Ghunaim v Bart [2004] NSWCA 28 (24 February 2004)

Last Updated: 27 February 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Ghunaim v Bart [2004] NSWCA 28

FILE NUMBER(S):

41024/02

HEARING DATE(S): 30 October 2003

JUDGMENT DATE: 24/02/2004

PARTIES:

Ali Ghunaim (Appellant)

Wilhelm Bart (Respondent)

JUDGMENT OF: Giles JA Ipp JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1275/01

LOWER COURT JUDICIAL OFFICER: Rein SC DCJ

COUNSEL:

C Branson QC/P S Jones (Appellant)

G Watson SC/M H Best (Respondent)

SOLICITORS:

Colin Daley Quinn - (Appellant)

Sparke Helmore - (Respondent)

CATCHWORDS:

CONTRIBUTORY NEGLIGENCE - whether worker guilty of contributory negligence in relation to workplace injury - principles governing contributory negligence by employees - nature of an appeal against a finding of contributory negligence - DAMAGES - nature of an appeal against award for non-economic loss - assessment of loss of earning capacity - whether actuarial evidence is required to prove a claim for loss of superannuation benefits. - D

LEGISLATION CITED:

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9, s 10(1)

Supreme Court Act 1970 (NSW), s 75A(5)

Workers Compensation Act 1987 (NSW), s 151N(3), s 151N(4)

DECISION:

1. Appeal allowed. 2. Judgment below set aside. 3. In lieu thereof, verdict and judgment for the appellant in the amount of $308,862.03. 4. Parties to have liberty to apply on two days notice in respect of the calculation of the verdict and judgment, such liberty to be exercised no later than 14 days after the date of this judgment. 5. Respondent to pay the appellant's costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41024/02

DC 1275/01

GILES JA

IPP JA

McCOLL JA

Tuesday, 24 February 2004

Ali GHUNAIM v Wilhelm BART

FACTS

The appellant commenced employment with the respondent on 30 April 1998, primarily as a welder. His work required him to use a "cold saw" - a saw whose blade was kept cool during operation by a spray of a mixture of oil and water. There was a guard on the saw but it was insufficient to guard the bottom half of the saw when the saw was lifted up from a cutting operation. While using the saw on 12 May 1998 the appellant's right arm came into contact with the saw blade resulting in serious injuries to his upper arm.

The appellant brought an action for damages founded on the respondent's alleged negligence and breach of statutory duty. The respondent admitted liability for the accident by reason of the absence of a full guard over the saw but said that the appellant was guilty of contributory negligence on the basis that he had not followed proper instructions or kept a proper lookout.

Rein SC DCJ found for the appellant but held that he was guilty of contributory negligence to the extent of 15%. His Honour entered a verdict in the amount of $262,533.21.

This appeal concerned a challenge to both the trial judge's finding of contributory negligence and his assessment of particular components of damages.

HELD per McColl JA (Giles JA and Ipp JA agreeing):

The appeal on contributory negligence:

1. Ground of appeal allowed.

2. The trial judge erred in concluding the appellant had been guilty of contributory negligence.

3. The question whether a person has been guilty of contributory negligence is a question of fact: Bourke v Butterfield and Lewis Ltd [1926] HCA 38, (1927) 38 CLR 354 at 360, McLean v Tedman [1984] HCA 60, (1984) 155 CLR 306 at 315, Liftronic Pty Limited v Unver [2001] HCA 24, (2001) 75 ALJR 867 at 885 [90] per Kirby J and Joslyn v Berryman [2003] HCA 34, (2003) 77 ALJR 1233 at 1251 [100] per Kirby J referred to.

4. A finding of contributory negligence may be reviewed on appeal. While an appeal court must pay appropriate deference to the advantages the trial judge enjoyed in deciding whether or not a person was guilty of contributory negligence, it must not shirk its statutory obligation to conduct a rehearing and, where error is found, must substitute its own conclusion on the issue: s 75A(5) Supreme Court Act 1970 (NSW); Fox v Percy [2003] HCA 22, (2003) 77 ALJR 989 at 993-994, esp. at [27], [29] per Gleeson CJ, Gummow and Kirby JJ; Callinan J at 1015-1017 [145] - [148]; Warren v Coombes [1979] HCA 9, (1979) 142 CLR 531 at 552 per Gibbs A.C.J., Jacobs and Murphy JJ referred to; Liftronic Pty Limited v Unver [2001] HCA 24, (2001) 75 ALJR 867 distinguished.

5. In considering an allegation that an employee was guilty of contributory negligence, it is relevant to take into account whether the employee was acting contrary to the system of work established by the employer or acting inadvertently in a manner not inconsistent with the standard of care of a reasonable employee: Davies v Adelaide Chemical & Fertiliser Company Limited [1946] HCA 47, (1946) 74 CLR 541 at 551, 552 per Dixon J; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 176; John Summers & Sons Ltd v Frost [1955] AC 740 at 777; Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24 by Kitto, Menzies and Owen JJ; Commissioner for Railways v Halley (1978) 20 ALR 409 at 415, 420; Commissioner for Railways v Ruprecht [1979[ HCA 37[1979] HCA 37; , (1979) 142 CLR 563; Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34, (1985) 59 ALJR 492 referred to.

6. The respondent bore the burden of proving, on the balance of probabilities, that the appellant had been guilty of contributory negligence: Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 at 216; Commissioner for Railways v Halley (1978) 20 ALR 409 at 419; Joslyn v Berryman [2003] HCA 34, (2003) 77 ALJR 1233 at 1237 [18] referred to.

7. The respondent failed to discharge its burden of demonstrating that the appellant's conduct demonstrated a departure from the standard of care of the reasonable worker rather than an occasion of momentary inadvertence which was "excusable because not incompatible with the conduct of a prudent and reasonable man": McLean v Tedman [1984] HCA 60, (1984) 155 CLR 306; Twynam Pastoral Co Pty Ltd v Bennett [2002] NSWCA 319 applied; Bourke v Butterfield and Lewis Ltd [1926] HCA 38, (1927) 38 CLR 354; Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24; Commissioner for Railways v Ruprecht [1979] HCA 37, (1979) 142 CLR 563; Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34, (1985) 59 ALJR 492 referred to.

The appeal on the assessment of damages:

8. Grounds of appeal relating to assessment of damages rejected.

9. The trial judge's award for non-economic loss was within an appropriate discretionary range for damages: Moran v McMahon (1983) 3 NSWLR 700; Jones v Bradley [2003] NSWCA 81; Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports ¶81-695 at [15]- [17] referred to.

10. The appellant's complaint that the trial judge had failed to deal with evidence that the appellant would require future operations was doomed to failure when (a) the appellant had not claimed damages under this head and (b) there was no evidence of the cost of any such operations.

11. The trial judge did not err in his assessment of loss of earning capacity: Wade & Ors v Allsopp & Anor (1976) 50 ALJR 643 at 647, 10 ALR 353 at 361 referred to.

12. The trial judge was not in error in refusing to permit the appellant to tender a further actuarial report one month after judgment had been delivered.

13. The extent to which a plaintiff must go to prove a claim for loss of superannuation benefits turns on the facts of each case. Not every case will require actuarial evidence: NSW Ministerial Corporation v Wynn [1994] Aust Torts Reports ¶81-303; Donovan v Port Macquarie Base Hospital [1999] NSWSC 1274; Ryan v State Rail Authority of New South Wales [1999] NSWSC 1236; Thomson v Mybner Pty Ltd [2000] NSWSC 766; Welsh v Cotton Seed Distributors [2000] NSWSC 861; Jongen v CSR Ltd (1992) Aust Torts Reports ¶81-192; Dews v National Coal Board [1988] AC 1; Mitchell Erectors Pty Ltd v Hinnen [2002] WASCA 169; Villasevil v Pickering (2001) 24 WAR 167; Zappara v Jones (WASC, unreported, 22 May 1997, BC9702411); Love v Clarona Pty Ltd (WASC, unreported, 24 January 1997, BC9700040); Hedge v Trenery (QCA, unreported, 7 November 1997, BC9706085); Mott v Boggan [1988] QSC 265 at [48] and [49]; Re Baker v Hanlon, Evans & United Dairy Foods [1999] QSC 142 at [23]; Kelly v Fletcher (WASC, unreported, 22 October 1997, BC9705411); Heather v Vita Pacific Ltd (1996) 6 Tas R 52 at 65; Grimsey v Southern Regional Health Board [1997] TASSC 103; (1997) 7 Tas R 67 at 116; Roads and Traffic Authority v Cremona (2001) 35 MVR 190, [2001] NSWCA 338 at [90] referred to.

ORDERS

1. Appeal allowed.

2. Judgment below set aside.

3. In lieu thereof, verdict and judgment for the appellant in the amount of $308,862.03.

4. Parties to have liberty to apply on two days notice in respect of the calculation of the verdict and judgment, such liberty to be exercised no later than 14 days after the date of this judgment.

5. Respondent to pay the appellant's costs of the appeal.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41024/02

DC 1275/01

GILES JA

IPP JA

McCOLL JA

Tuesday, 24 February 2004

Ali GHUNAIM v Wilhelm BART

Judgment

1 GILES JA: I have had the advantage of reading the reasons of McColl JA in draft. With the following additional remarks, I respectfully agree with them and with the orders her Honour proposes.

2 On the issue of contributory negligence, at the root of the accident was the fact that the saw was not turned off after the appellant had made the first cut and while he was positioning the rod for the second cut. Had it already been turned off, it would not have been necessary for the appellant to reach around the saw blade in order to turn the saw off when he encountered difficulty in positioning the rod for the second cut, an exercise constrained by the need to hold the rod. There was evidence from the respondent that he told the appellant that he had to turn the saw off after a cut before repositioning what was being cut, and it seems commonsense. For some reason, however, the respondent's case on contributory negligence did not rely on this, but was a case of negligence in reaching around an obviously dangerous rotating blade. It is on that basis that I agree with McColl JA's conclusion on her consideration of contributory negligence.

3 IPP JA: I agree with McColl JA.

4 McCOLL JA: This is an appeal from a judgment given in the District Court on 12 September 2002 in the appellant's action for damages founded on the respondent's alleged negligence and breach of statutory duty.

5 The appellant commenced employment with the respondent on 30 April 1998 primarily as a welder. His work also required him to use a "cold saw" - a saw whose blade was kept cool during operation by a spray of a mixture of oil and water. There was a guard on the saw however it was insufficient to guard the bottom half of the saw when the saw was lifted up from a cutting operation. While using the saw on 12 May 1998 the appellant's right arm came into contact with the saw blade resulting in a transverse laceration completely dividing the flexor muscles as well as the brachial artery, radial nerve and musculocutaneous nerve of his upper arm. After the accident the respondent fitted a fuller guard over the saw.

6 The respondent admitted liability for the accident by reason of the absence of a full guard over the saw, but said that the appellant was guilty of contributory negligence. The respondent asserted the appellant had not followed instructions in relation to using the saw and, further, had not kept a proper lookout.

7 The appellant recovered a verdict in the amount of $262,533.21.

8 The appellant complains about two aspects of the judgment. First, he challenges the finding that he was guilty of contributory negligence and the consequent reduction of his damages by virtue of s 151N(3) of the Workers Compensation Act 1987 (NSW) as amended.

9 His second complaint is that individual components of the damages award were inadequate. Insofar as he complains about the trial judge's assessment of his loss of superannuation benefits he complains that the trial judge was in error in failing to accept the tender of a Furzer Crestani Report of 9 October 2002 calculating his loss of superannuation benefits.

Statement of the Case

10 The cold saw the appellant was operating when he was injured consisted of two units, the saw unit and the base unit. A cutting support unit was installed in front of the cold saw to facilitate the cutting process.

11 The saw unit consisted of a body, a blade, a fixed guard and a handle. It had two speeds: low and high. The body was made of cast steel. The standard setting of the saw was 90 degrees perpendicular to the base unit. It could also be rotated up to 55 degrees to the right.

12 The saw and its motor were mounted on a pivot at the rear of the saw housing. The saw was pulled down manually onto the work piece using the handle on the saw unit. A red on-off switch was positioned within a yellow housing on the right hand side of the saw unit.

13 The piece of metal to be cut was fed into the saw from the left. It was placed on the saw bed and, if necessary, clamped into position using a vice on the base unit. In order to make a cut the piece of metal was marked and inserted in the saw with an allowance being made for the width of the saw itself. The metal had to be positioned exactly where the cut was to be made.

14 The blade of the cold saw was 300 mm in diameter. The blade was fitted with a partial guard at the time of the accident which left at least 300 mm of the circumference of the saw exposed at the top edge of the cutting guide.

15 On the day of the accident the appellant was required to use the cold saw at a 45 degree angle to cut a square metal rod. It was the first time he had had to do a 45 degree cut on that particular saw. The respondent knew that. He gave evidence that he asked the appellant whether he was able to set up the cold saw to perform a 45 degree mitre cut and was told the appellant could not. The respondent then demonstrated the set up of the machine to perform such a cut to the appellant.

16 When the blade was at a 45 degree angle the exposed section was angled more towards the body of the operator. According to the respondent it was even more important when carrying out a 45 degree cut to stand on the right hand side of the saw because the saw was turning towards the operator. The respondent said that he explained this matter to the appellant.

17 The piece of metal the appellant was cutting on 12 May 1998 was about 3 metres long. Having made the first cut, the appellant had to measure and mark the position where the second cut was to be made. He marked the rod with chalk.

18 He put the rod into the unit with his left hand and held it in place. It appears he formed the view that he could not be sure he had it lined up with his chalk mark, for reasons which appear to have been connected with the fact that the machine was dripping water and oil. He went to turn off the saw. The actual incident is best described in his own words:

"... I was holding the piece in place and as I went to turn off the saw, it was on 45 degree the switch would go further away from you, because it is like you set it up on a 45 degree so I had to go around it to turn it off and that's when it caught my jumper (Black 14M) ... the jumper got caught on the tip of the blade and it started to have a good grip on it and I tried to rip, like rip it off and I couldn't and ... I didn't feel the saw going through my arm ... I saw a lot of blood ... but I couldn't believe what was happening and there was all like too fast, too shocking ...

Q. It happened very quickly, no doubt?

A. Yes."

19 The appellant gave evidence that he always stood on the right hand side of the machine and that he was standing in that position at the time of the accident. He acknowledged that the saw was a very dangerous piece of equipment. He recognised that the fact that the saw was unguarded made it even more dangerous. He acknowledged that he had to be careful when using the saw and that he could not look away when he was operating it.

The Trial Judge's Decision on Contributory Negligence

20 There was a dispute at the trial as to whether the respondent had instructed the appellant to stand on the right hand side of the cold saw where the on-off switch was located. His Honour did not find it necessary to resolve that dispute as he concluded that the appellant was either told, or knew, that he should stand to the right of the switch.

21 The trial judge found that if the appellant had been standing on the right hand side of the machine he would have been able to turn off the machine with his right hand without leaning across the saw. He inferred that the accident happened either because the appellant was on the left hand side of the saw immediately prior to the accident or he was leaning across the moving saw without paying attention or both.

22 The trial judge appears to have concluded he did not have to make an explicit finding about where the appellant was standing when he was injured because, wherever he was, the appellant must have leant across the spinning blade without adverting to the proximity of his clothing/arm to the unguarded blade.

23 Counsel for the appellant submitted before the trial judge that the fact that the saw was unguarded effectively removed the prospect of any finding of contributory negligence. He relied upon the following passage in the majority judgment in McLean v Tedman & Anor [1984] HCA 60, (1984) 155 CLR 306 at 315 - 316:

"... It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account and the issue of contributory negligence is essentially a question of fact.

As Windeyer J observed in Sungravure, when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to `inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions.' It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, `excusable in the circumstances because not incompatible with the conduct of a prudent or reasonable man'."

24 The trial judge did not regard that passage as deciding that the fact that there was an unsafe system of work because the saw was not fully guarded meant there could be no finding of contributory negligence. He concluded that "if a person leans across a spinning blade ... he is required to pay attention, wherever is standing, to ensure that he, (and his clothing) does not come into contact with it." He did not regard the work in which the appellant was involved as being of a repetitive character.

25 The trial judge concluded that the appellant had not had due regard for his own safety because he did not pay sufficient attention to the existence of the blade when he leant across it. He assessed the level of the appellant's contributory negligence at 15%.

The Appellant's Submissions on Contributory Negligence

26 The appellant submitted that the trial judge had erred in finding he was guilty of contributory negligence. He also submitted the trial judge had erred in the following respects:

(a) In holding that the appellant was on the left hand side of the saw where he should not have been standing contrary to his practice or was leaning across the moving saw without paying attention or both;

(b) In concluding that if a person leans across a spinning blade he was required to pay attention wherever he was standing to ensure that he and his clothing do not come into contact with it.

(c) In failing to pay regard to the fact that, with the blade at an angle to make a cut, it was necessary for the plaintiff to put his arm in close proximity to the unguarded blade to turn off the machine.

(d) In failing to have regard to the circumstance where the sleeve of the appellant's jumper got caught in the unguarded saw as one of inadvertence or inattention and therefore not amounting to contributory negligence.

(e) In holding that the appellant bore a share of responsibility for his injuries which was assessed at 15%.

27 The appellant submitted that there was no evidence which would support the finding that he was standing to the left of the saw. The appellant gave evidence that immediately prior to the accident he was standing "a bit to the right of the disc". The appellant submitted that that evidence was corroborated by the respondent's evidence that the last time he saw the appellant prior to the accident, he was standing on the right hand side of the machine.

28 The appellant submitted that the problem he had encountered was that the particular work he was carrying out immediately prior to the accident required the saw to be angled at 45 degrees towards his right. The appellant referred to the following passage in his evidence at the trial:

"Q. How did you position the rod to be worked for the next cut, which hand did you use?

A. I have used my left just to put it in and to hold it in place, where the mark is. Because it was on and it was dripping oil on I had to turn off the saw, so I was holding the piece in place and as I went to turn off the saw, it was on 45 degree, the switch would go further away from you, because it is like you set it up on a 45 degree, so I had to go around it to turn it off and that's when it caught my jumper." (Emphasis added)

29 The appellant referred to the expert evidence led before the trial judge from Dr Neil Adams and, in particular, a passage in his report in which he concluded, unremarkably, that when an employee worked in close proximity to unguarded machinery carrying out a task requiring him to reach across the front of a saw blade to turn it off, it was foreseeable he could suffer entrapment and injury.

30 The appellant submitted that the respondent's overriding responsibility was to provide and enforce a safe and proper system of work. He also submitted that it was not the law that an employee was required to fulfil that basic requirement of his employer because he may have had some past experience with equipment of a similar nature.

31 Accordingly, he submitted that his injuries and disabilities were brought about by the breach of his employer's fundamental obligation, referring to March v Stramare [1991] HCA 12, (1991) 171 CLR 506. He also submitted that some temporary inadvertence to danger, lapse of attention, taking of risk, carelessness by an employee due to confusion, fatigue or natural slackening of attention or preoccupation in what he was doing should not be regarded as contributory negligence, referring to Commissioner for Railways v Ruprecht [1979] HCA 37, (1979) 142 CLR 563, Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24 and Commissioner for Railways v Halley (1978) 20 ALR 409 at 420.

The Respondent's Submissions on Contributory Negligence

32 The respondent submitted that the appellant was an experienced worker and that the accident could only have occurred because he disobeyed the system of work or because of his own negligence.

33 He drew the Court's attention to the appellant's evidence that he had experience and understanding in the use of a cold saw to the extent that he did not require instruction. Specifically, the appellant was aware that the cold saw was unguarded and agreed it was "a very very dangerous piece of equipment". The appellant had also given evidence that he had to be very careful when using the cold saw and that he could not look away when operating the machine.

34 The respondent challenged the appellant's submission that the trial judge had made a finding in the absence of evidence. The respondent submitted that the trial judge had examined the only two ways in which the accident could occur to arrive at his conclusion as to the appellant's position immediately prior to the accident. He submitted the trial judge's conclusion as to the appellant's position was "incontestably correct".

35 Counsel for the respondent drew attention to the High Court's decision in Liftronic Pty Limited v Unver [2001] HCA 24, (2001) 75 ALJR 876 and, in particular, to Gummow and Callinan JJ's observations (at 877 [60]) concerning the restraint which should be exercised on appeal in reviewing a decision on apportionment in a case of contributory negligence. He submitted, with as much deference as he could muster, that this Court should not succumb to the error their Honours identified as "too ready a judicial inclination to absolve people in the workplace from the duty they have to look out for their own safety".

36 The respondent submitted that the authorities clearly supported a finding of contributory negligence in the circumstances of the accident, particularly since the decision in Liftronic.

37 The respondent criticised the appellant's submissions which, he said, amounted to a contention that once primary liability against an employer was demonstrated it would be nearly impossible to secure a finding of contributory negligence.

38 Finally, the respondent submitted that having regard to the appellant's experience and his acute awareness of the risk of injury from the task in which he had been engaged, the trial judge's apportionment of 15% was not unkind.

Contributory Negligence: Statutory Background

39 Section 151N of the Workers Compensation Act 1987 (NSW) relevantly provides:

"(3) In an action for the award of damages founded on a breach of a statutory duty imposed on a defendant, contributory negligence on the part of the injured worker is not a complete defence, but the damages recoverable are to be reduced by such percentage as the court thinks just and equitable having regard to the person's share in the responsibility for the damages.

(4) Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 applies to an action for damages referred to in subsection (3)."

40 As at 12 May 1998 (the date of the appellant's accident) Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) included s 10(1) which relevantly provided:

"10. (1) Where any person suffers damage as the result partly of the person's own fault and partly of the fault of any other person or persons, a clam in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage ..."

41 "Fault" was defined in s 9 to mean:

"... negligence, or other act or omission which gives rise to a liability in tort or would, apart from this Part, give rise to the defence of contributory negligence but does not mean or include a breach of statutory duty."

Contributory Negligence: Appellate Review

42 The appellant challenges both the finding that he was guilty of contributory negligence and the finding that his share of responsibility for his injuries was 15%. The respondent submits that this court is constrained by Liftronic Pty Limited v Unver [2001] HCA 24, (2001) 75 ALJR 876 from reviewing the trial judge's decision on this issue.

43 Questions of contributory negligence and apportionment are always questions of fact: Bourke v Butterfield and Lewis Ltd [1926] HCA 38, (1927) 38 CLR 354 at 360, McLean v Tedman [1984] HCA 60, (1984) 155 CLR 306 at 315, Liftronic Pty Limited v Unver [2001] HCA 24, (2001) 75 ALJR 867 at 885 [90] per Kirby J and Joslyn v Berryman [2003] HCA 34, (2003) 77 ALJR 1233 at 1251 [100] per Kirby J. However, the principles to be applied on appeal to reviewing a finding of contributory negligence differ from those to be applied in an appeal challenging a finding on apportionment.

44 A finding of contributory negligence is no different to a finding of negligence and may be reviewed on appeal. While an appeal court must pay appropriate deference to the advantages the trial judge enjoyed in deciding whether or not a person was guilty of contributory negligence, it must not shirk its statutory obligation to conduct a rehearing and, where error is found, must substitute its own conclusion on the issue: s 75A(5) Supreme Court Act 1970 (NSW), see Fox v Percy [2003] HCA 22, (2003) 77 ALJR 989 at 993-994, esp. at [27], [29] per Gleeson CJ, Gummow and Kirby JJ; Callinan J at 1015-1017 [145] - [148]. As was said in Warren v Coombes [1979] HCA 9, (1979) 142 CLR 531 at 552 per Gibbs A.C.J., Jacobs and Murphy JJ, "[T]here is... no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge": see also Fox v Percy at 1005 [87] per McHugh J.

45 Appellate review of a trial judge's apportionment of liability as between respectively culpable parties, however, is governed by the stringent tests which limit appellate review of discretionary decisions.

46 In Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34, (1985) 59 ALJR 492 at 493 - 494 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in their joint judgment said: "[a] finding on the issue of apportionment is a finding upon a `question, not of principle or of positive findings of fact, or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds' ...such a finding, if made by a judge, is not lightly reviewed."

47 This Court has frequently reminded itself of the necessity to exercise restraint in reviewing a trial judge's decision on apportionment. As Sheller JA (with whom Powell and Heydon JJA agreed) said in Mousa v Marsh [2001] NSWCA 317 at [12]:

"It is well established that since a court's apportionment of the degree of liability due to the plaintiff's contributory negligence is a question not of principle or of positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds (see British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201), such a finding, if made by a judge, is not lightly reviewed."

48 To set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited [2001] NSWCA 461; (2001) 53 NSWLR 626 at 637 [60] per Stein JA with whom Davies A-JA agreed (655 at [189]). Fitzgerald A-JA was of the view that an appeal court was not entitled to interfere "if the trial judge's apportionment was reasonably open." (653 at [172]). Rolls Royce was appealed to the High Court as Amaca Pty Ltd v State of New South Wales [2003] HCA 44, (2003) 77 ALJR 1509. As Tobias JA (with whom Sheller and Foster AJA agreed) recently observed, the appeal was allowed on an issue which did not affect the correctness of Stein JA's statement of principle: Rexstraw v Johnson [2003] NSWCA 287.

49 Liftronic Pty Limited v Unver [2001] HCA 24, (2001) 75 ALJR 876 concerned the question whether the Court of Appeal "erred in setting aside as perverse a jury's apportionment of responsibility between plaintiff and defendant in a case where there was an admittedly justifiable finding of contributory negligence": Gleeson CJ at 868 [1].

50 Gummow and Callinan JJ characterised the case (at 875 [47]) as requiring "the intervention of this Court to correct an impermissible interference by the Court of Appeal of New South Wales with an entirely reasonable apportionment of fault by a properly instructed jury after an unexceptionable trial." (It is not clear that McHugh J agreed with their Honours' view about the instructions to the jury: see 869 - 870 [13], [14], 871 - 872 [25], [27].)

51 The passage from their Honours' judgment upon which the respondent relied states:

`[60] The apportionment of fault however was very much a matter for determination by the jury whose collective knowledge and experience of the workplace were unlikely to be inferior to those of judges. The different view of the majority of the Court of Appeal from the jury's view is probably indicative of too ready a judicial inclination to absolve people in the workplace from the duty that they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions, as upon any measures that a careful employer may introduce and seek to maintain. A jury is uniquely well qualified to decide, to use the language of Mason, Wilson and Dawson JJ in Braistina `[w]hat is considered to be reasonable in the circumstances of the case [according to] current community standards.' " (Emphasis in original)

52 The first point which should be made about the respondent's reliance upon this passage is that their Honours were considering the role of an appeal court on an appeal from a jury verdict. An appeal court's role in that context is more limited than its role in an appeal from a trial by judge alone: see John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50, (2003) 77 ALJR 1657, (2003) 201 ALR 77. However a finding, even by a jury, is open to challenge if it is one no reasonable jury could reach: John Fairfax Publications Pty Ltd v Rivkin at [185] per Callinan J (with whom Gleeson CJ and Heydon J agreed).

53 It is true that in referring to Bankstown Foundry Proprietary Limited v Braistina [1986] HCA 20, (1986) 160 CLR 301 at 309, their Honours were referring to a decision which concerned the appropriate formulation of the duty of care resting on an employer to provide a safe system of work. I do not understand their Honours' remarks, however, to have been intended to suggest that a finding of contributory negligence was as immune from review on appeal as the exercise of discretion involved in the apportionment exercise. Nothing in their Honours' remarks suggests that an appeal court should take any different approach to determining whether contributory negligence has been established to that dictated by precedent. Their Honours' remarks were a reminder that in considering the question of contributory negligence an appeal court should not lose sight of the fact that employees are required to take reasonable care for their own safety.

54 In my view Liftronic Pty Limited v Unver has nothing to say about the question whether a finding of contributory negligence was open to the trial judge.

Contributory Negligence: Principles

55 The respondent bore the burden of proving, on the balance of probabilities, that the appellant had been guilty of contributory negligence: Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 at 216 per Lord Wright (with whom Lord Atkin agreed); Commissioner for Railways v Halley (1978) 20 ALR 409 at 419 per Murphy J, Joslyn v Berryman [2003] HCA 34, (2003) 77 ALJR 1233 at 1237 [18] per McHugh J.

56 Although, as I have noted, questions of contributory negligence are ones of fact, observations in authorities concerning contributory negligence in the workplace are of utility in providing a framework within which the issue of fact may be decided. As Kirby J pointed out in Joslyn v Berryman (at 1251 [100]) it is in the interest of judicial consistency to have regard to the way earlier decision makers have approached similar factual issues as affording guidance. At the same time, care must be taken to ensure that decisions on matters of fact are not elevated to "propositions of universal application": see Teubner v Humble [1963] HCA 11, (1963) 108 CLR 491 at 503 per Windeyer J.

57 In Bourke v Butterfield and Lewis Ltd [1926] HCA 38, (1927) 38 CLR 354, a case concerning the issue of contributory negligence in the context of an employer's failure to fence a dangerous piece of machinery, Knox CJ, Gavan Duffy and Starke JJ said (at 360):

"It is clear that the statute was made for the protection of employees in a factory, whether careful or negligent. Indeed, if there were no negligence, there would be little necessity for the fencing off of dangerous machinery... it would be unreasonable to attribute to Parliament an intention to impose upon the employer responsibility for an injury which the employee deliberately invites, whether by adopting the means of inflicting it, or by rejecting the means of avoiding it, or for an injury which has happened because the employee deliberately took an unnecessary risk not in the interests of the employer, but for his own purposes. It is not easy to frame an exact formula; but it may be said that the employer is responsible for the negligence, but not for the misconduct, of his employee. Whether the conduct of an employee goes beyond mere thoughtlessness or want of care and amounts to misconduct is in every case a question of fact."

58 The majority also remarked (at 361) that the phrase "contributory negligence" was inappropriate in an action founded on "the breach of a positive statutory duty" but that "if no more is meant than that in such an action a plaintiff may be disentitled to succeed because of his own misconduct, we agree that is an accurate statement of the law."

59 Despite their Honours' injunction against the use of the phrase "contributory negligence" in cases of breach of statutory duty such as the present, it is a convenient epithet to use for present purposes.

60 The notion of "misconduct" referred to in Bourke v Butterfield has been expressed as meaning that in considering an allegation that an employee was guilty of contributory negligence, it is relevant to take into account whether the employee was acting "contrary to any rule, instruction, a device or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience ... [or] was performing his duties according to his habitual and long-standing practice for which he had the apparent and ... actual approval of the factory management.": Davies v Adelaide Chemical & Fertiliser Company Limited [1946] HCA 47, (1946) 74 CLR 541 at 551, 552 per Dixon J.

61 The notion of "thoughtlessness" referred to in Bourke v Butterfield is also expressed in synonyms such as temporary inadvertence to danger, lapse of attention, taking of a risk, carelessness by an employee due to confusion, fatigue or natural slackening of attention or preoccupation in what he or she is doing. In Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 176, Lord Wright, speaking of the degree of want of care which constitutes contributory negligence, said "[t]he jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins"; see also John Summers & Sons Ltd v Frost [1955] AC 740 at 777.

62 Lord Wright's metaphorical reference to drawing the line should not obscure the fact that the question whether an employee has been guilty of contributory negligence is one of degree. The authorities upon which the appellant relies are useful illustrations of how the court should approach the task of distinguishing between thoughtlessness and negligence.

63 The fact that there is no clear demarcation between an act done without reasonable care for one's own safety and an inadvertent, thoughtless act was emphasised in Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24 by Kitto, Menzies and Owen JJ. Referring to a submission on behalf of the respondent (plaintiff) that he had merely acted thoughtlessly or inadvertently and not negligently and that in those circumstances a finding of contributory negligence should not be made, the majority said (at 33):

"An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration of the tribunal of fact."

64 Windeyer J set the matter in context, saying (at 36-37):

"A safe system of work is one that is safe for the average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders.... In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care."

65 In Commissioner for Railways v Halley (1978) 20 ALR 409 at 415, Jacobs J emphasised that it was not sufficient for an employer seeking to establish that an employee was guilty of contributory negligence merely to demonstrate that the employee knew the task at hand was "highly dangerous." In such circumstances, the employer had to establish that the employee also knew that what he did, even though highly dangerous, "was not required of him in the performance of his duty." Murphy J said (at 420) in a passage upon which the appellant relied:

"Judicial mitigation of the harshness of the contributory negligence rule in its application to injured workers is illustrated by statements such as those in Carlyle v Commissioner for Railways (1954) 54 SR (NSW) 238. Mr Justice Herron said, after referring to a number of authorities: "The result of those pronouncements is that a mistake made by a workman will not usually be a good defence to an action if it was due to inadvertence, hurry, absorption in work or fatigue" (at p 249).

In Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 Lords Atkin and Wright, adopting Mr Justice Lawrence's words, stressed that, in considering this question: "... `the tribunal of fact has to take into account all the circumstances of work in a factory and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence'" (at p 214). Even more so, it is not for every risky thing that a worker may do in his unfamiliarity with the work that he ought to be held guilty of contributory negligence. Contributory negligence by an employee is not to be determined on the same basis as negligence. Carelessness by an employee due to confusion, fatigue, or natural slackening of attention or preoccupation in what he is doing need not, and ordinarily should not, be regarded as contributory negligence (see Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722). (Emphasis in original)

66 Commissioner for Railways v Ruprecht [1979] HCA 37, (1979) 142 CLR 563 emphasises the necessity, in considering contributory negligence, to pay careful regard to the nature of the work the employee was undertaking in order to assess the significance of the employee's conduct. Gibbs J (with whom Stephen J agreed) observed (at 568) that "in deciding whether the [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention born of familiarity and repetition, and the man's preoccupation with the matter in hand". Mason J pointed out (at 572) that "... the existence of an unsafe system of work increases the risk of injury to an employee through his inadvertence."

67 Murphy J (at 576 - 577) emphasised the risk to which preoccupation with the task at hand exposed the employee, saying:

"Employees often become so absorbed in their work that they are inattentive to their own safety. Momentary carelessness is not likely to be prevented or diminished by rules like contributory negligence or even by safety codes (statutory or otherwise) ..."

68 In Murphy J's view (at 577 - 578) before an employee could be found guilty of contributory negligence, there must be "wilful misconduct", having regard to "the cases which show that carelessness by an employee due to confusion, fatigue or natural slackening of attention, or preoccupation in what he is doing, is not to be regarded as contributory negligence (see Halley's Case; Carlyle v Commissioner for Railways (1954) 54 SR (NSW) 238, at p 249; Flower v Ebbw Vale Steel, Iron & Coal Co Ltd [1936] AC 206, at p 214; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152). It is not enough to show mere knowledge of the risk; the onus is on the employer to prove that the employee knew and fully appreciated the danger at the time and yet went on to incur it."

69 Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34, (1985) 59 ALJR 492 is important both for identifying the significance of considering the work environment and for identifying the approach to be taken in considering the relative responsibilities of the employer and employee. Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in their joint judgment said (at 493 - 494):

"It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent had failed to discharge its obligations to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgement or to negligence ...

The making of an apportionment as between a plaintiff and defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Limited [1953] UKHL 4; [1953] AC 663 at 662; Smith v McIntyre [1958] Tas SR 36 at 42 - 49 and Broadhurst v Milman [1976] V.R. 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

70 Dixon J's injunction in Davies v Adelaide Chemical & Fertiliser Company Limited that, in substance, the question is whether the employee was acting within or beyond the system of work the employer had established, is well illustrated by two decisions. In Liftronic Pty Limited v Unver a finding of contributory negligence by a jury of the order of 60% was upheld in circumstances where the plaintiff had used a system requiring him to bend his back even though he had been specifically warned against using that system to lift heavy objects. Conversely, in McLean v Tedman the majority (Mason, Wilson, Brennan and Dawson JJ) held that the appellant, a garbage man injured by a motorcar while crossing the road carrying a "humper" to be dumped into a garbage truck - a system of work of which his employer knew or ought to have been aware - was not guilty of contributory negligence.

71 Although as will become apparent it is not necessary to make a decision about apportionment in this case, I note that the statutory requirement that, if contributory negligence is found, the damages have to be "reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage ..." requires the trial judge to "compare the culpability of the plaintiff and defendant in the sense of the `degree of departure from the standard of care of the reasonable man' ": Liftronic Pty Limited v Unver [2001] HCA 24, (2001) 75 ALJR 867 at 872 [28] per McHugh J referring to Pennington v Norris [1956] HCA 26, (1956) 96 CLR 10 at 16. The trial judge has to have "regard ...to the `relative importance of the acts of the parties in causing the damage' ". It is " `the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination' ": Wynbergen v Hoyts Corporation Pty Limited [1997] HCA 52, (1997) 72 ALJR 65, 149 ALR 25 at 29.

Contributory Negligence - Consideration

72 At this stage it is worth recalling that the particulars of contributory negligence upon which the respondent relied were that the appellant had not followed instructions in relation to using the saw and, further, had not kept a proper lookout. The allegation of failing to follow instructions appears to have related to the issue of where the appellant was standing when he went to turn off the cold saw - an issue which, as I have noted, the trial judge did not resolve. The respondent did not submit that the fact the trial judge did not resolve that issue was an obstacle to this Court considering the appellant's complaints about the finding of contributory negligence. The respondent was content to conduct the appeal on the basis of seeking to uphold the trial judge's finding that the relevant contributory negligence related to the manner in which the appellant sought to turn the cold saw off.

73 The critical question for the trial judge, therefore, was whether the respondent had established that the appellant's failure to observe the proximity of the unguarded blade to his arm as he went to turn off the saw, while carrying out his allotted task, resulted from a failure to take reasonable care for his own safety which constituted contributory negligence or was the product of momentary inattention excusable in the circumstances. Because the question whether an employee's conduct constitutes contributory negligence or momentary and excusable inattention is a matter of degree, it was essential in determining into which category the appellant's conduct falls to analyse carefully the precise circumstances in which he came to be injured.

74 The trial judge's conclusion that the appellant was guilty of contributory negligence was based on the proposition that, wherever the appellant was standing, he leant across the spinning blade without paying sufficient attention to its existence. The only circumstance of the accident which, according to the trial judge, led to that that inattention being characterised as contributory negligence rather than "excusable" inattention, was the fact that the work was not of a repetitive character.

75 When asked where the respondent had put to the appellant that he had acted negligently Mr Watson SC properly conceded that it had not been put expressly to the appellant that he had been negligent. Rather, the matter had only been explored "to the extent that inference permits." He submitted that the respondent could discharge his burden of proving the appellant had been guilty of contributory negligence by showing that the "crucial act was the act of leaning around" the saw blade and "that inferences can be drawn from there".

76 It might be inferred, as Mr Watson SC submitted, that the accident occurred because of inadvertence, inattention or misjudgement on the appellant's part. Inadvertence etc was equally consistent with excusable carelessness, even if not inconsistent with a finding of contributory negligence. It was for the respondent to discharge the burden of proving that it was properly characterised as falling into the latter category.

77 The case is reminiscent of Lord Wright's observation in Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 at 216 - 217 that "the onus to establish the respondent's case [on contributory negligence] is on the respondents...that case must be properly proved; it thus becomes the more remarkable that it was never put to the appellant, when he gave evidence, that instructions had been given to him...and that he had disobeyed them."

78 The respondent's failure to put to the appellant that the manner in which he had sought to turn off the cold saw demonstrated a failure to take reasonable care for his own safety was, in my view, a significant flaw in its case on contributory negligence.

79 It was incumbent on the respondent to establish that an act or omission on the appellant's part constituted a departure from the standard of care of a reasonable employee in the circumstances and conditions in which he was required to work. The unguarded saw was highly dangerous. Parliament imposed a statutory obligation requiring it to be guarded. That requirement was clearly intended to prevent the real risk of serious injury to an inattentive employee working in close proximity to an unguarded blade. The trial judge was correct to conclude that the decision in McLean v Tedman did not preclude a finding that the appellant had been guilty of contributory negligence. However, in considering the issue of contributory negligence, the trial judge was required to take into account the fact that the respondent's breach of statutory duty in requiring the appellant to work with an unguarded saw exposed the appellant to a significant risk of injury - particularly if he was inadvertent or careless: see McLean v Tedman at 312, 315, Commissioner of Railways v Ruprecht, Podrebersek at 493.

80 The issue of contributory negligence had to be considered in the context that the appellant, while experienced in the use of a cold saw, was in other respects inexperienced. He had been in the respondent's employ for less than a fortnight. The accident happened in circumstances where the appellant was working within the system of work, albeit unsafe, the respondent had devised. On the day in question he was required to operate the saw at a 45º angle. It was the first time he had operated it at that angle. He was, accordingly, unfamiliar with performing his work in this manner, particularly with an unguarded blade. He was also inexperienced in operating a cold saw with the on-off switch located on the saw unit. The task the appellant was undertaking required him to focus on positioning the metal rod precisely along a chalk mark to ensure he made an accurate cut. He was wearing a jumper, a matter of which there was no complaint. It was the jumper which first became entangled in the saw, drawing the appellant's arm onto the blade.

81 It is clear, in my view, that his preoccupation with the task at hand and his unfamiliarity with the position of the unguarded blade when operating the cold saw at an angle meant that he may have been thoughtless or careless as to the position of the blade, but that he did not act without reasonable care for his own safety.

82 The trial judge's reasons do not demonstrate that he considered the circumstances and conditions in which the appellant was required to carry out his work. The fact that the work was not of a repetitive nature was only one of the circumstances which might be taken into account. In this case, it was not to point that the work was not repetitive. More significant was the fact that the respondent required the appellant to undertake a task calling for his attention to be focused on making a precise cut along a chalk mark in circumstances where the respondent had failed to discharge his duty to guard a highly dangerous blade. The unsafe system of work increased the risk of injury to the appellant if he was inadvertent, whether because of preoccupation with the cut he was making or unfamiliarity with the position of the unguarded blade, or both.

83 As the appellant submitted, correctly in my view, the trial judge failed to take into account the fact that with the blade angled at 45 degrees as the task at hand required, the appellant had no choice but to put his arm in close proximity to the unguarded blade to turn off the saw.

84 In my view, the respondent failed to discharge the burden of demonstrating that the appellant had been guilty of contributory negligence.

85 As the trial judge's conclusion that the appellant had been guilty of contributory negligence was based on inference, this Court is in as good as position as the trial judge to decide on the proper inference to be drawn from the facts: Warren v Coombes [1979] HCA 9, (1979) 142 CLR 531 at 551.

86 In my view the trial judge was in error in failing to have regard to all the circumstances and conditions in which the appellant was working in order to determine the issue of contributory negligence. The evidence did not justify a conclusion that the appellant's conduct demonstrated a departure from the standard of care of the reasonable worker rather than an occasion of momentary inadvertence which was "excusable because not incompatible with the conduct of a prudent or reasonable man": McLean v Tedman; Twynam Pastoral Co Pty Ltd v Bennett [2002] NSWCA 319 at [73] per Heydon JA (with whom Sheller and Beazley JJA agreed).

87 I would uphold the appellant's challenge to his Honour's finding that the appellant was guilty of contributory negligence.

Damages

Issues on Appeal

88 In the Notice of Appeal the appellant made the following complaints about damages:

(a) That the award of 40% for non-economic loss was inadequate. (Ground 8)

(b) That his Honour erred in finding that the appellant required no further operations. (Ground 9)

(c) That his Honour failed to distinguish between the appellant's potential physical capacity to engage in suitable employment and his ability to secure such suitable employment. (Ground 10)

(d) That his Honour found that the appellant had a reduced earning capacity of two-thirds of his pre-accident condition yet correlated this to a weekly loss of $158.00 when it should have been two-thirds of $500.00, viz. $333.00. (Ground 11)

(e) That his Honour erred in his assessment of the appellant's post accident earning capacity. (Ground 12)

(f) That his Honour erred in his assessment of the loss of superannuation benefits. (Ground 13)

(g) That his Honour erred in failing to accept the tender of the Furzer Crestani Report of 9 October 2002 calculating the loss of superannuation benefit. (Ground 14)

(h) That the loss of superannuation benefit could not be known until his Honour indicated his findings on economic loss, therefore his Honour erred in regarding the tender as an application to re-open. (Ground 15)

89 The appellant asked that the trial judge's orders of 17 October 2002 be set aside and a verdict and judgment be entered in his favour in the sum of $539,911.00 plus costs, alternatively that the matter be remitted for further hearing before a differently constituted Court.

The Trial Judge's Findings

90 The trial judge dealt in detail with the appellant's injuries, his treatment, the physical and emotional sequelae of the accident and the medical practitioners' opinions of the appellant's prognosis. He did not find anything in the manner in which the appellant gave evidence which suggested obvious unreliability or dishonesty.

91 The appellant had had three operations to repair the damage to his arm. The trial judge found that the appellant would not require any further operations.

92 The medical reports tendered by both sides demonstrated the effectiveness of the surgery as well as the rehabilitation the appellant underwent. None of the experts was required for cross-examination.

93 The trial judge referred to reports tendered by both parties which spoke of the appellant's improvement. He concluded that those medical observations reflected the appellant's expressed desire to build up his strength and return to the workforce.

94 There was no dispute that the appellant suffered from depression caused, at least in part, by the accident. The trial judge noted the respondent's submission that there were other matters which contributed to the appellant's problems independently of the accident including family acrimony, unhappiness with the insurance company (presumably the respondent's insurer) apparently refusing to make payments in relation to some of the appellant's complaints, smoking marihuana and his distress at discovering that he had Hepatitis C.

95 The trial judge referred to the appellant's evidence that he felt considerably better in himself and better able to cope with the pain he experienced from time to time in his right arm, neck and wrists. He was not taking medication for pain on any regular basis.

96 He took into account the appellant's evidence that he still suffered pain in his arm particularly in cold weather and had some loss of sensation in the arm as well as difficulties with pinch, grip and loss of supination. He referred to the evidence from rehabilitation specialists that the appellant was not fit for work requiring heavy use of his right arm.

97 The trial judge noted the appellant's certification as a welder, experience as a kitchen hand, prior work in a furniture factory and the fact that he held a forklift driver's licence. He accepted evidence that work as a spotter which had been undertaken by the appellant a year after the accident would continue to be available to him, although the number of such positions tended to vary depending on the strength of the building market. He also accepted the respondent's evidence that the appellant did not need to be able to lift heavy equipment to perform welding duties of the type required at the respondent's premises. This meant the appellant could still be employed in the sort of operation in which the respondent had employed him. He took into account the reports of the appellant's rehabilitation specialist, Dr Jones, and the respondent's experts which noted continuing improvement in function and dexterity, presumably in the appellant's right arm.

98 The trial judge found that the appellant was likely to recover from the abyss of despair into which he fell after the accident. He pointed out that the appellant had strong support from his family and was keen to resume work and had made efforts in that regard. He noted that the appellant regarded physique and physical strength as important and would avoid dependency. He concluded that once the appellant obtained employment his self-image would be even more improved.

99 On the issue of depression he accepted that the appellant was troubled by matters not caused by the accident, being his history of drug use, his concern about Hepatitis C and past family problems.

Damages - Decision

Non-Economic Loss

100 An appeal from an assessment of damages for non-economic loss in relation to personal injuries from a judge sitting without a jury is to be determined in the same manner as an appeal from the exercise of discretion by a trial judge. An appeal court may only alter the trial judge's decision if the judge acted on a wrong principle of law, misapprehended the facts or made "a wholly erroneous estimate of the damage suffered": Moran v McMahon (1983) 3 NSWLR 700 at 719 and 723 per Priestley JA, with whom McHugh JA agreed, Jones v Bradley [2003] NSWCA 81 at [117] per Santow JA (with whom Meagher & Beazley JJA agreed); see also Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports ¶ 81-695 at [15] - [17].

101 Counsel for the appellant had submitted to the trial judge that the level of the appellant's impairment when compared to a most extreme case in accordance with the approach required by Southgate v Waterford (1990) 21 NSWLR 427 and Dell v Dalton (1991) 23 NSWLR 528 should be 55% which equated to an amount of $125,593.00. Counsel for the respondent had submitted that the level of impairment was in the range of 35% - 40%.

102 Having regard to the nature and extent of the appellant's injury and the degree of recovery, and taking into account the appellant's residual psychological problems which the trial judge found had not been eliminated, the trial judge concluded that 40% was a realistic percentage impairment figure of a most extreme case. That amounted to $79,922.50 which his Honour rounded up to $80,000.00.

103 The appellant submitted that an award of 40% for non-economic loss was manifestly inadequate. In his written submissions he complained that the trial judge had not provided examinable reasons for his decision to assess the appellant's level of impairment: cf Beale v GIO (1997) 48 NSWLR 430; Misfud v Campbell (1991) 21 NSWLR 725. In oral submissions, counsel for the appellant conceded that "in fairness to a busy trial court judge in that court, he probably did just enough".

104 The respondent submitted the trial judge's finding was within the range and that the appellant had failed to identify an appellable error.

105 The appellant's written submissions set out in detail the injuries the appellant had suffered and their consequences. The respondent's written submissions criticised this approach on the basis that it was an attempt to "re-put submissions which were rejected or not entirely accepted below".

106 The appellant complained that the trial judge did not refer to the opinion of his treating neurologist, Dr Griffith. Dr Griffith presented a gloomy prognosis for the appellant's future.

107 The respondent submitted, however, that Dr Griffith only commenced treating the appellant three years after his accident and then mainly in relation to neck pain. Further, it was submitted that Dr Griffith's opinion was not shared by any other doctor.

108 In my view, the trial judge's award for non-economic loss was within an appropriate discretionary range for damages. Contrary to the appellant's written submission or his counsel's grudging oral concession, the trial judge gave detailed reasons in his consideration of the appellant's injuries for his conclusion that 40% was a realistic percentage impairment figure. He adverted to those reasons when pronouncing his conclusion. His judgment demonstrates that he considered the matters set out in the appellant's written submissions. The appellant has not demonstrated that his Honour's award for non-economic loss was erroneous in the required sense or, indeed, in any sense.

109 Ground 8 should be rejected.

Future Operations

110 The appellant sought to make good a ground of appeal that the trial judge had erred in dealing with evidence from the appellant's treating neurologist, Dr Griffith, that the appellant would require surgical decompression in relation to a bilateral carpal tunnel syndrome he had developed.

111 The respondent pointed out that the appellant had not claimed damages upon the basis of any future operations in relation to carpal tunnel syndrome, a matter counsel for the appellant did not contest. Another difficulty the appellant faced in this respect that there was no evidence of the cost of any such operations.

112 Although counsel for the appellant was reluctant to abandon this ground of appeal formally, in the absence of a claim having been made for this item or any evidence of the cost of any future operations, it was doomed to fail.

113 Ground 9 should be rejected.

Loss of Earning Capacity

114 The essential error of which the appellant complained in this respect was that the trial judge had failed to distinguish between the appellant's potential physical capacity to engage in suitable employment and his ability to secure such suitable employment. He drew the Court's attention to Wade & Ors v Allsopp & Anor (1976) 50 ALJR 643 at 647, 10 ALR 353 at 361 where Stephen J, in effect, observed that an applicant for employment who had diminished capacity was at a disadvantage in the employment market compared to those not so afflicted.

115 As much may be accepted. The difficulty, however, with the appellant's complaint in this respect is that his Honour referred to Wade & Ors v Allsopp & Anor and accepted (at [44]) the difficulties which his disabilities would pose to the appellant in the employment market and took such matters into account in assessing the appellant's economic loss.

116 In his oral submissions, counsel for the appellant submitted the trial judge's assessment that the appellant retained two-thirds of his earning capacity was "manifestly wrong". He added that it was "insupportable to conclude that this man with all his problems, disabilities is arbitrarily only one-third disabled", but said he could not "develop that usefully any further".

117 In my opinion the appellant has not established his Honour's assessment of the appellant's loss of earning capacity was erroneous. As the respondent submitted, he approached that assessment exercise in an entirely orthodox manner.

118 Ground 10 should be rejected.

Quantification of the reduction in the Appellant's Earning Capacity

119 Grounds 11 and 12 relate to this issue.

120 The trial judge assessed the appellant as having a reduced earning capacity of two thirds of his pre-accident condition. As at 30 June 2001 the weekly gross earnings for an employee apparently identified as comparable to the appellant was $473.50. On the basis that he had assessed the plaintiff as having lost one third of his pre-accident earning capacity, the trial judge calculated one third of the figure of $473.50 and used that figure to calculate the appellant's economic loss.

121 It became apparent in debate during the appeal that Ground 11 of the appeal proceeded on the assumption that the trial judge had assessed the appellant as having lost two thirds of his earning capacity. In the course of argument, it became apparent that counsel for the appellant conceded that the trial judge had concluded that the appellant had lost one third of his earning capacity but complained that that was too little.

122 Grounds 11 and 12 should be rejected.

Loss of Superannuation Benefits

123 Grounds 13 - 15 relate to this head of damages.

124 The trial judge awarded the appellant $22,768.24 under this head of damages. He calculated this amount by taking 11% of the figures he had awarded for past and future economic loss. (I refer below to this approach to the calculation of loss of superannuation benefits as the "rule of thumb approach"). The appellant complained that this figure was erroneous and that the figure should have been $42,466. Counsel submitted the error arose because his Honour refused to permit the appellant to tender a report dealing with superannuation loss prepared by Furzer Crestani. The circumstances in which this came about require elaboration.

125 The appellant was entitled to recover the superannuation benefits he would ultimately have received, but for his injuries, following his normal retirement: Todorovic v Waller [1981] HCA 72, (1981) 150 CLR 402 at 425-427. Any such loss must be reduced to a present value at the date of trial. Proof of these matters has been said normally to require actuarial evidence: NSW Ministerial Corporation v Wynn [1994] Aust Torts Reports ¶81-303, at 61,740 per Handley JA (with whom Clarke and Sheller JJA agreed). This point was not the subject of the appeal to the High Court: see Wynn v NSW Ministerial Corporation [1995] HCA 53, (1995) 184 CLR 485.

126 During the trial both parties tendered experts' reports dealing with the issue of economic loss. The appellant tendered a report prepared by Furzer Crestani dated 7 June 2002 which quantified the appellant's loss of superannuation benefits on a present value basis at $102,117. The respondent tendered a report prepared by Horwath NSW Pty Limited which quantified the appellant's loss of superannuation benefits on a present value basis (assuming the date of the trial to have been 15 March 2002) as between $12,167 and $25,300. The range was derived because Horwaths adopted three scenarios for the appellant's net weekly loss of $100, $200 and $250 respectively.

127 The trial concluded on 19 June 2002. Judgment was reserved and delivered on 12 September 2002.

128 To guard against the possibility that he had erred in calculating figures or applying his findings to the calculations or "that any of the relevant amounts have changed since the hearing", his Honour said he would "hear the parties on the precise amount which should be awarded to the Plaintiff in consequence of [his] findings." He directed the parties to prepare a schedule setting out the competing figures if agreement could not be reached.

129 The matter was relisted for 19 September 2002. On that day the appellant's counsel (who was not the counsel who had appeared for him throughout the principal hearing) informed the trial judge that he was awaiting a calculation of the plaintiff's superannuation entitlements because, on the appellant's contention, his Honour had made an error in calculating that figure. Counsel was unable to make any submission as to the figure the appellant contended ought to have been awarded on this account. The matter was adjourned by consent to 9 October 2002. It was not ready on that date and was stood over again to 17 October 2002.

130 On that day the appellant's counsel sought to tender a report from Furzer Crestani which calculated the appellant's loss of superannuation benefits as $42,466.

131 The respondent's counsel opposed that course on the basis that the appellant was seeking to reopen and adduce further evidence.

132 One of the matters which appears to have troubled the trial judge in considering the appellant's application to tender the new Furzer Crestani report was the fact that the figure in that report had apparently been reached using a different methodology to the one he had used to calculate the appellant's loss of superannuation benefits. The trial judge appeared to acknowledge that the appellant might have been correct to say that the precise figure for loss of superannuation benefits could not be calculated until he had determined the appellant's economic loss.

133 The respondent's counsel reminded the trial judge of the two expert reports dealing with the issue which had been tendered and that there had been argument about superannuation entitlements. He submitted the trial judge had weighed the competing arguments and decided the issue based upon the evidence. He submitted the attempt to tender the new report was an attempt to reopen.

134 He submitted that the approach the trial judge had taken to the calculation of loss of superannuation benefits represented "the simplest assessment". He said one view was that the figures for net past economic loss and net future economic loss had to be translated into gross figures in order to assess superannuation loss. He said, however, that adjustment could be dealt with in two ways in the "day to day running of these matters", either by using a figure of 8% or 9% on gross figures or 11% on the net figures. The latter was the approach his Honour had taken. On that basis, counsel for the respondent submitted his Honour had correctly assessed "the global superannuation position".

135 His Honour rejected the tender of the new Furzer Crestani report. He delivered a short judgment in which he pointed out that the issue of the precise calculation of the appellant's damages had been before him on three occasions since he had given judgment on 12 September 2002. He noted the appellant's counsel's concession that the report he sought to tender did not address paragraph 46 of his judgment in which he had set out his calculation of the appellant's loss of superannuation benefits. He concluded that "in the circumstances ... it is [not] appropriate to permit the plaintiff to tender further evidence."

136 In argument before this Court counsel for the appellant said he was unaware of the "rule of thumb" approach his Honour had apparently taken. Counsel for the respondent appeared to be aware that an approach which arrived at the figure for loss of superannuation benefits by calculating 11% of net past and future economic loss was used from time to time. He did not suggest that it was a universal practice or that it had received judicial imprimatur.

137 Counsel for the respondent submitted that, having regard to the sequence of events I have outlined, the trial judge was correct to reject the new Furzer Crestani report.

138 The expert reports which were tendered in evidence before his Honour appear, as might be expected, to have approached the issue of calculating the appellant's loss of superannuation benefits on a more sophisticated basis than the "rule of thumb" approach his Honour adopted. In his written submissions the appellant criticised the trial judge's approach, complaining that his Honour provided no reasoning as to how the figure of 11% was arrived at or why it was used. The appellant submitted that the figure clearly did not accord with proper mathematical procedures which took into consideration the standard employer contribution based upon gross earnings, tax scales and earning figures as set out in the first Furzer Crestani report which was tendered.

139 Luntz, Assessment of Damages for Personal Injury and Death (Butterworths, 4th Ed [at 5.3.6]) notes that the method of calculating loss of superannuation benefits "has not yet been settled." In a footnote, Mr Luntz refers to a practice which developed in Queensland "of allowing 6% of loss of earning capacity, though it was recognised that this was only a rough guide", referring to Hyne & Son Pty Limited v Tomlinson (Queensland Court of Appeal, 22 May 1998, unreported, BC9802125 at 9 - 10).

140 Although, as I have noted, the Court of Appeal said in NSW Ministerial Corporation v Wynn [1994] Aust Torts Reports ¶81-303 that proof of loss of superannuation benefits normally requires actuarial evidence, as the "rule of thumb" approach the trial judge took demonstrates, the courts and profession have not taken this injunction to heart. Decisions of this court illustrate that loss of superannuation benefits are calculated without actuarial evidence: see Donovan v Port Macquarie Base Hospital [1999] NSWSC 1274; Ryan v State Rail Authority of New South Wales [1999] NSWSC 1236 at [38]; Thomson v Mybner Pty Ltd [2000] NSWSC 766 and Welsh v Cotton Seed Distributors [2000] NSWSC 861.

141 Earlier in Jongen v CSR Ltd (1992) Aust Torts Reports ¶81-192, Anderson J considered competing actuarial evidence concerning the method of calculating loss of superannuation benefits. He concluded (at 61,713) that, having regard to the policy that courts should keep the calculation of damages in personal injury cases simple (Dews v National Coal Board [1988] AC 1 per Lord Griffiths at 13), it was preferable to assess loss of superannuation benefits by having regard only to the value of what would be the employer's contribution if the disability had not occurred, appropriately discounted for tax and the fact that it is a payment to a privately administered fund rather than into the hands of the plaintiff.

142 Loss of superannuation benefits are calculated without actuarial evidence in Western Australia and Queensland: see Mitchell Erectors Pty Ltd v Hinnen [2002] WASCA 169; Villasevil v Pickering (2001) 24 WAR 167; Zappara v Jones (WASC, unreported, 22 May 1997, BC9702411); Love v Clarona Pty Ltd (WASC, unreported, 24 January 1997, BC9700040); Hedge v Trenery (QCA, unreported, 7 November 1997, BC9706085); Mott v Boggan [1998] QSC 265 at [48] and [49]; Re Baker v Hanlon, Evans & United Dairy Foods [1999] QSC 142 at [23]; cf Kelly v Fletcher (WASC, unreported, 22 October 1997, BC9705411) and Tasmanian cases such as Heather v Vita Pacific Ltd (1996) 6 Tas R 52 at 65 and Grimsey v Southern Regional Health Board [1997] TASSC 103; (1997) 7 Tas R 67 at 116.

143 In Villasevil v Pickering (2001) 24 WAR 167, Anderson JA (with whom Malcolm CJ and Grove AJA agreed) observed (at [55]) that the general approach reflected in the "Jongen formula" had been adopted and received approval in West Australian courts. Describing the method as "rough and ready", his Honour said (at [56]:

"A common version of the Jongen formula takes the prevailing minimum employer's contribution rate prescribed by the [Superannuation Guarantee (Administration) Act 1992 (Cth)], applies that percentage rate to the lump sum figure determined as the present value of the loss of future earning capacity and deducts 30 per cent to cover the income tax that is levied on contributions (which was then, and, I think, still is, 15 per cent), the fact that the plaintiff is not entitled to the benefit of the contributions until retirement and other contingencies such as the risk that fund administration costs may exceed investment income and the risk of the failure of the fund."

144 Having referred to the practice of calculating loss of superannuation benefits in Queensland as reflected in Hedge v Trenery, Mott v Boggan and Re Baker v Hanlon, Evans & United Dairy Foods, Anderson J stated (at [61]) that, although the method of calculating loss of superannuation varied between these states, "there is no great difference in point of principle". His Honour concluded at [65] to [66]:

"It can be seen, therefore, that the question whether an allowance should be made for loss of superannuation benefits where no actuarial evidence is produced remains a little uncertain.

In my opinion, once it is accepted that superannuation contributions by employers are virtually compulsory, the Court can hardly avoid the conclusion that loss of earning capacity will, as a general rule, involve an additional loss in the form of loss of superannuation benefits. The Court is then bound to do the best it can, I would have thought, to evaluate that loss in arriving at a just overall award."

145 However, in Roads and Traffic Authority v Cremona (2001) 35 MVR 190, [2001] NSWCA 338 at [90] Sheller JA (with whom Priestley and Stein JJA agreed) referred to Jongen and said "[n]o general principle can be derived from the conclusion [Anderson J] reached applicable to the facts of this case." The Court of Appeal used a more sophisticated test based on the actuarial evidence. The High Court refused special leave: (2002) 23(17) Leg Rep SL 3.

146 Roads and Traffic Authority v Cremona concerned a Compensation to Relatives Act 1897 claim on behalf of a wife and two children for loss of superannuation benefits in relation to the death of a high income medical practitioner. The plaintiff's claim was based on an actuarial report. The defendant sought to challenge the methodology used in the plaintiff's expert report on the basis of Jongen.

147 Clearly the question of the extent to which a plaintiff must go to prove a claim for loss of superannuation benefits must turn on the facts of each case. Not every case will require sophisticated actuarial evidence.

148 Finally I note that the Review of the Law of Negligence, (The Ipp Report, at p 218) preferred the Jongen approach for its certainty and simplicity.

149 In my view, his Honour was not in error in refusing to permit the appellant to tender the further expert report on 19 October 2002. As the above discussion reveals, calculation of this head of loss by reference to actuarial reports is not mandatory. The trial had concluded on 19 June 2002 when counsel addressed and his Honour reserved his judgment. He had delivered judgment on 19 September 2002. The only reason the matter came back before his Honour was to deal with fine tuning his Honour's calculations. What the appellant sought to do on 19 October 2002 was to challenge the methodology his Honour had applied to calculate the appellant's loss of superannuation benefits by putting before him a report which used a different methodology and arrived at a different figure. His Honour was in my view, entitled to regard that application as an application to reopen to tender further evidence. No material was placed before the trial judge to demonstrate why the appellant should be given that leave so long after the close of evidence in the case.

150 Grounds 13 - 15 should be rejected.

Orders

151 After hearing from the parties on 17 October 2002, the trial judge adjusted some items of damage to arrive at an award of $262,533.21, taking into account the 15% reduction for contributory negligence and allowing for the workers compensation payback of $183,438.21. I have calculated the effect of the 17 October adjustments as leading to a gross award of $492,300.24. Deducting the workers compensation payback of $183,438.21 but making no deduction for contributory negligence leads to a net award of $308,862.03. I have given the parties liberty to apply to correct that figure if my calculations are incorrect.

152 As the argument on contributory negligence occupied the substantial time taken for the appeal, the respondent should pay the costs of the appeal.

153 I would make the following orders:

1. Appeal allowed.

2. Judgment below set aside.

3. In lieu thereof, verdict and judgment for the appellant in the amount of $308,862.03.

4. Parties to have liberty to apply on two days notice in respect of the calculation of the verdict and judgment, such liberty to be exercised no later than 14 days after the date of this judgment.

5. Respondent to pay the appellant's costs of the appeal.

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LAST UPDATED: 24/02/2004