mill Superintendent informed the Appellant that, unless he accepted voluntary redundancy, he would be transferred to the position of "Shift Tester', a position that involved a further down grading, and a reduction in the Appellant's fortnightly pay;

9. that, shortly after the Appellant took up duties as a "Shift Tester",he heard that such a position would become redundant within a short period;

10. that, although, at that stage, the Respondent's officers appeared to deny that the position of "Shift Tester" would shortly become redundant, within a few days thereafter, there was circulated within the Mill a newsletter which indicated that the first stage redundancies had been completed, but that a second stage would follow, and that, accordingly, applications to take voluntary redundancy were invited;

11. that, in October 1991, the Appellant, together with the other four "Shift Testers", was advised that the transfer of the duties of "Shift Tester" to one of the production crew in the Paper Mill was then under consideration;

12. that, in January 1992, the Appellant was advised that the duties of "Shift Tester" would, in fact, be transferred to a member of the production team in the Paper Mill and was further advised that the options then available to him were:

(a) to apply for voluntary redundancy;

(b) to request a transfer to the Pulp and Services Department; and (c) to request a transfer to the Paper Mill Department;

12 UNREPORTED JUDGMENTS

13. that, although the Appellant applied, first, for a transfer to the Pulp and Services Department and, later, for a transfer to the Paper Mill Department, each of those requests was rejected, the ground, in each case, being said to be that, because of medical advice which the Respondent had received, the Appellant was regarded as incapable of carrying out the duties which would be required;

14. that, in May 1992. the Respondent advised the Appellant that, as it was unable, because of his disability, to provide him with suitable employment, his employment would be terminated, albeit that, despite the fact that he had rejected the option of voluntary redundancy, the Respondent would apply to him the provisions of the Redundancy and Relocation Agreement.

The balance of the material contained in the Affidavits which have been filed appears to be directed to explaining the delay which occurred in the 18 months, or thereabouts, which followed prior to the filing of the Notice of Motion seeking an extension of the time in which the Appellant might file a Notice of Appeal against the Judgment entered by Wood J. This being so, it seems to be unnecessary to record what were the various steps which the Appellant took in an endeavour, if he could, to secure his reinstatement in the Respondent's employ prior to his making the application for an extension of time within which to file his Notice of Appeal.

I turn, then, to the two questions which have arisen for decision on this Appeal:

1. FRESH EVIDENCE

That the Court may, in its discretion, admit further evidence on the hearing of an Appeal is undoubted. However, as the Court's discretion in this regard is a judicial, rather than an unfettered, one, it must be exercised in accordance with established principle. The approach to be adopted by an appellate court, when invited to exercise its discretion to admit further evidence, was discussed by Lord Wilberforce in Mulholland v Mitchell.1 In that case, His Lordship, after referring to the only three reported cases then known (Curwen v James?; Jenkins v Richard Thomas and Baldwins Ltd3 and Murphy v Stone-Wallwork (Charlton) Ltd continueds:-

"Tt is possible to extract from these cases some indications as to the way in which the Court of Appeal's discretion may be exercised. In Curwen v James appeal could be made to the argument that the court should not speculate where it knows, but my noble and learned friend, Lord Pearson, pointed that even so neat an axiom had its dangers. The fact that the marriage occurred so close to the trial was no doubt a factor. In Jenkins evidence was admitted as to the plaintiff's inaptitude for work thought suitable for him at the trial, but that decision was regarded as dubious in Murphy. In Murphy an assumption, held at the trial, that the plaintiff would not be dismissed was falsified by the defendant, and evidence as to that was admitted. Their Lordships' thought that not to do so would be inequitable.

These cases are useful as instances but they cannot be generalised into a formula. I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree (Murphy [1969] 1 WLR 1023, 1036). Negatively, fresh

1. [1971] AC 666 2. [1963] 1 WLR 748 3. [1966] | WLR 476 4. [1969] 1 WLR 1023 5. [1971] AC 679-680

URJ NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD (Powell JA) 13

evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice. All these are only nonexhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that court."

The approach so described by his Lordship has been referred to with approval in this Court in Radnedge v Government Insurance Office® and. more recently, in Doherty v Liverpool District Hospital"

Approaching this question in the way suggested, I have, after much consideration, concluded that, although the matter is very close to the border line, this is not a case in which the further evidence which the Appellant seeks to have the Court admit ought to be admitted. The passage from Wood J's Judgment, which I have set out above, in my view makes it clear, not merely that it was not assumed that the Appellant would continue to be employed by the Respondent indefinitely, but also that Wood J approached the task of assessing the amount to be allowed to the Appellant by way of damages in respect of his impaired capacity for employment upon the bases, first, that, although the Respondent did not then have the intention of terminating the Appellant's employ, the prospects for the Appellant's continued employ by the Respondent were, at least, subject to doubt; and, second, that, if the Appellant's employ by the Respondent were terminated, his prospects of obtaining employment on the open labour market were impaired. These two matters, as it seems to me, bring the present case within the reach of the first of the principles suggested by Lord Wilberforce in Mulholland v Mitchell rather than within the reach of the second of those principles.

2. INADEQUACY OF DAMAGES

Although the approach to be applied by an appellate court when a challenge is made to an award of damages upon the ground, either, that it is excessive, or, that it is inadequate, may have been differently expressed by differing judges, the general effect of those various statements is, in my view, the same, and might conveniently be found summarised in the following passage in the Judgment of Barwick CJ in Wilson v Peisley®:-

"The setting aside of an award of damages in a 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, in my opinion, be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is 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 although otherwise undisclosed. The less ponderable the elements of the damages under consideration, the less likely will there be a case

6. (1987) 9 NSWLR 235 7. (1991 22 NSWLR 264 8. (1975) 50 ALJR 207, at 209; 7 ALR 571, at 576

14 UNREPORTED JUDGMENTS

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."

The reason for such an approach is not difficult to discern: it is that as there is generally so much room for individual choice, that the assessment of damages is more like an exercise of discretion than an ordinary act of decision.

The passage from the Judgment of Wood J which I have set out above does not, in my view, suggest to me that his Honour, when approaching this aspect of his Judgment, acted upon some wrong principle of law, or misapprehended the facts or that for those, or any other unexpressed, reasons, made a wholly erroneous estimate of the amount to be awarded by way of damages for the Appellant's impaired capacity for employment. This being so, this challenge to his Honour's award must fail.

For these reasons, I conclude that the Appeal should be dismissed with costs.

Leave to tender fresh evidence refused; appeal dismissed. REPRESENTATION:

Counsel:

Appellant: GB Hall QC / JB Meadley

Respondent: C O'Connor QC / ADM Hewitt

Solicitors:

Appellant: Vaccaro's (Wodonga)

Respondent: Moray and Agnew