Wegrzyn v Carlton and United Breweries (Queensland) Limited
[1998] QCA 391
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- Wegrzyn v Carlton and United Breweries (Queensland) Limited[1998] QCA 391
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Wegrzyn v Carlton and United Breweries (Queensland) Limited[1998] QCA 391
Wegrzyn v Carlton and United Breweries (Queensland) Limited[1998] QCA 391
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 8596 of 1997
Brisbane
[Wegrzyn v. C.U.B.]
BETWEEN:
JOSEF WEGRZYN
(Plaintiff) Appellant
AND:
CARLTON AND UNITED BREWERIES (QUEENSLAND) LIMITED
ACN 010 612 021
(Defendant) Respondent
McPherson J.A.
Pincus J.A.
Helman J.
Judgment delivered 24 November 1998
Separate reasons for judgment of each member of the Court, Helman J. dissenting in part.
1.APPEAL ALLOWED WITH COSTS.
2.ORDER THAT THE APPELLANT RECOVER AGAINST THE RESPONDENT THE SUM OF $101,387.19 IN LIEU OF $42,471.28.
3.CROSS-APPEAL DISMISSED WITH COSTS.
| CATCHWORDS: | PERSONAL INJURY - contributory negligence - apportionment - where safe system of work in place but employer knew it was not always followed - appellant injured when not following safe system of work - whether appellant’s fault should be excused as momentary inattention - whether employer should bear no more responsibility than employee - quantum - whether appellant’s earning capacity wrongly assessed - estimated 30% disability to left hand translated to 27% arm disability. Bus v. Sydney County Council (1989) 167 C.L.R. 78 |
| Counsel: | Mr S C Williams Q.C. with him Mr J P Kimmins for the appellant. Mr P A Keane Q.C. with him Mr M T O'Sullivan for the respondent. |
| Solicitors: | Taylors for the appellant. O'Shea Corser & Wadley for the respondent. |
| Hearing Date: | 31 July 1998. |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before McPherson J.A.
Pincus J.A.
Helman J.
[Wegrzyn v. CUB]
BETWEEN:
JOSEF WEGRZYN
(Plaintiff) Appellant
AND:
CARLTON AND UNITED BREWERIES
(QUEENSLAND) LIMITED
ACN 010 612 021
(Defendant) Respondent
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 24 November 1998
- I agree with the reasons of Pincus J.A. and the orders proposed by his Honour for disposing of this appeal.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 8596 of 1997.
Brisbane
Before McPherson J.A.
Pincus J.A.
Helman J.
[Wegrzyn v. C.U.B.]
BETWEEN:
JOSEF WEGRZYN
(Plaintiff) Appellant
AND:
CARLTON AND UNITED BREWERIES (QUEENSLAND) LIMITED
ACN 010 612 021
(Defendant) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 24 November 1998
- The appellant plaintiff, formerly an employee of the respondent, suffered injury in the course of that employment while engaged in cleaning a serrated mechanical knife. This occurred in December 1992 and the trial did not take place until nearly 5 years later. The primary judge held that the respondent was guilty of a breach of its duty of care to the appellant and that such breach was causative of the injury which the appellant suffered; however, the judge also expressed the view that the appellant had behaved negligently and apportioned liability 50% to each party.
- The appellant challenges the judge’s finding that he was guilty of contributory negligence and, as an alternative, says that there was no proper foundation for the judge’s conclusion that the parties were equally to blame. There is also an attack upon the judge’s assessment of damages, in a sum a little less than $200,000. As to that, the argument was that the primary judge assessed the appellant’s economic loss at much too low a figure.
Liability
- The case was one in which some difficulty in ascertaining precisely what happened to cause the appellant’s injury could have been expected, due not only to diminution of memory with the passage of time, but also perhaps to some language difficulty; the appellant migrated to this country from Poland about 1985 and it appears had little command of English when he came. To determine the appeal with respect to liability, it will be necessary to make some reference to the evidence; but, in my opinion, the argument placed before us disclosed no solid ground on which to doubt the correctness of the judge’s primary findings of fact; the appeal has to do, rather, with disputes about the conclusions his Honour drew from those primary findings.
- The appellant was injured while working on a machine whose function it was to encase small bottles of beer - "stubbies" - in plastic wrapping, in collections of six. The part of the machine which caused the injury consisted of a long cutting knife attached to a cylinder which rotated, causing the knife to cut pieces of plastic from a roll. The rotating knife presented an obvious danger and so access to the knife was restrained by a transparent plastic door. That door could be opened to gain access to the machine, so as to clear it in case a bottle broke, or when the plastic which the machine was cutting stuck to the knife. It was the appellant’s job to observe the functioning of this rotating cutting knife and to attend to such malfunctions as I have mentioned. To do this he had to open the perspex door; an air hose was available to enable debris to be cleaned out.
- To guard against the risk that persons such as the appellant might be injured if the cylinder rotated while they were attending to a break or other difficulty in the operation of the machine, matters were so arranged that when the door was open the machine was immobilised. However, that arrangement was able to be overridden by use of a key which was, imprudently it appears, kept close by. The real safeguard for the appellant was that, as the system of work was supposed to function, he would never have to attempt to clear a stoppage while the cylinder was in such a condition that it could rotate; that was a job for fitters whom he was supposed to call when occasion arose.
- What went wrong at the time of the injury was that a fitter was called, but did not arrive promptly; apparently because of a desire to minimise the length of any holdup in the operation, the appellant attempted himself to clear some plastic from the knife by means which involved momentary operation of a switch which caused the cylinder to rotate. That switch was called the "jog switch". What the judge found to be an accurate account was contained in a statement of the appellant, as follows-
"I stopped the machine, opened the door, cut the plastic, then took the key from the control panel and unlocked the jog switch. Taking hold of the plastic with one hand I slowly pressed the jog switch and began to remove the plastic from the knife. There was one small piece of plastic behind the knife. I took hold of it and touched the jog switch. As I did so the knife caught my hand".
It was the appellant’s left hand which was injured; there were cuts to the fingers which, according to the judge’s findings, caused substantial disability, a subject which is considered below.
- An important aspect of the argument for the appellant was that the safe system of work, under which unskilled operators such as the appellant would have no occasion to use the jog switch to clear plastic from the knife, did not in practice operate universally. The judge found that the "general instruction" given by the respondent to operators of the machine was that in circumstances of the present kind fitters were to be called by a paging system. They would, using the key I have mentioned, cause the cylinder to rotate. His Honour said:
"By depressing the jog switch momentarily it would be possible to cause the cylinder to rotate through only about 90_. Such a procedure might be followed in order to get the cutting blade into a position for easier removal of the offending plastic".
His Honour went on to find that the appellant had seen the fitters do this on numerous occasions and that the appellant might have done so himself. As to the safety of the system and in particular the key, his Honour found as follows:
"I am satisfied that there was a general rule in the interests of safety that the key which had to be used in order to override the cutout and safety switches should be kept with the fitters. But it is also clear that from time to time that rule was breached and the key was left on or near the control panel of the machine. The evidence suggests that particularly in hot, humid weather the plastic regularly jammed around the knife. On occasions when there were reasonably frequent blockages the probability is that the key was left on or near the control panel. That is in all probability what happened on the day in question".
It was found that on this occasion plastic jammed around the knife, the appellant called for the fitters as he was supposed to do, but they did not come "for some minutes". The judge found that the appellant then decided to take what he considered to be the necessary steps to clear the blockage and was injured as I have mentioned.
- I have already quoted the statement of the appellant, accepted by the judge, explaining how the injury was sustained. I see no reason to differ from his Honour’s view that that statement is accurate; the controversy however is whether the conclusion the judge drew from the findings made was correct.
- It is, as it seems to me, critical to the appellant’s prospects of success on the appeal that the judge made the following findings as to the key which enabled the jog switch to be used. His Honour said:
"The system was that the key should be kept by the fitters away from the machine so that only a qualified mechanic or fitter could override the stop buttons. Leaving the override key with the machine gave an experienced operator the opportunity of carrying out a task beyond his capability. On the whole of the evidence I am satisfied that the defendant knew that operators did clean out relatively simple jams and the probability is that from time to time, if the key was available, operators had used the override jog switch to assist in that process. That is what happened on this occasion".
In other words, the system which was theoretically in place was not always followed; the respondent knew this and, as I infer, did not prevent its occurrence.
- It is necessary to make reference to some passages in the evidence. The appellant gave evidence that if the machine he was attending stopped for more than a minute, then other machines in the sequence of operations would have to stop also. It is not clear that this is literally accurate, but there is no doubt that the plastic cutting machine was part of a sequence of operations whose ultimate output consisted in packages of bottled beer; nor is there any reason to doubt that the appellant’s purpose in attending to the difficulty with the machine himself, instead of letting operations cease until a fitter arrived, had to do with the respondent’s interests rather than his own; his purpose must have been to keep the production line going.
- We were referred to evidence in which the appellant attempted a detailed explanation of the precise way in which it happened that his hand was cut. It appears that the appellant had the impression that there might have been some malfunction of the jogging mechanism which caused the knife to over-rotate. That is of no present relevance; it was, on the judge’s finding, a mistake in the way in which the appellant attempted to free the knife which was the immediate cause of his injury, not any malfunction of the jogging mechanism. Then there was evidence from Mr Sayeed who had worked for the respondent doing the same job as that in the course of which the appellant’s injury was sustained; Mr Sayeed said that he himself had cut his fingers on the knife, but the circumstances in which this occurred were not explained.
- That what the appellant did, in having his hand near the knife while operating the jog switch, was dangerous is obvious enough. It will be noted that, in the statement accepted by the judge, the appellant explains that he took hold of a piece of plastic, presumably being one stuck in or on the knife, and touched the jog switch. There would have been no danger if the respondent had kept his left hand well away from the machine while the jog switch was operated; attempting the dangerous (as is particularly manifest in retrospect) procedure of trying to loosen the stuck plastic while operating the jog switch - a procedure which, as the primary judge emphasised, was done deliberately - was so hazardous that, in my opinion, the argument advanced that the appellant’s fault should be excused as mere momentary inattention cannot succeed. It is not as if the appellant was injured while engaged in a continually repeated operation in which any minor slip was likely to cause injury; although the appellant apparently felt he was under some pressure to get the machine going again quickly, he had time to think about precisely what he would do. I have considered the doctrine applied in cases of momentary inadvertence such as Polycarpou v. Australian Wine Industries Pty Ltd (1995) 36 N.S.W.L.R. 49, but do not regard them as governing here.
- Nevertheless, the notion that in the circumstances found by the learned judge, the employer should bear no more responsibility than the employee is, with respect, hard to accept. Once, as was found to have occurred, the respondent was aware that the key was kept close by the machine, so that it could be (and to the respondent’s knowledge, was) used by employees such as the appellant to work the jog switch in cleaning the machine out, it should have been evident to the respondent that there was a risk of injury. That is, it should have been evident that an unskilled operator attempting a task of the kind which caused the appellant’s injury would be liable to error, having, it appears, received no training for that task. When risk of such a kind eventuates, it is, in my opinion, almost inevitable that the respondent will be held principally to blame. I say "almost" because circumstances might be imagined in which some unexpectedly reckless action on the part of the operator could dictate another result.
- Here, as the judge emphasised in his reasons, what the appellant did was deliberate; he purposely operated the jog switch while his hand was holding the piece of plastic, with the idea of pulling it off as the machine partially rotated. No doubt he did this because he, perhaps mistakenly, thought it was the only way he could loosen the particular piece of plastic. But some such accident was, as it appears to me, "on the cards" once the respondent acquiesced, by taking no corrective action, in the practice that the key enabling operation of the jog switch was kept close by so that the unskilled operators, rather than the fitters, could use it.
- In the High Court, Mason CJ, Deane, Dawson and Toohey JJ. have remarked:
". . . the law has progressed by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed. That possibility is now recognized as being relevant to the standard of care owed by an employer to an employee and as well generally in situations in which a duty of care exists" (Bus v. Sydney County Council) (1989) 167 C.L.R. 78 at 90.
Their Honours quoted with approval a previous statement in that Court:
"[I]t is not an acceptable answer to assert that an employer has no control over an employee’s negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others . . . [i]n accordance with well settled principle the employer is bound to take care to avoid such a risk".
Such statements do not dictate the result in all cases and minds may differ as to the proper result of the present case. The critical factor, in my opinion, was in the present case the known use of the key by unskilled operators. That key’s function was to ensure that only a qualified fitter did the sort of clearance work which caused the appellant’s injury - because of the danger to the unskilled. What the appellant did, although dangerous and erroneous, could not be described as completely unexpected, nor as a surprising outcome of the unsafe system which was in operation. Nor, in my opinion, was the appellant’s action especially reprehensible; it was merely his attempt to keep his employer’s operations moving rather than hold them up.
- I note that a quite inexpensive system, whose effect was to make the occurrence of such an accident as is in issue practically impossible, was installed after the accident occurred. This is by no means decisive, but it illustrates that if the respondent had thought about the dangers inherent in the irregular practice which had developed it could easily have averted those dangers.
- Keeping in mind appellate courts’ reluctance to interfere in matters of apportionment, it is nevertheless impossible to agree that the respondent employer’s fault was no greater than that of the appellant employee and the equal apportionment of fault cannot stand.
- I would reassess the apportionment at 80% against the respondent.
Quantum
- The argument for the appellant on this issue was that, after strenuous attempts to obtain employment, after recovering from his injuries, the appellant failed to do so and that the judge had given damages at substantially too low a level by wrongly assessing the appellant’s earning capacity. There was as I have mentioned an injury to the left hand, but the physical consequences of that are not entirely clear. A specialist who saw the appellant about a year after the injury was sustained said that both the little and ring fingers of the left hand were tightly flexed and held into the appellant’s palm and that the middle finger was also tightly flexed, but the doctor was able to straighten it out. There was also, so far as the doctor could tell, sensitivity to touch in the little and ring fingers. At that stage, thinking the appellant had 100% loss of function of those two fingers and a minor thumb disability, the specialist assessed the "overall percentage disability to the hand" at 20%. Six months later, having seen the appellant again the doctor reported that he had "ended up with a hand which is not particularly useful for him". The doctor thought that the appellant "holds his hands (sic) flexed all the time and does not try to use his fingers. This would explain the progression that he is experiencing". He raised the estimated percentage disability of the left hand to 30%; the doctor also discussed the possibility that the flexion of the little and ring fingers was deliberate and said that he would not have expected this result to follow from the injury. It does not appear, however, that the doctor regarded the injury as a minor matter; he translated it to a 27% arm disability which, although the appellant is right handed, must be a matter of real significance for a middle-aged person, as the appellant is, lacking skills.
- There was evidence from psychiatrists that the appellant was not suffering from any major psychiatric illness. However, the reports which are in evidence suggest that his psychological state is poor. The judge held that there "are clearly many jobs which the appellant would be capable of performing". His Honour said in effect that he would be able to drive a taxi and that "his English is good enough for him to obtain employment in many fields". It was held that as a taxi driver he could earn an income comparable with that of the job he was doing when injured. His Honour also held that because the respondent’s brewery was in the process of relocating at the relevant time, the appellant would in any event have been put off by the respondent shortly after he was injured.
- The judge assessed past economic loss at $48,568 and future loss at $100,000. Counsel for the respondent argued that the allowance for future economic loss was over‑generous, being equivalent to a loss of $133 per week over 25 years. For the appellant, it was suggested that the evidence showed that prior to the accident the appellant had a good work record, that he could not return to his former employment, that the range of employments open to him was quite limited and that his earning capacity had been destroyed.
- Although the factors bearing upon assessment of economic loss are numerous the essential question is simply stated: to what extent was the appellant’s employability affected by this undoubtedly serious hand injury? It is true that more generous views than the primary judge took were open; although his Honour did not say so, it appears to me that he was unimpressed with the appellant’s efforts to re‑establish himself in the workforce. This is reflected in the fact that, as has been pointed out on behalf of the respondent, he has been treated by the judge as having been able to hold down a job for the greater part of the period between accident and trial.
- The facts are such that it is impossible to be dogmatic about the extent of economic loss; the judge’s opinion of it depended in part upon his Honour’s assessment of the appellant as a person, and of the degree of the appellant’s determination and, perhaps, of the effect of the pendency of the litigation upon his behaviour. I have been unable to reach a conclusion that the rather unfavourable view of the appellants’ case, as to economic loss, which the judge adopted has been shown to be erroneous. Looking at the matter more broadly, the assessment of a total sum just under $200,000 is not, on the findings the judge made, indefensible.
- There is also a cross-appeal, on the question of damages, to be considered. I have had the advantage of reading the reasons of Helman J. on this subject and agree with them.
Summary
- I would alter the assessment of responsibility against the respondent from 50% to 80% but leave the assessment of quantum unaltered.
- Deducting the sum repayable to the Workers’ Compensation Board, the result would be an increase in the amount of the award to $101,387.19.
- I would allow the appeal with costs, accordingly, and dismiss the cross-appeal, with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 8596 of 1997
Brisbane
Before McPherson J.A.
Pincus J.A.
Helman J.
[Wegrzyn v. C.U.B.]
BETWEEN:
JOSEF WEGRZYN
(Plaintiff) Appellant
AND:
CARLTON AND UNITED BREWERIES (QUEENSLAND) LIMITED ACN 010 612 021
(Defendant) Respondent
REASONS FOR JUDGMENT - HELMAN J.
Judgment delivered 24 November 1998
- I have had the advantage of reading the reasons for judgment prepared by Pincus J.A. I agree with what his Honour has written on the question of the appellant’s damages. On the matter of apportionment of responsibility for the damage suffered by the appellant, however, I respectfully disagree.
- An apportionment by a judge is not lightly reviewed: Podrebersek v. Australian Iron & Steel Pty Ltd (1985) 59 A.L.R. 529 at p. 532 per Gibbs C.J., Mason, Wilson, Brennan and Deane JJ. It is only in exceptional circumstances that it is right for an appellate court to interfere with a trial judge’s apportionment: Watt v. Bretag (1982) 56 A.L.J.R. 760 at p. 761 per Gibbs C.J., Mason and Brennan JJ. It follows that what is called for is a close examination of the process of reasoning which led the learned trial judge to arrive at the apportionment he did.
- The learned trial judge found that an account of the incident which gave rise to the action given by the appellant on 16 December 1992 - i.e., within a week of his being injured - and verified about a month later, on 11 January 1993, was true and accurate. Pincus J.A. has set out that account and so I shall not repeat it here. It had been alleged in the statement of claim that the appellant inadvertently activated the knife, but the learned trial judge was satisfied that the evidence established that it was a “deliberate and intentional” act on the part of the appellant to activate the knife. That conclusion was clearly open on the evidence. His Honour said it was a very dangerous thing for the appellant to have his hand near the knife at the time he activated the jog switch, and that in the circumstances it could not be said that what the appellant did was inadvertent or a misjudgment. His Honour added:
“It must have been obvious to the [appellant] that when overriding the safety cutout switch he had to act with extreme care. It was not even a matter of the [appellant] putting in his left hand at about the same time as he was releasing pressure on the jog switch. The account which I have accepted clearly indicates that his hand was in the vicinity of the knife when he deliberately activated the switch.
The cylinder probably turned through a greater arc than the [appellant] intended (or indeed kept revolving) but that was because of the length of time his right hand was in contact with the jog button, not because of any defect in the machine.
On the evidence this was the first incident of its kind with the machine.”
- His Honour rejected a submission made on behalf of the respondent that the appellant’s negligence was the sole cause of the incident. He concluded that while the appellant’s conduct was “extremely negligent” the respondent had been negligent in permitting the overriding key to be available to “a person such as the [appellant]”. His Honour was satisfied that the respondent knew that operators did clean out “relatively simple” jams and “the probability is that from time to time, if the key was available, operators had used the override jog switch to assist in that process”. That is what happened in the incident, his Honour found. It followed that the system of work was unsafe.
- After referring to the principles applicable to a determination regarding contributory negligence, his Honour said:
“As I have already found there were general instructions, of which the [appellant] was aware, that fitters should be summoned by means of the paging system to attend to blockages of the type which occurred on the day in question, and the override key should not be left on the control panel. I am satisfied that the [appellant] did in fact call for the fitters when the blockage occurred. Because there was some delay in them arriving he took advantage of the fact that the overriding key was on or near the control panel and decided to carry out the task himself. He did so in a way which was foreseeably very dangerous. The evidence does not establish that the [respondent] acquiesced in operators acting in the way in which the [appellant] did on this occasion; it was not a specific course of conduct endorsed by the employer.
It follows that the [appellant’s] negligence was as great as that of the [respondent] and in the circumstances I apportion negligence as to 50% against the [appellant] and 50% against the [respondent].”
- The main factors which led to the learned trial judge’s assessment of the apportionment of responsibility for the appellant’s injuries were then: the respondent’s conduct in permitting the unsafe practice of leaving the overriding key where an employee like the appellant could misuse it, and the appellant’s deliberate and intentional act in doing something “foreseeably very dangerous” contrary to instructions given by the respondent. While those were the main factors considered by his Honour, there were two other matters of some importance I think. His Honour found that the appellant was a very experienced operator of the machine, having worked on it for approximately six years. Then there was the fact that there had been no previous incident of the kind in question with the machine.
- Given those findings of fact and taking into account those factors I am not persuaded that it has been shown that the learned trial judge erred in attributing equal responsibility to the parties. Had the appellant’s action been merely inadvertent or the result of a miscalculation I could have agreed that that assessment might call for the intervention of this court, but since the appellant deliberately exposed himself to danger I cannot agree that his appeal should succeed on that issue.
- The learned trial judge’s assessment of the appellant’s damages included: $35,000.00 for pain and suffering and loss of amenities, $17,500.00 for the past and $17,500.00 for the future; and $148,568.00 for impairment of earning capacity, $48,568.00 for the past and $100,000.00 for the future.
- The appellant challenges as inadequate his Honour’s assessment of the damages for impairment of earning capacity and the respondent too, by its cross-appeal, challenges that assessment, and also challenges the assessment under the head of pain and suffering and loss of amenities. It was argued for the respondent that on the findings made by his Honour as to the appellant’s injuries there was no rational basis for an award for future impairment of earning capacity, and that an award under $20,000.00 would have been appropriate for pain and suffering and loss of amenities.
- It is convenient to deal first with the $35,000.00 assessed for pain and suffering and loss of amenities.
- The appellant was born in Poland on 27 March 1954. He worked in a brewery and as a coal miner and served two years in the Polish Army before leaving Poland for Yugoslavia and then emigrating to Australia in about 1985. He began work for the appellant in 1986. His dominant hand is his right.
- His Honour accepted the evidence of Dr John Morris, orthopaedic surgeon, and Dr John Chalk, psychiatrist, and concluded that the appellant had at most a thirty per cent. disability of his left hand - or, seen as a disability of his left upper limb, twenty-seven per cent. - which would probably be permanent. It was against that background, his Honour said, that damages for pain and suffering and loss of amenities should be calculated.
- Three reports by Dr Morris were before his Honour. They were dated 16 December 1993, 29 June 1994, and 6 August 1997 - the latter provided shortly before the trial. In addition, Dr Morris gave brief oral evidence which was taken over the telephone.
- Dr Morris’s earliest report recorded that the appellant had suffered cuts over the distal interphalangeal joints of the ring and little fingers, and a cut to the thenar eminence of the left hand. The little and ring fingers had contracted and the appellant had a total loss of function of the ring and little fingers.
- Dr Morris’s second report recorded that he found on examination that the thumb appeared normal, but that the middle, ring, and little fingers caused a great deal of pain if they were touched. The middle, ring, and little fingers could be moved away from the palm only 76 mm, 25 mm, and 12.7 mm respectively. The proximal interphalangeal joint of the middle finger was contracted to ninety degrees and the distal interphalangeal joint on that finger to thirty degrees. (It should be noted that the middle finger was not injured in the incident.) Both the ring and little fingers were “virtually unable to be straightened” and the appellant’s wrist was flexed but was “able to be straightened”. Dr Morris’s opinion and prognosis was as follows:
“Mr. Wegrzyn suffered injuries when he cut his ring and little fingers and base of the thumb. He is now suffering a continual contraction of the fingers of his hand. I would venture to think that he holds his hands flexed all the time and does not try to use his fingers. This would explain the progression that he is experiencing. The little finger and ring fingers have virtually 100% loss of function and the middle finger is not much use. The combination of the ankylosis of these fingers really gives him a 30% disability to his left hand, which translates to a 27% disability to his left upper extremity.”
- Dr Morris’s third report recorded no change in the appellant’s condition, and that the “main limiting factor” for work was the pain in his left hand and loss of movement.
- In the course of cross-examination on 19 August 1997, Dr Morris was asked about his statement “I would venture to think that he holds his hands flexed all the time and does not try to use his fingers” in the passage from his second report I have quoted. Dr Morris said he still held that belief, and agreed that that would be a “conscious holding of the hand in that position”. Dr Morris also agreed that “possibly” the appellant “could be quite easily doing that deliberately”. Dr Morris agreed that there was no “orthopaedic reason” for the appellant to hold his fingers as he did. Dr Morris agreed that he could not relate “the contractures ... with the initial injury”, adding that the worst that would have been expected was stiffening of the distal joints and not contractures; contractures of the metacarpophalangeal joints and the proximal interphalangeal joints would not have been expected. Dupuytren’s contracture is a malady in which there is contracture of the fingers, but Dr Morris said that the appellant was not suffering from it. The treatment for Dupuytren’s contracture is amputation. Dr Morris said amputation could make the use of the appellant’s hand easier, reducing his disability from twenty-seven to fifteen per cent.
- A report by Dr Chalk was before his Honour. It is dated 25 April 1997. Dr Chalk also gave oral evidence. After Dr Chalk interviewed the appellant for his report and reviewed the available records he concluded that the appellant had, following the incident, experienced symptoms of reactive depression, which under the circumstances would be quite normal. But, Dr Chalk said, those symptoms had not improved with the passage of time, as would have been expected. Dr Chalk summarized the appellant’s condition in this way:
“On my examination I did not think that he was suffering from a major psychiatric illness and there was no evidence of a major affective disorder or of a clinical anxiety illness. Similarly he was not suffering from any obsessive/compulsive symptoms or from post traumatic stress disorder.
I did not think on the basis of my examination or from the history obtained that he currently suffers from a psychiatric condition sufficient to render him incapable of work. I do not think on the basis of his psychiatric condition when I saw him that he was incapable of work.
There is no evidence from my history that he suffered a psychological condition prior to the accident of 1992.
Mr. Wegrzyn appears poorly motivated to return to work. He views himself as unemployable and would appear to be quite unrealistic about his left hand. Apparently amputation was advised previously though Mr. Wegrzyn would seem to have rejected this option. Instead his capacity has apparently slowly deteriorated and he increasingly focussed on his level of disability.”
- Dr Harvey Whiteford, another psychiatrist who gave evidence, said that in his opinion the appellant had at no time suffered from any psychiatric disorder. He agreed that there was no reason “from a psychiatric point of view” why the appellant could not work, nor was there any reason, again “from a psychiatric point of view”, for the appellant to hold the fingers of his left hand in a permanent contracture.
- On the whole of the evidence his Honour found that the appellant was not suffering from any major psychiatric illness and further that there was no physical or psychological reason for his left hand to be contracted as it was. Generally, his Honour said, he accepted Dr Morris’s opinion as to the disability in the appellant’s left hand. It should be noted that his Honour, having accepted Dr Morris’s opinion as to the appellant’s disability, expressed his conclusion about it in somewhat more guarded language than Dr Morris had, as at most a thirty per cent. disability of the left hand. Dr Morris did not mention that qualification. The discrepancy is explicable because his Honour’s attention was necessarily focussed on the disability caused by the incident.
- On behalf of the respondent it was argued that his Honour’s assessment of $35,000.00 for pain and suffering and loss of amenities was excessively favourable to the appellant. The respondent relied first on his Honour’s finding that there was no physical or psychological reason for the “continual contraction” of the fingers observed by Dr Morris. Reliance was also placed on his Honour’s accepting Dr Morris’s evidence which had included the doctor’s agreeing that possibly the appellant could quite easily be contracting his fingers deliberately. I am not persuaded that his Honour has been shown to have been unmindful of those parts of Dr Morris’s evidence. On the contrary his Honour’s conclusion that the appellant’s disability of his left hand was at most thirty per cent. points to his Honour’s taking those matters into account. It seems clear to me, however, that while his Honour took into account some possibly deliberate exaggeration of the effects of the injuries, he nonetheless accepted, as on the evidence he was entitled to do, that the injuries were serious. On behalf of the respondent it was contended that, properly understood, the evidence accepted by his Honour revealed the disability of the left hand to have been minor. But giving full weight to the evidence which suggests the possibility of deliberate exaggeration, one is still left with evidence of substantial permanent pain and disablement. In the circumstances in my opinion an award of $35,000.00, although arguably at the top end of the relevant range, cannot be regarded as outside it.
- On the assessment of the appellant’s damages for impairment of earning capacity I agree with Pincus J.A.’s conclusion, but I wish to mention one further matter. The learned trial judge arrived at $48,568.00 for the past by allowing for loss of earning capacity for two years at the rate of the appellant’s earnings at the date of the incident, $467.00 per week after the deduction of income tax. For the future his Honour allowed for a remaining working life to the age of sixty-five years. Treating that period as twenty-five years, his Honour decided on $100,000.00, which, when the five per cent. table is applied, comes to a weekly loss of $133.00, to the nearest dollar. Since, however, the appellant was nearly forty-three and a half years old when judgment was given on 28 August 1997, his remaining working life would then have been a little more than twenty-one and a half years and not twenty-five years. His Honour’s assessment of damages for future impairment of earning capacity was, it seems clear, based on the twenty-five years following the two years allowed for in the $48,568.00. As no argument was advanced on behalf of the respondent challenging that method of assessment I shall take the matter no further.
- I should then dismiss both appeal and cross-appeal with costs.