JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION : BISHOP -v- INTERWEST INVESTMENTS PTY LTD [2001] WASCA 365
CORAM : WALLWORK J
HEARD : 18 SEPTEMBER 2001
DELIVERED : 23 NOVEMBER 2001
FILE NO/S : FUL 198 of 2000
BETWEEN : CAMERON LUKE BISHOP
Appellant (Plaintiff)
AND
INTERWEST INVESTMENTS PTY LTD
Respondent (Defendant)
Catchwords:
Torts - Damages for personal injury - Appeal from District Court - Back strain - Young manual worker - Future pecuniary loss below prescribed amount - Assessment upheld - Decision to dismiss action upheld
Legislation:
Workers' Compensation and Rehabilitation Act 1981, s 93D(2)(b)
Result:
Appeal dismissed
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Category: B
Representation:
Counsel:
Appellant (Plaintiff) : Mr K J Bradford
Respondent (Defendant) : Mr M H Zilko
Solicitors:
Appellant (Plaintiff) : Bradford & Co
Respondent (Defendant) : Jackson McDonald
Case(s) referred to in judgment(s):
Fox v Wood (1981) 148 CLR 438
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Barnes v Hay (1988) 12 NSWLR 337
Bresatz v Przibilla (1962) 108 CLR 541
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Devries v Australian National Railways Commission (1993) 177 CLR 472
Geldenhuys v Soo, unreported, FCt SCt WA, Library No. 990147, 23 March 1999
Jongen v CSR Ltd (1992) A Tort Rep 81-192
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Rosenberg v Percival (2001) 178 ALR 577
Stapley v Gypsum Mines Ltd [1953] AC 663
Thomas v O’Shea (1989) A Tort Rep 80-251
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1 WALLWORK J: I agree with the reasons for judgment of Anderson J. There is nothing I wish to add.
2 ANDERSON J: This is an appeal against an assessment of damages in the District Court. The claim arose out of an injury to the plaintiff suffered during the course of his employment. The trial Judge, Charters DCJ, found that the head of damage for future pecuniary loss did not exceed the "prescribed amount" under s 93D(2)(b) of the Workers' Compensation and Rehabilitation Act 1981 as the Act then stood. There is no dispute that that amount is $122,139 for the purposes of this case. The trial Judge determined that the appropriate award under this head was $50,000. He therefore dismissed the appellant's claim, as he was required to do by s 93D(1). In the main, the grounds of appeal seek to challenge the assessment of $50,000, although there is also a challenge to the provisional determination of the award for past economic loss.
3 At trial, both liability and damages were in issue. The appellant succeeded in proving that his injury was a consequence of a breach of duty on the part of the respondent (his employer) and there is no cross-appeal against that finding.
4 The injury was a back injury sustained while pulling steel hydraulic pipes out of a large earthmoving machine. The nature of the injury, as found by the trial Judge, was "a mild soft tissue injury to the lumbar spine". This finding is amply supported by the medical evidence and is not challenged in the appeal. There was a large volume of medical evidence and surveillance films and on a consideration of that evidence the trial Judge found that the appellant had "made a substantial recovery. There is now virtually no residual disability - perhaps 5 per cent loss of function as a whole". Nevertheless, the trial Judge found that "it would not be desirable that he return to the heavy type of work of plant mechanic trades assistant because he may have exacerbations of his condition. The plaintiff is, however, fit for many other forms of work such as truck driver, driver of a prime mover, courier driver, forklift driver or storeman". His Honour said that the appellant "did not deny" that he was fit for those types of work.
5 The appellant's case at trial was that his progress towards becoming a qualified plant mechanic was terminated by the injury he sustained in the accident. He claimed that he was on the way to completing his apprenticeship and ceased to apply himself in that endeavour mainly because he was advised by the medical and rehabilitation experts that he would never recover sufficiently from his injury to do the work of a plant
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mechanic. It was submitted on his behalf that his future pecuniary loss should therefore be assessed on the basis that he had been deprived by the respondent's negligence of the earning capacity of a plant mechanic. Against this, the respondent's case was that the appellant was not intellectually equipped to cope with the more advanced aspects of the apprentices' course and would not have succeeded in completing it. It was submitted on the respondent's behalf that on any realistic assessment of his vocational future in this calling (overhauling, servicing, repairing and maintaining heavy plant and machinery), the appellant would not have risen above the level of trades' assistant.
6 The appellant was 20 years of age when he was injured on 4 March 1997. He had left Forrestfield Senior High School in 1992 at the end of year 10 aged 16. It would not be unfair to say that he had not done well at school. His last school report contains teacher comments such as "not enough work submitted"; "he must be a little more settled in class"; "frequently disrupts other students"; "neglects the theory and written requirements of the course"; "easily distracted"; "lack of purpose and control"; "little prospect of improvement"; "needs to adopt a more positive attitude". His grades ranged from C down to F. His best achievement was in the subject of "mechanical workshop 5.2". In that subject he achieved a C grade with a teacher report that he "has displayed a good understanding of this subject". All subjects studied in the appellant's final year appear to have been rather basic.
7 According to the appellant's own evidence concerning his schooling, he "found it difficult to concentrate and keep an interest in the academic subjects". He said that he especially had difficulty with reading and writing. In the year after leaving Forrestfield Senior High School, he attended a college which offered courses with less academic and more practical content. This involved attending the Technical and Further Education institution ("TAFE") and it also involved practical work experience with various corporations, including the respondent. The appellant found this final year of his education more enjoyable and decided he wanted to become a plant mechanic. In late 1993, towards the end of his attendance at the college in question, he started applying for apprenticeships. After a number of unsuccessful applications, he was accepted into an apprenticeship by the respondent which commenced in early 1994.
8 According to the evidence of Mr Separovic, who was attached to the Southern Metropolitan College of TAFE as an advanced skill lecturer, apprentice plant mechanics are required to complete 288 hours of
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attendance at a TAFE college each year of the first three years of their apprenticeship. The apprenticeship is of four years. The annual attendance at TAFE is in two "blocks" of 144 hours over 18 days. The first block is between January and June and the second is between June and December. In each block, or semester, a total of four "modules" must be passed by the apprentice. Each module is divided into a number of "learning outcomes". In order to pass a module, each of the learning outcomes in the module must be met. Tests are administered progressively. If a learning outcome within a module is not met, the apprentice is not given a pass for that module, but, nevertheless, progresses to the next module. The apprentice must eventually meet all the learning outcomes and pass all the modules. Opportunities are given to apprentices to do this by taking "remediation" tests with respect to learning outcomes not previously met. These tests may be taken at any time. Tests are mostly theoretical, although some are practical, or have a practical content. It is expected that an apprentice will have met all learning outcomes and that he/she will have passed all modules by the end of the fourth year of apprenticeship.
9 The course involves a total of 24 full modules, that is, nominally eight modules per year over three years.
10 The appellant attended the course at TAFE in the three years 1994, 1995 and 1996. He had enrolled in 22 full modules and four half modules which satisfied the course requirements of the equivalent 24 full modules. On any view of his level of achievement, it must be described as poor. The TAFE records show that, at the end of 1994, the appellant had passed only three of the eight modules studied in that year. Of the five which were not passed (because learning outcomes had not been met), two were never passed. Of the other three modules, one was not passed until July 1995 and the other not until August 1995 - that is, in the second semester of the next year. In 1995, he failed to pass six modules and in 1996, he failed to pass eight modules. Therefore, at the end of the three-year course, 16 of the 26 modules in which he had enrolled had not been passed.
11 The appellant did not dispute this evidence. He acknowledged that as at the date of his accident in March 1997, he had only passed 10 of the 26 modules, leaving 16 modules remaining to be passed. Within these modules, there were a total of 77 learning outcomes. Of these learning outcomes, the appellant admitted that he had failed to complete 38, or nearly half, of them.
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12 It was not in dispute that no remediation attempts had been made by the appellant between August 1995 and the date of his accident in March 1997. In his evidence-in-chief, the appellant explained this by saying "I lost much motivation on the academic side due to my frustration with reading and writing difficulties".
13 The appellant said that, nevertheless, he had made up his mind to pass all remaining modules and that he intended to use the fourth year of his apprenticeship to do so, obtaining special coaching if necessary.
First ground of appeal
14 The trial Judge found that the appellant would not have succeeded in completing the apprenticeship course. By his first ground of appeal, the appellant complains that this finding was "not reasonably open".
15 The appellant's main argument is that the trial Judge overlooked evidence that since the date of the accident the appellant had met "most" of the 38 learning outcomes which had been outstanding as at the date of his accident. It was submitted on behalf of the appellant that this evidence ought to have been accepted and compelled a finding that there was a good chance that the appellant would have successfully completed his apprenticeship and become qualified as a plant mechanic; and that his future economic loss should have been assessed on that basis.
16 Before proceeding to consider the evidence with respect to the appellant's capacity to complete the apprenticeship course, it is convenient to deal with the submission that, in assessing damages for future economic loss, the trial Judge was required to take into account the chance that the appellant might have succeeded in qualifying as a plant mechanic, even if he was satisfied there was little prospect of that achievement being realised. This submission is based on Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. The particular passage relied on is in the judgment of Brennan and Dawson JJ at 639 - 640 and is in the following terms:
"By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are
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analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past. Lord Diplock said in Mallett v McMonagle [1970] AC 166 at page 176:
'The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.'"
17 What this means in the context of this particular case is that if there was a possibility that the appellant might have succeeded in completing his apprenticeship had he not been injured, an allowance should be made for the loss of that opportunity. It is reasonably clear that no allowance such as that was made by the trial Judge. But that does not mean that the trial Judge fell into error. If it was open to find, as his Honour did, that the appellant would not have succeeded in completing the study requirements of the apprenticeship course, no error was involved in making no allowance. If there was no prospect that, uninjured, he would have obtained formal qualifications as a plant mechanic, the loss of opportunity had no monetary value.
18 I believe that is how the judgment below is to be understood. The trial Judge did not make the mistake that was referred to in Malec. He did not base his refusal to make an allowance on a finding that there was less than an even chance that the appellant would have succeeded in acquiring the qualifications to work as a plant mechanic. His finding was that the appellant did not have the capacity to cope with the more complex theoretical requirements of the course, and would not have qualified as a plant mechanic through the apprenticeship system.
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19 As to this question (whether the appellant would have succeeded in completing his apprenticeship if he had not sustained the injury which he did sustain), there was some opinion evidence from the respondent's factory manager, Mr Thompson, supporting the appellant's case. However, the preponderance of evidence was the other way. I have referred to the appellant's own evidence to the effect that his poor rate of completion of learning outcomes and inattention to remediation of the uncompleted learning outcomes prior to the accident was due to loss of motivation - obviously unconnected with the accident. The TAFE records suggest that he had, in fact, practically given up trying to complete the apprentices' course. As I have said, as at the date of the accident in March 1997, he had passed only 10 of the 26 modules which he should have passed in that time and he had attempted no remediation of uncompleted learning outcomes since August 1995. His difficulties were not just a lack of direction or indolence or immaturity, although they may have played a part. His problems with reading and writing, which were reported on in his last year at high school, were obviously severe and obviously persisted. Furthermore, there was clear evidence that he suffered from a serious incapacity not just to read, but also to comprehend basic theory. For all the encouraging things which Mr Thompson was prepared to say of the appellant's prospects, he also had the following to say:
" … he could not read information from a manual or text and understand it [AB 241]."
" … he just couldn't handle the reading and written aspects of the training [AB 241]."
"Jim Separavic, from TAFE, was helping me by sending Bishop's exam papers to me. I would give the tests to Bishop and tell him to go and look up the answers and come back with them written down. In most cases he wasn't able to complete the exams.
I tried to give him oral tests, but that didn't work either. His problem was that he couldn't extract written information and record an answer in writing or orally [AB 242]."
"At some point I received a telephone call from Jim Separavic, who told me something.
As a result of Separovic's [sic] call I wrote to Bishop's parents informing them of the seriousness of the situation … After they received that letter they telephoned me.
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Even after this however, he didn't make any real progress [AB 242 - 243]."
"Based on my experiences with him over three and half years I don't think there is any way he could have qualified as a plant mechanic [AB 243]."
20 The above statements are taken from Mr Thompson's written statement tendered in evidence. The following appears in his cross-examination:
"You said he had tremendous difficulty?---Yes.
With what?---The hydraulics was one, electrical was another problem he had. He couldn't seem to get the answers right for them at all [AB 276]."
"Do you think that he eventually would have passed with some time and effort?---Well, I really can't say, I don't know; not from where I could see … he really was having a lot of difficulties of understanding some of the material … in the workshop where he had to satisfy me that he understood the operation of particular components, well, I don't think he had much really knowledge in it at all. I mean the transmissions was one that - I just daren't put him anywhere near a transmission. He just didn't understand them [AB 278]."
21 Cross-examined about the appellant's progress after the accident when it appears that Mr Thompson was continuing to encourage him to carry on with his apprenticeship and was continuing to test him, Mr Thompson agreed that the appellant was making progress. However, he also said:
"Well, what it was, we had a stack of these papers for him to go through. What we were doing, I think we were picking up the easiest ones first and we were leaving the ones that he was having - you know, the hard ones that he would have trouble with. I'd say that was why he did very well at the beginning, but once he got the easy ones out of the way or once we got onto hydraulics and electrical and these - it came to a screeching halt."
22 The appellant admitted that he had reading difficulties generally and that he had difficulties reading manuals and the like. He admitted that he
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had been unable to "pass" the "written parts" of his "apprenticeship training".
23 This is a case in which the advantages which a trial Judge has in seeing and hearing the plaintiff were very considerable. The trial Judge had the appellant under observation in the witness box for several hours. He would have been very much assisted by this on the issue as to the appellant's personal and intellectual attributes, or lack of them. For example, the trial Judge observed the appellant's attempts to read the oath. It is not disputed that the appellant was unable to do so. Under cross-examination, the appellant admitted that he had not been able to read the oath when the card was handed to him at the commencement of his evidence.
24 In my opinion, it was open to the trial Judge to find that the appellant did not have the capacity to, and that he would not have, completed the apprentices' course.
25 The first ground of appeal has not been made out.
Second ground of appeal
26 By the second ground of appeal, the appellant pleads that:
"The learned trial Judge erred in fact and in law in finding that, but for the accident, the Appellant (Plaintiff) would have worked only as a 'trades assistant' to a plant mechanic."
27 As I understood the argument put in support of this ground of appeal, it amounts to a contention that the trial Judge should have found that, even if the appellant failed to complete the apprenticeship course, he would have worked as a plant mechanic had he not been injured; that formal qualifications are not a prerequisite to engaging in this line of work. It was submitted that plant mechanics are not a "licensed" trade in the sense that a governmental licence is required in order to work at the trade. Hence, there was nothing to stop the appellant making a career for himself working as a plant mechanic, even without completing his apprenticeship.
28 There was indeed evidence that not all experienced plant mechanics have formal apprenticeship qualifications. Mr Thompson is a striking example. However, I think this ground of appeal misunderstands the judgment below. The finding, properly understood, was not merely that the appellant would not have passed the apprentices' exams, but that the appellant lacked the capacity to acquire the knowledge and skills required
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29 I would not uphold this ground of appeal.
Third ground of appeal
30 By the third ground of appeal, the appellant pleads that:
"Having correctly found that the extent of the Appellant's (Plaintiff's) injury prevented him from returning to 'plant mechanic trades assistant' work, the learned trial Judge erred in assessing the Appellant's (Plaintiff's) residual capacity for employment."
31 This ground is essentially to the effect that the findings as to residual working capacity were unduly favourable to the respondent in light of the whole of the evidence. The critical findings are at pars 68 and 69 of the judgment as follows:
"It would not be desirable that he return to the heavy type of work of plant mechanic trades assistant because he may have exacerbations of his condition.
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The plaintiff is, however, fit for many other forms of work such as truck driver, driver of a prime mover, courier driver, forklift driver or storeman. The plaintiff does not deny he is fit for these types of work."
32 In my opinion, these findings are amply justified by the evidence. If anything, they are unduly favourable to the appellant. The trial Judge would have been quite justified in finding that, although it may not be "desirable" that the appellant return to heavy mechanics, there was no reason related to his injury why he could not become a motor mechanic.
33 All of the specialists to whom the appellant was referred by his general practitioner diagnosed an initial "mild soft tissue injury". It is a feature of the case that a good deal of medical evidence in the form of opinions as to the extent of the appellant's incapacity had come into existence before the doctors concerned were shown surveillance films in the form of videos made of the appellant on various dates in 1998 and on 26 August 2000. One of these specialists was Dr Rosenthal who specialises in rehabilitation medicine. He saw the appellant in May 1997 at the request of the appellant's general practitioner and recommended a course of physiotherapy treatment which he thought was successful. At this stage, he was prepared to accept that there was a 5 per cent permanent loss of function of the lumbosacral spine. However, on being shown the surveillance film made in August 2000, he said that the "level of activity seen on the video film is inconsistent with his subjective complaints". His conclusion was that the appellant was "fit for his pre-accident occupation without constraint on time or function".
34 The appellant was referred by his general practitioner to Dr Gee, a specialist anaesthetist and consultant in pain management. Dr Gee did not consider there was much wrong with the appellant's back. He found no substantial evidence of muscle tenderness and observed the appellant to move and dress easily. He thought there was some localised pain in the lumbar region. This opinion was given before Dr Gee had seen any surveillance film. After seeing films made in 1998, Dr Gee's opinion was that the appellant was fit to return to "normal duties". In his written report dated 26 November 1998, Dr Gee gave the opinion that:
"These surveillance films demonstrate a fit young gentleman who has an excellent range of movement, who has the capacity to undertake a range of work-related activities, and who at no time demonstrates any pain behaviours."
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35 He amplified this in evidence at AB 359 as follows:
"I felt that on the basis of the video surveillance that I saw in late November of 1998 that he was able to undertake a very extensive range of duties that would have required all sorts of functions in his back and that I felt, based on that, he could return to whatever duties he was doing before his accident."
36 The appellant was seen by an orthopaedic surgeon, Mr Wright, in October 1998. He wrote a report in which he detailed the appellant's subjective complaints and concluded:
"Mr Bishop injured his back in the circumstances described. The investigations, including the MRI scan, have excluded any serious injury to the discs. In my opinion, he strained soft tissues in the lumbar region in the accident. Despite rest and treatment, he still has back symptoms which prevent him from heavy, physical work. It is unlikely that he will ever be fit to resume work as an apprentice heavy duty mechanic. It would be wise for him to consider the options for retraining for a suitable sedentary job which would not put as much stress and strain on his back."
37 Mr Wright gave evidence de bene esse, having been called to give evidence on behalf of the appellant. In his evidence-in-chief, he said (AB 194 - 195):
"I have little doubt that he is capable of light to medium work as a mechanic but heavy machinery does require more physical exertion and it is very doubtful that he will be able to go back to that type of work in the future."
38 He was then cross-examined and during cross-examination he was shown a surveillance film of the appellant taken on 30 July 1998 and a surveillance film taken on 19 October 1998, a few days after Mr Wright had seen the appellant. He was also shown the video taken in August 2000. Asked to express an opinion in light of the surveillance films as to the extent of the appellant's symptoms, Mr Wright conceded it was "certainly possible" that the appellant was now "symptom free". He thought he was capable of full-time light to medium work as a mechanic and could not exclude the possibility that he was now fit for heavy mechanical work.
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39 The appellant was also seen by the orthopaedic surgeon, Mr Brash, on two occasions, first on 12 February 1998 and again on 8 August 2000. Mr Brash obtained a subjective history of constant and widespread pain, but could not find "any objective evidence of pathology to account" for it. He thought there were many inconsistencies in the symptomatology from which he was led to believe "that there is very strong evidence that there are non-organic or functional factors present in the total pain picture. I thus, am of the opinion that this patient is fit for the full activities of daily living, including returning to this job as a plant operator". He did not recommend any further treatment, remarking of the appellant that "he seems very fit to me" (AB 509 - 510).
40 On the occasion of the second consultation on 8 August 2000, Mr Brash once again obtained a history of ongoing widespread symptoms of pain radiating down the back of both thighs and on the left side down to the left foot, together with neck pain made worse with twisting. Mr Brash could not reconcile what he described as "the patient's severe, constant and ongoing symptoms with the lack of underlying pathology". Once again, he noted inconsistencies in the symptomatology indicative of "non-organic or functional factors present in the total pain picture". He came to the firm conclusion that "this patient is completely fit for the full activities of daily living including going back to full-time work without restriction".
41 Mr Brash also gave evidence de bene esse and was shown the surveillance videos, or some of them. He concluded that they depicted a man with a "completely normal spine". He said (at AB 329):
"As I said two and a half years ago, this man is completely fit for the full activities of daily living, including his pre-accident occupation as a plant operator without restriction."
42 When it was put to him that the appellant's previous occupation was as a plant mechanic, rather than a plant operator, he said that that did not make a difference to his opinion.
43 Mr Brash was cross-examined at some length, but he was not persuaded to retract his opinion or to qualify it.
44 The appellant was seen by the neurosurgeon, Mr Wong, in September 1997. Mr Wong reported that on examination the appellant's lumbar spinal movement was full, with some minor tenderness at L5/S1 level. He found no neurological deficit. His conclusion was:
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"I think he is suffering from soft tissue injury. Treatment should be along conservative lines. It may be worthwhile for him to see (the physiotherapist) again. Certainly if in the longer term his symptoms continue then he may have to change the type of work that he is doing."
45 Mr Wong also gave evidence de bene esse. He said the appellant was referred to him by the appellant's general practitioner, Dr Tierney. It would appear that he saw the appellant once only. At that time, the appellant told Mr Wong that he was "doing part-time light duties working 4 hours a day" and Mr Wong confirmed in evidence that at that stage he thought the appellant was fit to do part-time light duties. In cross-examination, he said that in the absence of clinical signs, of which there were none, his diagnosis and assessment of the extent of the disability was entirely dependent on what the appellant told him. Mr Wong was shown the video films, and in the light of his interpretation of them, he concluded "there is no doubt he can do full-time light duties … I cannot say he's got severe back pain of any significance but I cannot categorically say that he has got no back pain whatsoever … but it can't be too bad" (AB 192).
46 There is then the following question and answer:
47 There was medical opinion running counter to these opinions. The appellant was seen by the orthopaedic surgeon, Mr Slinger on a number of occasions and Mr Slinger formed the opinion that the appellant had sustained a soft tissue injury which made him unfit for the duties of a motor mechanic. The surveillance films did not cause him to change that opinion.
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48 The appellant was seen by the neurological surgeon, Mr Watson, on a number of occasions, commencing not long after his accident. On 15 July 1998, Mr Watson reported on the appellant's symptoms which he thought were consistent with lower lumbar back strain. He did not believe that the appellant was fit to return to work as a mechanic because of the heavy nature of the work and the repetitive lumbar flexion involved. However, he was obviously puzzled that there appeared to be no improvement in the symptoms. He remarked at the end of his report "I would have expected that these symptoms would have begun to have improved by this time … it is my belief … that Mr Bishop should consider settling his claim sooner rather than later".
49 Mr Watson was asked to view videos taken of the appellant on 3 June 1998 and 30 July 1998. Mr Watson described what he saw on the videos as follows:
"The second and longer video demonstrates Mr Bishop arriving at my St John of God Hospital rooms and departing with a friend. He is seen to sit comfortably on the fence outside the hospital and video footage later in the same film shows him on 30 July 1998 talking on a mobile phone, bending over double at the waist to pick up objects off the ground and squatting several times with no apparent difficulty or discomfort. Then he was seen to climb to the top of a crane holding a tape measure, bending over to allow the height of the crane to be measured from the ground and climbing back down off the crane and jumping to the ground with no difficulty.
The other film dated 3 June 1998 of Mr Bishop showed Mr Bishop talking to another man, smoking and squatting with no discomfort for a prolonged period of time whilst smoking."
50 Of the activities depicted in these films, Mr Watson said:
"These activities were quite inconsistent to Mr Bishop's capabilities during my examination on 15 July 1998. The degree of lumbar flexion during my examination was only to the mid shin and that with difficulty. Straight leg raising was reduced to 50 degrees bilaterally.
In light of the videos I have seen I believe Mr Bishop is capable of driving a Prime Mover truck. I believe he is capable of working as a courier and I see no reason that he should not be able to work as a forklift driver.
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In all I believe Mr Bishop has the capacity for full time work which is clearly demonstrated on these videos."
51 Later, on 3 December 1998, Mr Watson wrote a report saying:
"I confirm that I do agree with Dr Gee and I believe Mr Bishop does have the capacity to return to work in his pre-accident duties on a full-time basis."
52 These reports were written to the workers' compensation insurer, QBE Insurance Ltd. It would appear that Mr Watson then received representations from the appellant's solicitors, Messrs Bradford & Co, and at their request again reviewed the appellant. In a report dated 30 March 2000, Mr Watson qualified his opinion expressed in the letters to the insurer. In the final paragraph of his letter to Bradford & Co he said:
"I believe that Mr Bishop is unlikely in view of his failed attempts at returning to work as a plant mechanic to become successfully employed in that area and therefore I would concede that Mr Bishop should be employed in areas involving lighter duties, however I see no reason that he could not be employed full time in occupations such as those outlined by Mr Slinger, eg light storeperson, forklift driver, driveway attendant etc. I give this opinion regarding Mr Bishop's fitness for work conceding him the benefit of the doubt regarding the severity of his ongoing symptoms and conceding that in view of these it would be cautious for him not to be involved in an occupation which required repetitive flexion of the lumbar spine or lifting greater than 15 to 20 kilograms. I also concede to your point that safety standards may not always be adhered in the work place particularly with regard to weights lifted."
53 On 4 September 2000, Mr Watson replied to a letter from the insurer's solicitors. In this letter, he confirmed that he did "have concerns of Mr Bishop's activities seen on the video tape" and confirmed that he had believed that "Mr Bishop has made a better recovery from his soft tissue lumbar spine injuries that occurred on 4 March 1997 than is necessarily evident at his presentation at rooms … ". However, he adhered to the qualification expressed in his letter to Bradford & Co based upon information that he had been given by Bradford & Co. What he said was (AB 545):
"I also have received information that a plant mechanic occupation may require lifting of heavy weights, repetitive
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carrying of heavy weights over short distances as enclosed in a fax from Bradford & Co. Whilst Mr Bishop has undoubtedly made a significant recovery, as a medical practitioner I have difficulty in recommending a man for heavy physical and manual work with a history of back injury and ongoing back pain without being cognisant that it is highly likely that he may suffer further back injuries and back pain.
Whilst Mr Bishop may certainly appear much improved on video tape footage and to all intense [sic] and purposes be again highly flexible and mobile, I suspect that if he attempts to return to work of a heavy physically demanding level, then this will result in further time off work, frustration for both Mr Bishop and his employer and my current recommendation would be as in my previous report - to recommend Mr Bishop for occupations that are of a more sedentary nature. I believe he could be immediately employed in a full time basis in occupations such as light storeperson, forklift driver, driveway attendant."
54 I would observe in passing that these statements are ambiguous. On behalf of the appellant, they were put forward as statements in support of the proposition that the appellant had been disabled by the accident from doing the work of a plant mechanic. To my mind, however, Mr Watson might be saying no more than that the appellant's history suggests that he may be predisposed to back injury and back pain and should therefore avoid occupations which are of high risk to such people. If that is what Mr Watson meant (he did not give evidence), the vocational limitation which he advocates for the appellant does not provide any cause of action against the respondent. An employer is not liable to pay damages to an employee simply because the employee finds out during the course of his employment that his natural physical limitations render him unfit for the work.
55 The appellant was extensively cross-examined on what work he could do and what was beyond him. He admitted that he never took his own car to a mechanic to be worked on. He did the work himself. He admitted that he had never had any trouble working on his own car and that he had worked on his friends' cars as well. He accepted that he was capable of light to medium work as a mechanic and agreed that motor car mechanical work was within what he meant by light to medium mechanical work (AB 96), with the qualification that he might not be able to lift a gearbox into a motor. He admitted that he had engaged in
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occupations in which he regularly lifted objects weighing up to 20 kilograms and could handle weights up to 30 kilograms. He admitted that a motor mechanic would not be called on to lift weights above 30 kilograms in his day-to-day work. He admitted that he had operated forklifts on many occasions since his accident, although, on some occasions, he had experienced some back pain. It was put to him:
"It's fair to say that really what you've got now is you get an odd twinge in your back, don't you?---Yes."
56 He admitted having worked in the stores section of the respondent after the accident and admitted that he had experienced no difficulties doing that work. Finally, he admitted that if it was not for the boredom involved in the work, he could be a forklift driver, a truck driver, a courier driver or a storeman. At AB 119 he admitted that all these jobs were well within his capacity. Although he "loved" what cross-examining counsel described to him as "mechanics and engines", his evidence was that he had not considered switching to the field of auto or motor mechanics because "cars don't interest me" (AB 94).
57 The trial Judge reviewed all of this evidence and, in my opinion, it was open to him to make the findings which he did; namely, that the plaintiff suffered a mild soft tissue injury to the lumbar spine from which he had made a substantial recovery, leaving him with virtually no residual disability; that whilst his history of back pain rendered it undesirable that he return to the heavy work of a plant mechanic he was suited to and fit for many other forms of work, such as truck driving, courier driving, forklift driving or storeman. The trial Judge might well also have found, as I have said, that the appellant was not prevented by his injury from pursuing a career as an auto mechanic, although he might occasionally have needed some help with the very heaviest aspects of that work such as fitting gearboxes.
Fourth ground of appeal
58 By ground 4, the appellant pleads:
"The learned trial Judge's assessment of $17,051 as being the appropriate award of damages to the Appellant (Plaintiff) for past economic loss was so inordinately low as to be a wholly erroneous estimate of damage and wrong in fact and law."
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59 This ground of appeal really depends upon making good the proposition that the trial Judge erred in finding that the appellant had regained his uninjured earning capacity from about the end of March 1998. Whilst I am not persuaded that the trial Judge erred in finding that the appellant regained his pre-accident earning capacity, the respondent conceded in the appeal that the evidence did not support the finding that this earning capacity was regained by 31 March 1998. The medical opinion to which the trial Judge referred was the opinion based upon interpretations of the surveillance film which had been taken on 30 July 1998. It was conceded that the finding should have been that the appellant's pre-accident earning capacity was not regained until then - 30 July 1998. I do not know where this leads, however. The injury was sustained on 4 March 1997 and the appellant went off work immediately (AB 50). There was evidence that his average weekly earnings were about $530 net after tax. Thereafter until trial there is a history of intermittent work, first with the respondent on light duties within the field of plant mechanics and later in other occupations with other employers.
60 There is evidence that in these various jobs the appellant did a range of work and earned a total of about $6,500 net after tax. The appellant claims that he ought to have been awarded damages for past loss of earnings (that is, loss of earnings between accident and trial), calculated by reference to an earning capacity of $530 net after tax per week until 1 January 1999 and thereafter $700 net after tax per week. It was the appellant's case that by 1 January 1999 he would have qualified as, and would have been employed as, a plant mechanic. The average weekly earnings contended for, that is, $530 per week, until 1 January 1999 and $700 per week thereafter until trial, multiplied by the number of weeks in question came to $114,050. The appellant conceded that from this sum the amounts actually earned should be deducted, ie, $6,500. The appellant also conceded that he would have to give the respondent credit for the amount of workers' compensation actually paid to him in the period in question. This was $34,444.26.
61 The appellant submitted that the amount which was to be credited to the respondent on account of workers' compensation payments made by the respondent ought to be discounted by what has become known as the "Fox v Wood component". This is a reference to the rule laid down in Fox v Wood (1981) 148 CLR 438, which is that because a plaintiff who is awarded damages must repay the gross amount of workers' compensation to the employer (insurer), but will have had the benefit of only the net after tax amount, the difference between the gross and the net should be awarded as additional damages.
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62 The trial Judge made no allowance for the Fox v Wood component. Counsel for the respondent conceded that an allowance should have been made. The amount in question is agreed to be $5,752.19.
63 I must say that this is a very untidy aspect of the case. It could perhaps be accepted that an adjustment should be made to the trial Judge's calculation in light of the concession made by counsel for the respondent that there should have been a Fox v Wood award, and the concession that the appellant did not regain his uninjured earning capacity until 30 July 1998. But what seems also to have gone wrong is that the trial Judge's calculation was based on a false premise which unduly favoured the appellant. Any adjustment would have to take this into account. The error is to be found in the following passage from the judgment. What the trial Judge said was:
"[78] From the time the plaintiff was fit for the work from March 1998 there has been no measurable loss of capacity to earn an income.
[79] I would have awarded the plaintiff to 31 March 1998, that is, 91.5 weeks, damages of $48,495 based on a net weekly income of $530."
64 There are not 91.5 weeks between 4 March 1997 and 31 March 1998, but only 55.8 weeks.
65 There is no need to go too deeply into the intricacies of the adjustments that would need to be made to the calculations arising from these errors and misconceptions. In order to succeed in the appeal, it is necessary for the appellant to persuade this Court that the award for future pecuniary loss should have exceeded the prescribed amount of $122,139. The appellant's case as to that depended primarily on persuading the court of trial that, if he had not been injured, he would have qualified as a plant mechanic. He failed to satisfy the court of that and, in my opinion, he has failed to demonstrate that the court of trial erred in that respect.
66 There is no other basis upon which it is contended there should be an award exceeding $122,000 for future pecuniary loss. The relatively minor degree of residual disability from which the appellant now suffers (defined by the trial Judge rather enigmatically as "perhaps 5 per cent loss of function as a whole") is not of itself evocative of substantial pecuniary loss. A plaintiff who fails to establish that the injury has resulted in a significant limitation on the vocational opportunities to which he is suited
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can hardly expect that he will receive a substantial award under the head of future pecuniary loss. That is the position in this case.
Fifth and sixth grounds of appeal
67 These grounds of appeal really amount to argumentation in support of the earlier grounds and there is no need to set them out or to deal separately with them.
68 For the above reasons, I would dismiss this appeal.
69 TEMPLEMAN J: I have read in draft the reasons published by Anderson J with which I am in complete agreement. There is nothing I wish to add.