COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Higgins(2) and Heerey(3) JJ

CWDS
  Negligence - Quantum of damages - Loss of earning capacity - Appellant
injured at work - Substantial but not total incapacity for work found - Degree
of incapacity reflected in discounts made of past and future economic loss -
Degree of discount within discretion of trial Judge.

HRNG
CANBERRA, 1 April 1993
#DATE 2:7:1993
  Counsel for the appellant      :  Mr I. Curlewis QC
                                    with Mr C. Erskine
  Solicitor for the appellant    :  Australian Government
                                    Solicitor
  Counsel for the respondent     :  Mr R.J.B. St John QC
                                    with Ms P. Burton
  Solicitors for the respondent  :  Pamela Coward and Associates

ORDER
The Court orders that:
    1. The appeal be dismissed.
    2. The appellant pay the respondent's costs of and incidental
    to the appeal.
Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
NEAVES J   The Commonwealth of Australia ("the appellant") has appealed to
this Court from the judgment of the Supreme Court of the Australian Capital
Territory (Miles CJ) given on 4 December 1992 in an action in which Gary
Ronald Mortlock ("the respondent") sought damages for personal injury suffered
on 24 July 1988 by reason of the alleged negligence of the appellant, his
employer.  The Supreme Court found that the appellant was liable in damages to
the respondent and awarded the respondent the sum of $389,666.27.  The appeal
relates only to the amount of damages so awarded.
2.  The circumstances relevant to the assessment of damages are fully set out
in the judgment of the Supreme Court.  They are summarised in the judgment to
be delivered by Higgins J and need not here be re-stated.
3.  Although the arguments presented on behalf of the appellant in support of
its contention that the damages awarded are excessive have some attraction, a
detailed consideration of the material before the Supreme Court and of the
judgment under appeal leaves me unconvinced that there has been reviewable
error on the part of the trial judge or that the damages awarded are
excessive.
4.  In my opinion, the appeal should be dismissed with costs.

JUDGE2
HIGGINS J   This is an appeal against the quantum of damages awarded to the
respondent on 4 December 1992 by Miles CJ in the Supreme Court of the
Australian Capital Territory.
2.  Up to 28 July 1984, the respondent had suffered some episodes of back
injury.  It left him with a weakened lower back.  He experienced intermittent
lower back pain which was treated satisfactorily by chiropractic intervention.
3.  On 28 July 1984, the respondent, whilst assisting to lift a filing
cabinet, further injured his lower back.  His Honour, the Chief Justice, found
that, in the circumstances, the appellant, the respondent's employer, was
liable for the consequences of that injury.  There was no allegation of
contributory negligence.
4.  There is no appeal against the finding of liability.  The damages awarded
are challenged only insofar as damages were awarded for loss of earning
capacity.
5.  His Honour allowed $75,000.00 for past loss of earning capacity and
$250,000.00 for future loss of earning capacity.
6.  It is common ground that as at the date of the injury the respondent
suffered from a degenerative condition in his back.  His Honour found,
    "If he had not been injured on 28 July 1984, he
    stood to suffer some similar injury at some time
    thereafter.  When, where, and exactly how
    debilitating an injury he might have suffered,
    could not have been predicted nor can it be
    predicted now.  It is possible, but unlikely, that
    he would have continued throughout life without
    incapacity, or even without symptoms."
    As the respondent had already begun to suffer some symptoms,
    I would take the latter reference to mean "without further
    or increased symptoms".
7.  His Honour referred to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
8.  The respondent's date of birth was 15 December 1951.  He was educated to
third form.  He had up to the date of injury worked as a motor vehicle parts
salesman and in semi-skilled positions in the construction industry.  During
1971 he gained a temporary position with the appellant as a clerical
assistant.  He was made permanent in 1974.  His duties were, mainly, as a
courier and driver.  In 1984 he became a storeman and purchasing officer.
9.  The respondent had suffered a back injury in the course of his duties in
1972.  He improved sufficiently to return to his normal duties by March 1973.
However, it was recommended that he should be restricted to work not including
heavy lifting, a lot of climbing, excessive bending and excessive driving.
That restriction was, unfortunately, not communicated to the respondent.
10.  There was a subsequent injury to the respondent's left knee. He lost
about two months from work.  He later injured his right knee and lost a few
days.  Neither of those injuries seems to have created any lasting problem.
11.  Following a period off work after his injury on 28 July 1984, the
respondent resumed work on 20 August 1984.  He continued working as a courier
and driver until 26 August 1986.
12.  In March 1985, the respondent was seen by Dr Morris, an orthopaedic
surgeon.  The respondent's symptoms were then worsening.  That worsening was,
in Dr Morris' opinion due to the accident of 28 July 1984 and the injuries
then suffered.
13.  The respondent's back condition worsened significantly in November 1987.
He began to lose time from work.  In February 1988, Dr Newcombe operated to
excise the L5/S1 disc.
14.  He reached a "plateau" of improvement after a few months but has remained
static since then.
15.  The respondent has participated in rehabilitation programs during 1988
and 1989.  He returned to a specially structured job in January 1989.  His
Honour found that to be as follows,
    "He was permitted to stand or sit as he chose,
    sorting mail and using a chair and desk that were
    adjusted to suit him.  He was given a break from
    this work every forty minutes and a bed in a
    restroom was provided for him."
16.  Nevertheless, the respondent could not cope.  His Honour found that
notwithstanding this regime,
     "... his condition became so painful during the
    day that this time he contacted Dr Howse from
    Woden Valley Hospital and was given a cortisone
    injection in the spine whilst at work."
17.  The respondent, however, continued a variety of activities around his
home.  Film was shown which led his Honour to entertain "considerable doubt"
as to the respondent's descriptions of his continuing symptoms and incapacity.
18.  His Honour considered it "likely that there is a psychological element in
the case."
19.  Notwithstanding the doubts expressed, his Honour concluded, having
reviewed the medical evidence and having seen and heard the respondent, that
he had "substantial incapacity for full-time heavy work and suffers from
recurrent back and leg pain".
20.  The appellant contends that the finding that the respondent was
physically fit for light clerical work necessarily entailed that damages for
past and future economic loss should be assessed as if he had been and would
continue to be so employed.
21.  His Honour's view to the contrary depended on his assessment of the
respondent as a man.  He found that the respondent lacked the temperament for
clerical work and the motivation to engage in it.  The former characteristic
was part of his personality, the latter was one of the consequences of his
injury.
22.  Nevertheless, his Honour did not accept that the respondent should be
treated as if wholly incapacitated and proceeded to award damages for loss of
earning capacity on that basis.
23.  I cannot detect any error in that approach.  Insofar as it depends on his
Honour's assessment of the respondent's character and temperament, I do not
think this Court can do other than accept his Honour's view (see Abalos v
Australian Postal Commission (1990) 171 CLR 167).
24.  It is clear that his Honour found a substantial although not total
incapacity for work.  He considered it likely that the respondent would suffer
substantial periods of unemployment even if he became more motivated to seek
work for which he was physically capable.
25.  His Honour did not find, as the appellant asserted in its submissions,
"that the plaintiff was entitled to damages for loss of earning capacity for
the whole of the period from the date of injury until the hearing".
26.  The commencing figure accepted was the actual loss of earnings suffered
by the respondent.  That allowed no damages for the periods for which the
plaintiff was employed at his usual rate of remuneration.
27.  The actual figure was then discounted by a figure of 27.45%.  It seems to
me that discount recognises that, but for his lack of motivation for some
period of time before trial, the respondent might have had some earnings.
28.  The figure for the future was discounted by 37.5%.  Again, that discount
recognises a substantial but not total incapacity.
29.  Those findings seem to reflect, and are consistent with, his Honour's
factual findings.  The precise discounts were largely in his Honour's
discretion.  They seem to me to be within the range of that discretion.
30.  I would accordingly dismiss the appeal with costs.

JUDGE3
HEEREY J   I have read a draft of the reasons for judgment of Higgins J.  I
agree with those reasons and the orders which his Honour proposes.