Damien Charles Moore v the Canberra Dutch Club Incorporated [1991] ACTSC 71 (26 September 1991)

SUPREME COURT OF THE ACT

DAMIEN CHARLES MOORE v. THE CANBERRA DUTCH CLUB INCORPORATED
S.C. No. 1570 of 1987
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - contributory negligence - apprentice chef slips on wet floor of cool room - no new principle.

Damages - measure of damages - personal injuries - apprentice chef injured back at work - unable to continue career as chef - intention to retrain as journalist - assessment of damages - no new issue of principle.

Damages - measure of damages - extent to which decision of appellate court establishes level of award for general damages.

Cirjak v. Beggs (unreported, Full Court of the Federal Court of Australia, 20 June 1991)

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Luntz, Assessment of Damages 3rd ed.

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
26:9:1991

Counsel for the plaintiff: Mr Maguire, QC with Mr Lunney

Solicitors for the plaintiff: Minter Ellison

Counsel for the defendant: Mr Deakin

Solicitors for the defendant: Hunt and Hunt

ORDER

There be judgment for the plaintiff in the sum of $283,342.35.

DECISION

The plaintiff, who was born on 9 May 1962, was injured on Friday, 5 July 1985 whilst working for the defendant as an apprentice chef. His injury occurred when he slipped on the wet floor of a coolroom. Liability in negligence is admitted, but the defendant contends that the plaintiff was guilty of contributory negligence. The plaintiff conceded that he was aware that there was water on the floor, as that tended to happen during the course of a shift when people were coming and going from the coolroom and the refrigerative unit sprayed water. He was reaching to get something from a high shelf when his feet slipped from underneath him. He landed heavily on his buttocks. He was wearing boots with a proper sole which he himself had purchased. They were in good condition. The defendant was unable to suggest what alternative step the plaintiff should have taken to minimise the risk of injury to himself except that he should have gripped one of the lower shelves whilst reaching up, or tautologically, that he should have taken greater care for his own safety. I do not see that there was anything unreasonable about what the plaintiff did. The defendant bears the onus and has not discharged it. There will be no apportionment for contributory negligence.

2. The injury gave rise to a disc rupture at the L5/S1 level. The plaintiff worked out the shift with pain in his lower back radiating down the right calf. He worked the following night in similar pain and went to Woden Valley Hospital after the shift. He was told to take a bath and rest, which he did. On the Tuesday the plaintiff saw his general practitioner, Dr Cleary, who referred him for physiotherapy. He remained off work and underwent physiotherapy from about 11 July to 22 July. He returned to work but when he did not improve after a week Dr Cleary put him off work again and referred him to Dr Alastair Robson, a specialist neurosurgeon, on 2 September 1985. He returned to work about three weeks later and went off again on 10 October. A myelogram on 25 October 1985 suggested but did not conclusively show the source of the trouble at L5-S1. The plaintiff continued off work. He never returned to work with the defendant and his apprenticeship was formally terminated on 20 December 1985. Arrangements were made for surgery, and the day before the surgery a discogram further tended to suggest the lesion. During an operation on 29 July 1986 the ruptured disc was excised and bone grafts from the right iliac crest were used to fuse the L5-S1 vertebrae. The plaintiff was in hospital for about 10 days.

3. Initially there was some improvement and the plaintiff resumed work on 4 November 1986 with a restaurant called Ribs. He worked there as a chef on a split shift. He left the position at Ribs on 25 February 1987 finding that the work with its bending and lifting had become harder for him. He was off work till 21 June 1987 when he became the cold larder chef at a restaurant at Manuka with more restricted hours than at Ribs. He left that position some time in early 1988 for reasons similar to leaving Ribs. He found a position then part-time, three or four days a week, at Olims Hotel where he worked in special catering projects. He finished up there on 16 May 1989 because he was finding that he was unable to recover between shifts which were sometimes "back to back". By that stage he was undergoing rehabilitation. After a month or so away from work he found a position in another restaurant at Belconnen where he worked for three months. At the end of October 1989 he left that position to work temporarily for his father in a newsagency. That involved standing for long periods behind the counter and shifting bundles of newspapers and magazines and he found that work also too heavy. In March 1990 he found a part-time job at the Manuka Brasserie and then with the Barnardo organization, cooking for a small group of children for one to two hours a day, five days a week. Again, however, the activity of the children and the need to do the shopping for the foodstuffs caused him considerable difficulty. In the end and from about February or March 1991 he has not worked at all. He has decided that he will enrol in a journalism course at the University of Canberra and has been told that he will probably be accepted for the semester beginning early in 1992.

4. Evidence from members of the plaintiff's family support his own evidence about his enthusiasm to take up a career as a chef and of the debilitating effect the injury has had upon him. That is also supported by the evidence of Mr Peter Richardson, who is a qualified chef and was the proprietor of the catering business in which the plaintiff first commenced his apprenticeship. Mr Richardson is presently the Director of Supply, Joint House Department, and has had considerable experience in the catering industry in Canberra.

5. The plaintiff married when he was 20 years of age. He and his wife separated in 1989. Their children are now aged about 8 years and 5 years. The plaintiff sees them frequently, but he is unable to engage in boisterous games or the like. He had been an active sportsman before his marriage, and was apparently continuing to play an active part in local basketball at least up until the season before his injury. I accept his wife's evidence that after the injury he became irritable, impatient and has lost considerable weight. That was also confirmed by Dr Cleary in his evidence.

6. The plaintiff's continuing complaints following the operation relate to pain which extends down the calf of the right leg into the foot, pain in the area of the donor graft and, to a lesser extent, continuing pain in the lower back upon prolonged standing and sitting.

7. The defendant relies upon the reluctance of Dr Robson to give any prognosis as to the plaintiff's present capacity for work. Dr Robson was the operating surgeon and as far as he is concerned, the operation was a total surgical success. He calls the plaintiff "the young man with a successfully fused back". Dr Robson's apparent scepticism as to the plaintiff's capacity or incapacity for work may be understandable because he was not engaged by the plaintiff to deliver judgment on such matters. I think that it may also be significant that the plaintiff found Dr Robson a little difficult to talk to. Furthermore, it does seem that there is a psychological component in the plaintiff's condition and that to some extent he is reluctant to accept his disability. Unusually for persons in his condition, he has made repeated efforts to resume the sort of activities he would but for injury, have carried out in the employment, domestic and sporting areas. Whilst living with friends in a rural setting, he has tried to carry out his share of the chores by doing such things as chopping the firewood, but has found it is beyond him.

8. The plaintiff attended a rehabilitation clinic and pain management counselling from February 1989 to February the following year. He returned in June 1990 following an increase in his symptoMs He described the pain in July 1990 to Dr Corry as tolerable but constant. Dr Cairns, who saw the plaintiff on behalf of the defendant, found that he was mentally and emotionally drained from an ongoing "moderate disability". I think that Dr Cairns somewhat underestimates the severity. Dr Cleary has continued to see the plaintiff once every month or two until the present time and has directed his attention closely to the particular problems of the plaintiff and has been disappointed by his failure to progress. Dr Cleary's lack of specialist qualifications does not reduce the impact of his evidence. He thinks that the problem in the donor area of the right iliac crest is a condition of chronic infection and is likely to continue. The pain which extends down the calf of the right leg is associated with nerve damage in the lumbar area which was caused either in the original fall or, as is more likely, in the operative or post-operative process. The condition in the lower back is a post-operative condition. Dr Cleary is also of the view that the wasting of calf muscle which he has observed is probably due to the nerve damage just referred to. Dr Cleary fears further problems in the hips and lower spine. He is reluctant to prescribe analgesics for such a young man.

9. In the light of the above, I do not place any great importance upon the fact that on 20 June 1990 the plaintiff told Dr Robson that his back was "pretty good". Dr Robson's evidence that he could not find much that was of significance, should be seen as confined to the clinical findings. Dr Robson as much as conceded that if the plaintiff's complaints are to be taken as genuine then some disability must be seen to follow. Dr Robson's view that the plaintiff's case ought to be finalized as soon as possible commands respect, but this is not the sort of case in which I think that the litigation looms as a substantial factor. The fact that the plaintiff has foregone his driving licence and may not have it renewed until declared fit by the Commonwealth Medical Officer is significant.

10. There is little question in my mind that the plaintiff is not fit to carry out the full range of duties which would be required of somebody working as a cook or a chef in a commercial kitchen. He had set his heart upon a career as a chef and, according to the persuasive evidence of Mr Richardson, he showed great promise and initiative in the field. The field is now closed to him. It is true that he might from time to time take part-time work in the kitchen of a restaurant or hotel, but that is not to be compared with pursuing a career as a chef, except to the extent that it shows that he has not totally lost his capacity to earn income.

11. Nevertheless, receiving his injury at the age of 23 years, in his third year of a four-year apprenticeship, when he was displaying outstanding promise, has deprived the plaintiff of substantial loss of enjoyment of life. He had the prospect of pursuing a successful career as a chef, with the opportunity not only to earn high income, but to gain considerable personal satisfaction and pleasure from the lifestyle, particularly if and when he moved into the managerial level, with opportunities for overseas travel and the like. His level of pain and suffering has been high and is not likely to subside. Nevertheless, because he had not yet reached his full potential in his career, it is impossible to say with certainty that he was cut down in the prime of life. The contingency has to be recognized that he might not have reached the heights predicted by Mr Richardson. Not all qualified cooks become executive chefs in international hotels and resorts.

12. In trying to assess a proper sum by way of general damages, I find it impossible to ignore the decision of the Full Court of the Federal Court of Australia in Cirjak v. Beggs (unreported, 20 June 1991). It is not often very appropriate to refer to other decisions for the level of awards of damages involving a discretionary element, but it seems to me that in that decision the Federal Court, sitting as a court of appeal from this Court to correct errors of law, set something of a benchmark. Mr Cirjak had suffered a whiplash injury and had been the subject of unsuccessful spinal surgery, much like the present plaintiff. I saw Mr Cirjak and I saw the plaintiff. There are two features which distinguish Mr Cirjak's case from the present. The first is that Mr Cirjak was 61 years at the time of the hearing. The second is that he was unable to take a positive attitude to his situation and felt sorry for himself, and his wife spent time attending to his needs and to household activities that he would otherwise have carried out. The present plaintiff, on the other hand, is a young man, who has made repeated attempts to carry out pre-injury tasks. He has not been successful. He appears prematurely aged and walks with a limp and assisted by a walking-stick. Yet he continues to attempt to make a future for himself in another field which will require years of study and training.

13. Stoicism and a positive attitude to one's disabilities, however, do not attract damages, but rather the reverse. As far as domestic help is concerned, the plaintiff does not have a spouse to chop the wood, mow the lawn and attend to the other tasks to which Mrs. Cirjak attended. There is no evidence that Mr Moore's flatmates attend to tasks to which he does not attend so that fairness should demand that the plaintiff be compensated for the value of the services which they perform. I do not think that the plaintiff is entitled to a Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 component in his award, but the fact that he has to attend to his own domestic tasks is something that should be taken into account in general damages.

14. As far as pain and suffering is concerned, the plaintiff has, according to the Australian life tables published in Luntz, Assessment of Damages 3rd ed at p 556, more than 43 years of life ahead of him. This is much more than twice what lay ahead of Mr Cirjak. I do not take anything in the judgment of the Federal Court to contradict the proposition that a sum for pain and suffering and loss of enjoyment of life in the case of an elderly man must be substantially lower than that awarded to a young man, other things being equal. That proposition does not contradict another principle which has been laid down in the authorities, namely that in the case of a young child, the court should be restrained in its award for damages because of the uncertainty that lies ahead. Mr Moore is not a young child and his damages are not to be reduced on that account. Bearing in mind then that the Federal Court awarded Mr Cirjak the sum of $40,000 by way of general damages, it seems to me that the present plaintiff is entitled to at least twice that amount, exclusive of any Griffiths v. Kerkemeyer component. I therefore propose to award $80,000 for pain and suffering and loss of enjoyment of life, although without the assistance of the judgment in Cirjak's case I would have awarded a lesser sum.

15. For loss of past earning capacity, it is agreed that the plaintiff's actual net earnings since his accident total $32,930.69. It is also agreed that if he had continued his apprenticeship until it was due to finish on 9 September 1986, he would have earned just on $11,500 net. Thereafter $400 per week net is claimed for the period 10 September 1986 to 9 March 1988, and from then on $600 per week net as a first chef. Insofar as these figures based on the earnings for a chef are not supported by any evidence and insofar as the plaintiff has been capable of earning some modest amount at least from time to time since he last worked, I would discount the figures for past earning capacity as claimed. I assess the plaintiff's earning capacity since the injury (as distinct from actual earnings) at $40,000 net, and his estimated net earnings but for injury at approximately $90,000. This results in an award for past earning capacity of $50,000. For the purpose of interest I note that the plaintiff has received worker's compensation weekly benefits totalling $12,871.06, and he will be awarded interest accordingly. Interest on past loss of earning capacity is therefore $20,659.46.

16. For future loss of earning capacity I estimate that the plaintiff's estimated earning capacity but for injury until about 1995 would have been $500 per week, and that he has a continuing capacity to earn income of $100 per week. I would therefore award him $400 per week for the next four years, which will take him to the end of the journalism course he proposes to embark upon. This has to be discounted at the usual 3 percent rate. It gives a figure of $80,704. Thereafter, I am not positively convinced that there would be any significant difference between the earnings of a competent journalist and a competent chef, but I must take into account that the enthusiastic picture painted by Mr Richardson of the plaintiff pursuing a career as a chef is not matched by any countervailing evidence predicting a successful career in journalism. Furthermore, there is the possibility that his disability will affect his earning capacity even in journalism, in that he will not have the mobility to move around to the extent that must be necessary for many forms of news gatherings, and he is not able to spend long periods on his feet. Nevertheless, it seems to me that if the plaintiff finds a niche in journalism which is desk oriented, but not desk bound, it should suit his capacity. On the other hand, it must be borne in mind that he may not be able to pursue employment in that particular position continuously and there may be periods when he is incapacitated. All that can be done, I think, is to fix a fairly moderate figure as a hedge or buffer against the possibility that the plaintiff's career in journalism will turn out to be less remunerative than that as a chef. That possibility is to be set against the probability that he would have done better financially as a chef. I put the figure of $20,000 as the value of that hedge or buffer.

17. There are medical and hospital expenses agreed as far as the arithmetic is concerned at $11,922.05. In my view, it is reasonable to award the whole of that sum to the plaintiff. There is no evidence that any of the particular amounts are unreasonably claimed or are unreasonably high. There is a small Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component of $375 to be included in the award.

18. There is a claim for future medical expenses of $6.15 per week and rehabilitation service expenses of $80 per month. I do not intend to award the whole of these claiMs Dr Cleary is of the view that the medication ought to be reduced and if possible eliminated. The rehabilitation expenses cannot be expected to continue for the rest of the plaintiff's life. I would award $2,500 to cover future expenses.

19. It is agreed that the plaintiff will incur a total of $7,218.00 as the expenses of retraining in journalism or professional writing and I will allow this figure.

20. For the purpose of interest on general damages for pain and suffering and loss of enjoyment of life, I would apportion one half to the past and one half to the future. Interest on this component at 4 percent per annum amounts to $9,963.84.

21. In summary the award of damages and interest is as follows:
Pain and suffering and loss of

enjoyment of life $ 80,000.00
Past loss of earning capacity $ 50,000.00
Future loss of earning capacity $100,704.00
Future medical expenses $ 2,500.00
Out-of-pocket expenses $ 11,922.05
Fox v. Wood $ 375.00
Interest $ 30,623.30
Retraining expenses $ 7,218.00
Total: $283,342.35

22. As a matter of global review, this appears to me to be a somewhat high figure to compensate the plaintiff for his injury and its aftermath. However, I note that more than $30,000 relates to interest and I do not see how the figures for the various components might be reduced with propriety. I take into account the danger of overlapping. There will be judgment for the plaintiff accordingly and, unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs.