Re Commonwealth of Australia v Catherine Dorothy Lee Act G39 of 1990 Fed [1991] FCA 16 (6 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: COMMONWEALTH OF AUSTRALIA
And: CATHERINE DOROTHY LEE
ACT G39 of 1990
FED No. 273
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - causation - defendant's liability for additional damage flowing from exacerbating event - requirement that damage be suffered by reason of original injury or extent of additional damage greater by reason of original injury

Damages - appeal on quantum of damages - no new statement of priciple

Fishlock v Plummer (1950) SASR 176, 181

Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190

Minchin v Public Curator of Queensland (1965) ALR 91

Wilson v Peisley (1976) 50 ALJR 207

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Frost v Hodges [1984] FCA 98; (1984) 53 ALR 373

HEARING

CANBERRA
6:2:1991

Counsel for the appellant: Mr I. Curlewis, QC with Mr R. Crowe

Solicitor for the appellant: Australian Government Solicitor

Counsel for the respondent: Mr J.C. Hartigan

Solicitor for the respondent: Messrs Gallens Crowley Chamberlain

ORDER

The appeal be dismissed with costs.

By consent, the cross-appeal is allowed with costs and the judgment appealed from varied to $581,850.56.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

I have had an opportunity to read the reasons for decision prepared by my brother Higgins J. and agree with them.

2. On the issue of causation, the finding of the learned trial Judge that the event which occurred on 19 July 1979 was a cause of the medical condition which Mrs Lee suffered thereafter was fully justified by the evidence of Dr Raymond L.G. Newcombe and by the history of Mrs Lee's condition. The aggravation to Mrs Lee's condition which subsequently occurred was reasonably foreseeable and was not due to a novus actus interveniens. As du Parcq L.J. said in Rothwell v Caverswall Stone Co Ltd (1944) 171 LT 289 at 298 in a passage cited by Williams J. in Lindeman Ltd v Colvin [1946] HCA 35; (1946) 74 CLR 313 at 325-6:-
"First, an existing capacity `results from' the original injury if

it follows, and is caused by, that injury, and may properly be
held so to result even if some supervening cause has aggravated
the effects of the original injury and prolonged the period of
incapacity. If, however, the existing incapacity ought fairly to
be attributed to a new cause, which has intervened, and ought no
longer to be attributed to the original injury, it may properly be
held to result from the new cause and not from the original
injury, even though but for the original injury there would have
been no incapacity."

3. Similarly, in Mahony v J. Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, Gibbs C.J., Mason, Wilson, Brennan and Dawson JJ. said at 528:-

"A line marking the boundary of the damage for which a tortfeasor
is liable in negligence may be drawn either because the relevant
injury is not reasonably foreseeable or because the chain of
causation is broken by a novus actus interveniens: M'Kew v
Holland and Hannen and Cubitts [1969] UKHL 9; 1970 SC (H.L.) 20, at p 25. But it
must be possible to draw such a line clearly before a liability
for damage that would not have occurred but for the wrongful act
or omission of a tortfeasor and that is reasonably foreseeable by
him is treated as the result of a second tortfeasor's negligence
alone: see Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, at
pp 124-125. Whether such a line can and should be drawn is very
much a matter of fact and degree."

4. In the present case, the incident of 19 July 1979 which initiated Mrs Lee's medical problems which occurred on 12 October 1979 was not a novus actus interveniens and was the type of event which was a reasonably foreseeable consequence of the injury suffered on 19 July 1979. In the view of Dr Newcombe, it was more probable than not that Mrs Lee's ongoing problems were the result of the incident in July 1979. In accordance with this evidence, which the trial Judge accepted and was entitled to accept, his Honour found causation to be established. I see no error in his Honour's conclusion.

5. Another trial Judge may have taken a different view as to damages. Mrs Lee's symptoms were largely psychological, which is not to deny their importance. The judgment under appeal depended therefore upon the perception held by the trial Judge of Mrs Lee and of her disability. The trial Judge saw Mrs Lee in the witness box and no doubt observed her in the courtroom over the many days of the trial. The trial Judge heard the differing evidence of several medical practitioners. In a circumstance such as this, the advantage which the trial Judge has over a judge on appeal is overwhelming. It would not be proper to attempt to reconsider the matter on the papers.

6. I accept the findings made by the trial Judge and the assumptions on which he proceeded. On these findings and assumptions, no error is shown. I agree with the orders which Higgins J. proposes.

I have had the advantage of reading in draft the separate reasons for judgment prepared by Davies J. and Higgins J. I agree that for the reasons which they have expressed the appeal must be dismissed and the cross-appeal allowed to the extent indicated by Higgins J. I would only add that the assumptions drawn by the learned trial judge which have been criticized by Counsel for the appellant were open to his Honour on the evidence. Some of those assumptions, for example, as to the future promotional prospects of Mrs Lee and her consequential increases in real earnings could have been negatived by appropriate evidence at first instance tending to show that it was improbable that she would have achieved promotion to a Level 4 sister. However, in the absence of evidence of that kind, I do not consider that this Court can impute any error to the learned trial judge.

This is an appeal from a judgment given by Kelly J in the ACT Supreme Court on 29 June 1990. The evidence, which had been heard on 16-20 May 1988 and 17 May 1989, disclosed that the plaintiff/respondent had been injured at work on 19 July 1979. She was then a nurse and had been lifting, with the aid of another nurse, a difficult patient who "collapsed" throwing both of them off-balance and injuring their backs.

2. His Honour was satisfied, and there was no challenge to his finding, that the defendant/appellant had been negligent in failing to provide mechanical assistance and/or male wardsmen to lift such a patient.

3. The appeal, initially, was against quantum only. However, at the hearing the defendant sought and was granted leave to add new grounds of appeal. These grounds were:-

"2. His Honour was in error in that the damages awarded to the
plaintiff were excessive in that:-
(a) In his assessment of damages his Honour failed to find
that the plaintiff's back condition was substantially
or in part caused by the incident on 12 October 1979.
(b) His Honour's finding that the damage suffered by the
Plaintiff was entirely due to the injury on 19 July
1979 was against the evidence and the weight of the
evidence."

4. These grounds sought to rely on one proposition, i.e. that an incident which occurred on 12 October 1979, and was referred to as the "Nurse Herbert" incident, had caused or contributed to the damage of which the plaintiff complained and that damages should be substantially reduced accordingly.

5. The "Nurse Herbert" incident is described at p 7 of his Honour's judgment as follows:-

"Then, on 12 October 1979, she (the plaintiff) was sitting at her
desk when a colleague (Nurse Herbert) seated nearby collapsed.
Automatically she reached out to prevent the colleague from
falling to the floor and suffered immediate severe pain which
persisted. She reported the incident on the night duty statement
and in the back injury book. She did not return and has not
returned to work for the defendant."

6. This accurately reflects the evidence, though it should be added, to clarify the situation, that the plaintiff did not reach the colleague in time to prevent the latter from falling. She did not, therefore, take Nurse Herbert's weight.

7. At the trial, it was submitted that the incident of 19 July 1979 was "insignificant" and that later complaints were "exaggerated". Insofar as they were not exaggerated, it was submitted that they related to "a gardening incident and the incident of 12 October 1979 and to advancing degeneration of the spine". (Judgment p 19.)

8. As to that submission, his Honour found as follows:- (p 19 supra)

"Effectually, it was being submitted that any sequelae of the
incident of 12 October 1979 and the gardening incident could not
be causally attributed to the initiating incident of 19 July
1979. I do not accept that submission."

9. The reasons advanced by his Honour are based on Fishlock v Plummer (1950) SASR 176, 181 per Mayo J. The passage cited by his Honour affirms two propositions concerning causation:-

(i) An exacerbating event, not independently compensable, giving
rise to additional damage will not be compensable if it is
an event occurring by reason of the negligence or
unreasonable behaviour of the plaintiff;
(ii) An exacerbating event, not independently compensable, giving
rise to additional damage will be compensable if the event
or the exacerbation occurred by reason of the original
injury (e.g. broken and then unstable leg leading to a
fall) or to the damage sustained as a result of the event
being greater because of the original injury (e.g. a
weakened disc suffering a prolapse).

10. Of course, it was not relevant in that case but if the subsequent event causes independent damage that is effectively a new injury, the causal link with the original injury is absent. There may, of course, be events which both exacerbate an original injury and cause a new one.

11. Mr Curlewis QC, for the defendant, did not rely on the so-called "gardening incident" of 23 September 1979 as causing the damage or a substantial part of it. This incident is described, accurately, by his Honour at p 20 of his judgment. The plaintiff had simply been doing some weeding. Given the fact that there was nothing about this activity which would make the result of it a "new" injury as opposed to an exacerbation of a pre-existing injury by conduct neither negligent nor unreasonable, that concession was a proper one to make.

12. The submission concerning the incident of 12 October 1979 seemed to suggest that, in order for the consequences of it to be causally related to the incident of 19 July 1979, it needed to be shown that such incident was caused by the original injury. If this was the submission, it is incorrect. It is sufficient that the incident of 19 July 1979 created a weakness which was triggered by the incident of 12 October 1979 so as to exacerbate the plaintiff's then pre-existing condition, an exacerbation that would probably not have happened but for the incident of 19 July 1979.

13. His Honour in fact found (see p 23) that the incident of 12 October 1979 did exacerbate the pre-existing condition caused on 19 July 1979. The medical evidence reviewed by his Honour (pp 23-30 judgment) warranted that conclusion.

14. For example, Dr Newcombe's evidence (p 197 Appeal Book) supports the conclusion that the initial strain on 19 July 1979 created a condition where further exacerbations could cause damage which otherwise would not occur. The important fact warranting that conclusion was a continuity of back pain between 19 July 1979 and 12 October 1979. That was present as contemporary medical notes indicated.

15. Accordingly, his Honour's conclusion was not only open to him but viewing the medical evidence in toto, entirely justified.

16. It follows that the grounds of appeal referred to above must be rejected.
Damages

17. A number of other submissions were directed towards reduction of damages. The question of quantum and allowances for vicissitudes is, of course, a discretionary matter. Appellate courts are reluctant to interfere in such cases. (See Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190 - beyond the limits of what a sound discretionary judgment could reasonably adopt; Minchin v Public Curator of Queensland (1965) ALR 91 - no interference merely because of largeness or smallness of award, requires unsoundness; Wilson v Peisley (1976) 50 ALJR 207 no interference where trial not irregular or unfair, no demonstrated error of fact or unreasonable award demonstrating error in itself).

18. Insofar as a finding of fact forms the basis for a discretionary judgment, the question as to whether that finding of fact is erroneous or not may be determined by reference to the principles set out in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. If the factual basis for a discretionary judgment is wrong, an appellate court, if that error is capable of correction without a retrial, would have the option of substituting its discretionary judgment for that of the trial judge.

19. I/we set out the suggested errors in the following paragraphs.
Exaggeration

20. It was contended that the plaintiff was exaggerating the extent of her disabilities. Whilst it may have been open to his Honour to find conscious exaggeration, that suggestion did not find favour with any of the various medical practitioners called. Indeed, it would not have been a reasonable finding having regard to the psychiatric evidence of Dr Knox and Dr Merrifield.

21. The real thrust of the argument is not that the evidence required a conclusion of conscious exaggeration. It was that, because the psychogenic element of the plaintiff's disability is not organic, it may well resolve, giving the plaintiff greater work capacity than found.

22. There was no doubt that the psychiatric condition found by his Honour to be present was caused by the original injury as exacerbated. Dr Knox was of the opinion, and his Honour accepted that opinion, that -

"the prognosis is very poor in this lady's case".

Dr Merrifield concluded -

"Her psychoneurotic problems are ones which would not be amenable
to any treatment."

23. His Honour was, therefore, fully justified in concluding that the fact that there was a psychogenic component of the plaintiff's disability would not result in an improvement over time of her capacity to engage in paid employment. Nevertheless, his Honour did accept that her capacity was better than that which she presented or believed.

24. The residual capacity accepted by his Honour was half a normal week at a lesser rate of pay than she would have received as a nurse. A precise calculation of this capacity was not, of course, possible. The fact that there was "exaggeration" does not in my opinion warrant any reduction in the damages awarded.
Past loss of earning capacity

25. It was contended that his Honour overestimated this factor. On the assumption of continuing promotion as indicated on p 4 of the actuarial report, the net loss to 1 May 1988 would have been $166,179.00. As at the date of judgment it would have exceeded $220,000.00. His Honour awarded $144,000.00. This is about two-thirds of a total loss of capacity. It includes the continuing promotion prospects up to "level 4" or a salary level equivalent thereto.

26. There was a lack of evidence as to the real likelihood of the salary increases postulated in the actuarial report. Nevertheless, a contingency factor exceeding about one-third does not seem so unfavourable to the defendant as to be erroneous in principle. There was no reason for his Honour to disregard promotional prospects in arriving at a pre-discount figure for past wage loss.
Future Loss of Earning Capacity

27. As to future loss, his Honour assessed that loss before allowance for vicissitudes at $247,000.00. That total was based on the assumption that the plaintiff's total earning capacity had been reduced to about one-third, without the Amway earnings being considered.

28. Assuming the loss to be $350.00 net per week at trial, a pre-discount figure would be about $275,000.00 to age 60. That assumption, in itself, contains many factors unfavourable to the plaintiff. There was a chance she might work to 65, earning a similar wage ($320,000.00 approx.).

29. That weekly figure is much less than the plaintiff would have earned if uninjured, assuming the actuarial scenario involving promotion to level 4. Even disregarding the promotion to level 4, but allowing for likely increments since May 1988, a loss or diminution of $350.00 per week is not an unreasonable assumption. It follows that the figure his Honour allowed before discounting it further by 15% is, I think, not so unfavourable to the defendant as to be erroneous. To then allow "the conventional discount" may be thought to be unduly favourable to the defendant, particularly when the likelihood of extra earnings such as from sale of Amway products was not added in to the total loss of earnings figure for the future.

30. It follows that the award of $210,000.00 under this head is not excessive.
Griffiths v Kerkemeyer

31. Twelve and a half hours per week was claimed. There was evidence to justify that estimate. Frost v Hodges [1984] FCA 98; (1984) 53 ALR 373 was referred to as requiring the estimate to be discounted to take account of a mere rearrangement of domestic duties.

32. His Honour discounted the figures to four hours per week. This was an estimate but could not be said to be erroneous or excessive.
Interest on Past Wage Loss

33. Some of the past wage loss was not suffered because compensation payments were to be credited against the total of the past wage loss. His Honour was not told, it seems, what the compensation payments were. This Court was informed that $51,188.00 was so paid. No doubt it was possible to glean this from the tax returns tendered for the plaintiff but, in substance, it was conceded his Honour was not given this figure nor was it reasonable to expect him to undertake the exercise of discerning it.

34. The question then is whether the figure of $50,000.00 for interest on the past wage loss is excessive in the light of the new factor adverted to. The net figure foregone by the plaintiff since at least October 1979 to the date of judgment (29 June 1990) was $92,812.00. Even relative to this figure the sum of $50,000.00 does not seem excessive. At an average annual rate of 14% on progressive payments evenly made, a figure of $61,000.00 would be justifiable. No doubt, this figure can be reduced to allow for the weighting of payments towards the end of the period because of progressive increments in the level of comparable earnings relative to compensation payments. It does not, however, render the figure allowed for interest excessive.

35. It follows that this ground of appeal is also rejected.
Other grounds

36. At the hearing, none of the other grounds referred to in the original Notice of Appeal as criticisms of the award of damages were relied on.

37. It follows from the above that this appeal should be dismissed with costs.
Cross-Appeal

38. There was a cross-appeal by consent to enable an arithmetic error in the sum for which judgment was entered to be corrected. Accordingly, that appeal is allowed, with costs, and the judgment appealed from varied to $581,850.56.