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  • Unreported Judgment

David Rex Hall v Margaret Kay Hall


[1979] FC 48


No. 3211 of 1975



Mr. Justice Lucas

Mr. Justice Matthews

Mr. Justice Connolly


(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)




(First Plaintiff) Respondent

- and -


(Second Plaintiff)

- and -


(Defendant) Appellant


MR. JUSTICE LUCAS: This is an appeal from a judgment delivered on 19 March 1979 wherein the learned judge awarded damages for injuries sustained in an accident which happened on 31 August 1975.

There were two plaintiffs. There is no appeal in respect of the small amount awarded to the female plaintiff so the appeal is limited to the amount awarded to the male plaintiff on the ground that the amount so awarded was manifestly excessive. The circumstances were such that the defendant admitted liability for negligence so that the only task which fell to the learned trial judge was that of the assessment of damages.

The male plaintiff was 25 years of age at the date of the accident. He was a plant operator and had not been trained for any other occupation. In the accident he fractured his thigh and appears to have sustained a soft tissue injury to his back. He was in hospital for three weeks until 17 September 1975 and until the middle on January 1976 his leg was in plaster. After it come out of the plaster he had to use crutehes until the middle of February 1976 and he returned to work on 28 February 1976. During this period he suffered considerable pain.

The nature of his work as a plant operator was that he worked on contract and the equipment that he used was known as a backhoe. After he went back to work he worked on until March 1977 but he experienced considerable trouble both with his leg and his back. Then on 22 June 1977 he underwent a further operation which consisted of the removal of a pin which had been inserted in his hip. This gave immediate relief and he returned to work again a month or two later. Finding difficulty in negotiating his work with the backhoe, in October 1977 he changed to a different type of machine known as a bobcat and he found that he could cope with the work much more successfully with that machine. He still, however, has to use the backhoe one or two days a month and this causes him pain in the back.

The plaintiff was examined by two orthopaedic surgeons and of the two the learned judge preferred the evidence of Dr. Donald Watson. Dr. Watson's conclusions are set out in a report which he made on 8 February 1979 in these terms:

“The significant permanent disability in my mind is the slight shortness of the leg. In theory this should matter very little providing he always remembers to have his footwear adjusted but it is not always easy to remember and this sort of thing and this too wouldn't matter very much except that he has had a long period of backache and the slight lateral tilt imposed by the shortening of the leg will throw added strains on the spine which has already been the site of symptoms. Unless he is extremely careful he is likely to have more back trouble than he presently has.”

The learned judge expressed his conclusions as to the plaintiff's future prospects in this way:

“Having regard to the overall favourable impression which this plaintiff gives to me and to the fact that I am satisfied that he had had a very sore back from time to time I am satisfied on the balance of probabilities that the injury has been sufficient to adversely affect him in his work in the way asserted by him. I am satisfied that this plaintiff understands and appreciates his condition. He appears to be a sensible young man and is unlikely to take any liberties with his back. It is probable that he will conduct his work in the future using machinery such as the ‘bobcat’ as far as possible and minimising the use of machinery such as the end loader” - by which, I take it, be referred to what has been described as the backhoe - “which impose some strain on him. However he still us as the end loader ‘one or two days a month’. Thus it seems to me, subject to the circumstance that he has a back which will no doubt be susceptible to further injury he will be able to take care in his work and thus probably avoid any serious consequences. However his work as an earthmoving contractor is of a type where he will be much more at risk than would be a person with a sedentary occupation. He has had no training for any other work than earthmoving. Thus in assessing damages I must have regard to future risks limited though they should be in the way that I have indicated. Accordingly there is a component of future economic loss because if he does happen to encounter further trouble with his back it is likely to have considerable effect on his earning capacity.”

The learned judge proceeded to award him the total sum of $50,657 made up of past economic loss assessed at $12,657, as to which the appellant makes no complaint, future economic loss $20,000, and pain and suffering and loss of enjoyment of life $18,000. Special damages were agreed and the learned judge allowed interest at 4 per cent on the whole amount of damages which he awarded.

In my opinion, even taking into account the favourable impression which the learned judge formed of the plaintiff, the awards for past and future pain and suffering and for future economic loss were outside the bounds of a sound discretionary judgment and were disproportionate to the injuries suffered by the plaintiff.

It was pointed out to us by Mr. Philp who appeared for the appellant that the sum of $20,000 which was the amount awarded for future economic loss represented on the 8 per cent interest tables a loss of $30 a week for a period of 25 years.

I would reduce the total award for pain and suffering to $10,000 and I would attribute $4,000 of that to the period up to trial and $6,000 to the future. It appears that most of the pain and suffering was sustained before the trial took place. I would reduce the award for future economic loss to an amount of $9,000. The learned judge, as I have said, awarded interest on the whole amount of his judgment at the rate of 4 per cent for a period of three and a quarter years, which was the period between the issue of the writ and the date of trial. It is suggested, and I agree, that this was not the wholly proper approach to the matter. I would award interest on the past loss of earnings, on the pain and suffering up to trial and on the agreed special damages at the rate of 4 per cent for a period of three and a quarter years, taking into account the different times at which the various losses have been sustained and working down from a rate of interest of 8 per cent. The assessment which I would substitute for that made by the learned judge is therefore as follows:

Past economic loss


Past pain and suffering


Agreed special damages


Interest at 4 per cent on the above sums for three and a quarter years rounded off at


Future pain and suffering


Future economic loss


a total of $34,026.25 and, for the reasons I have given, I would order that the appeal be allowed with costs and that the amount for which judgment is entered for the plaintiff be reduced to $34,026.25.

ME. JUSTICE MATTHEWS: I agree with the proposed orders and with the reasons given by my brother.

MR. JUSTICE CONNOLLY: I, too, agree. I have nothing to add.

MR. JUSTICE LUCAS: The order of the Court will be then as I have indicated.


Editorial Notes

  • Published Case Name:

    David Rex Hall v Margaret Kay Hall

  • Shortened Case Name:

    David Rex Hall v Margaret Kay Hall

  • MNC:

    [1979] FC 48

  • Court:


  • Judge(s):

    Mr. Justice Lucas, Mr. Justice Matthews and Mr. Justice Connolly

  • Date:

    24 Jul 1979

Litigation History

No Litigation History

Appeal Status

No Status