Whittaker v Farnsway Mining Constructions Pty Ltd
[2004] QCA 495
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- Whittaker v Farnsway Mining Constructions Pty Ltd[2004] QCA 495
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Whittaker v Farnsway Mining Constructions Pty Ltd[2004] QCA 495
Whittaker v Farnsway Mining Constructions Pty Ltd[2004] QCA 495
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Personal Injury |
ORIGINATING COURT: | |
DELIVERED ON: | 23 December 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 October 2004 |
JUDGES: | McMurdo P and Jones and Chesterman JJ Separate reasons for judgment of each member of the Court, McMurdo P and Jones J concurring as to the order made, Chesterman J dissenting in part |
ORDER: | Appeal dismissed with costs |
CATCHWORDS: | TORTS – NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – respondent injured ankle in accident at work – had injured ankle before at different workplace – descended set of stairs and stepped onto grate covering trench – precise nature of unevenness of surface of grate could not be established – whether learned trial judge ought not to have been satisfied that there was any defect in the grate – whether learned trial judge could have found on the evidence that the damage was caused by the later injury – whether learned trial judge was correct to hold that appellant's negligence caused respondent's injury TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – respondent was jumbo operator at a mine – where earned much more in that position than previously had earned –whether learned trial judge allowed too much for future economic loss – where respondent had received significant payments from interstate statutory insurer for previous ankle injury – where result of learned trial judge's finding is that statutory insurer was not liable to pay those damages – whether payments made by statutory insurer should be deducted from damages awarded against appellant Work Health Act 1986 (NT), s 176 Blundell v Musgrave (1956) 96 CLR 73, considered Edwards v Noble (1971) 125 CLR 296, cited Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, cited Chappel v Hart (1998) 195 CLR 232, considered Devries v Australian National Railways Commission (1993) 177 CLR 472, cited Gamser v The Nominal Defendant (1977) 136 CLR 145, cited Griffiths v Kerkemeyer (1977) 139 CLR 161, considered Karanfilov v Inghams Enterprises Pty Ltd [2003] QCA 242; [2004] 2 Qd R 139, cited Manser v Spry (1994) 181 CLR 428, distinguished National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, cited Smith v Day [1992] 1 Qd R 233, cited Tyrrell v Tyrrell (1981) 25 SASR 73, cited |
COUNSEL: | J A Griffin QC, with C S Harding, for the appellant S C Williams QC, with M J Burns, for the respondent |
SOLICITORS: | O'Maras Lawyers for the appellant Paul Everingham & Co for the respondent |
[1] McMURDO P: The facts and issues are set out in the reasons for judgment of Jones J. I am in general agreement with those reasons and wish only to add these brief additional observations.
[2] Mr Whittaker was unsure what caused him to fall in the course of his work duties at the bottom of the appellant's stairs at 2 am on 27 October 1997. As a result of the fall, he severely injured his left ankle. Despite Mr Whittaker's uncertainty as to the cause of his fall, there was ample objective evidence of an uneven surface at the bottom of the stairs where a mesh grate covered a ditch; that these stairs were used by workers like the respondent at night; and that Mr Whittaker fell as he claimed at the bottom of these stairs injuring his ankle. The learned primary judge was entitled to infer from these facts that the uneven surface at the bottom of the stairs constituted a breach of the appellant's duty to its employee, Mr Whittaker, and was the cause of his injuries. Despite contrary medical opinions, the evidence of Dr Sampson and the evidence in cross-examination from Dr Morgan were sufficient to support his Honour's conclusion that Mr Whittaker's present injuries resulted from this incident rather than an earlier incident in which he injured the same ankle in January 1997 at the McArthur River Mine in the Northern Territory.
[3] In attacking the primary judge's assessment of damages for economic loss, the appellant emphasises that before Mr Whittaker commenced his mining career his average earnings were about $350 nett per week; the allowance of $500 per week for economic loss was excessive. Mr Whittaker was in his late 20s when he became a miner. He was 30 years old at the time of the Queensland accident in October 1997. His Honour was entitled to conclude that Mr Whittaker's greater maturity and his newly acquired skills, experience and improved financial position from working as a miner, and more recently as a jumbo operator and team leader, would have very considerably improved his income earning capacity by the time of the accident.
[4] As Jones J has indicated, the learned primary judge made a slight miscalculation as to the length of the period over which interest for past economic loss should be paid. The amount involved has no substantial effect on the total amount of the judgment sum and does not warrant this Court's interference: Elford v FAI General Insurance Co Ltd.[1]
[5] The Territory Insurance Office ("TIO") has indicated an intention to seek restitution from Mr Whittaker of the amount it paid to him of at least $367,776.52 for loss of wages and special damages of $40,033.54 after the Queensland accident and for which the appellant has now been found liable. TIO claims it paid this amount under a mistaken belief that it was a loss to Mr Whittaker resulting from the earlier Northern Territory injury for which TIO had accepted responsibility and that, as a result, Mr Whittaker has been unjustly enriched. I agree with Jones J's reasons for rejecting the appellant's contentions that those benefits paid by TIO to Mr Whittaker, which TIO now wishes to recoup, should be deducted from the judgment sum.
[6] Chesterman J's conclusion that the appellant was not liable for the amount of the special damages of $40,033.54 paid by TIO has some initial appeal because Mr Whittaker has not himself paid this amount; it has been paid by TIO and now he has received a damages award in respect of an expense he has never had to meet. Mr Whittaker is entitled to damages to place him, as far as a money amount can, in the position he would have been in but for the appellant's negligence. At present, TIO has indicated it will, if necessary, bring proceedings to recoup this amount. If TIO is successful in any such action, or if Mr Whittaker agrees to repay TIO for example, to avoid the risk of an adverse costs order, and the amount is not included in this damages award, the appellant will have a windfall; it will not then have adequately compensated Mr Whittaker for the damages which he has been found to suffer arising out of the appellant's negligence. The learned primary judge was entitled to include in the award ordered against the appellant Mr Whittaker's special damages of $40,033.54 paid by TIO.
[7] I am not persuaded that there should be a stay of the judgment, or that part of it relating to TIO's potential claim. Mr Whittaker has been successful in his action; the appellant has been unsuccessful in this appeal; Mr Whittaker is entitled to his judgment sum. It seems that his success in this case means that he may have been doubly compensated to a considerable extent. TIO has indicated it will attempt to recoup its payments to Mr Whittaker for those losses for which the appellant has now been found liable. It is a matter for TIO whether and how it pursues any such claim against Mr Whittaker and a matter for Mr Whittaker whether he voluntarily repays TIO for any payments which have resulted in his double compensation.
[8] I agree with Jones J that the appeal should be dismissed with costs.
[9] JONES J: On 27 October 1997 the appellant was employed by the respondent as an underground miner at its Pajingo Mine at Charters Towers. At 2.00 am on that day the respondent sustained an injury to his left ankle when he fell on a grate covering a small temporary excavation at the foot of a set of stairs near to the crib room. The appellant was found liable to pay damages and the respondent was awarded $828,058.96.
[10] The respondent had previously injured his left ankle in an earlier incident on 11 January 1997 when he fell in the course of employment at the McArthur River Mine in the Northern Territory.
[11] The appellant contends that the learned trial judge erred in certain findings on the issues of liability and quantum. Dealing firstly with liability, the error is said to arise in two ways:-
(i) The learned trial judge ought not to have been satisfied that there was any defect in the grate which occasioned the respondent’s injury (grounds 1-4); and
(ii) The learned trial judge ought to have attributed the respondent’s present disability and losses to the incident on 11 January 1997 (grounds 5-10).
Background facts
[12] The respondent was working on a night shift and was about to resume work after having a meal break in the crib room. He was descending a set of stairs at the bottom of which there was a newly dug 450 mm wide trench for the installation of a drain. The trench was covered by walkway mesh. When the respondent stepped onto the mesh his ankle rolled over and he fell to the ground. He described hearing or feeling “a click” in his ankle. He could not get treatment because the first aid section was not open until 7.00 am so he applied an ice pack until the end of the shift.
[13] The grate had been thrown across the trench and was resting on soil. After his fall the respondent said he glanced around and thought he saw a small section missing from the edge of the grate.
[14] By his original Statement of Claim the respondent alleged that the steel grate “was resting on the soil of the sides of the ditch and did not completely cover the ditch”[2]. Following an amendment to the appellant’s defence, the respondent pleaded a further fact namely, “the said grate was raised approximately 20mm above the surrounding soil on which it stood”.[3] The allegation as to causation was pleaded as:-
“7.As the plaintiff stepped near the ditch, he tripped and/or slipped over the hole in the grate and his ankle inverted, or, alternatively, that occurred as a result of the unevenness and height difference of the grate and the surrounding soil and thereby sustained personal injuries, loss and damage.”
[15] Thus, proof of the respondent’s case depended upon the limited propositions that the surface of the mesh grate presented an uneven walking surface – whether by reason of having a missing part or by its being raised above the surrounding soil – and this fact caused the respondent to twist his ankle and to fall.
[16] The cause of the fall and the mechanics of the fall itself were not able to be established with precision. The respondent gave evidence that he did not feel the grate move, that he did not trip over a raised edge of the grate nor did he establish there was any missing part of the grate. On these bases the appellant submitted that the respondent failed to establish the existence of any defect which caused his injury.
[17] On the day following the incident the respondent reported the matter to his superiors. The incident was investigated and remedial action taken. This report (ex 4/10)[4] was the only contemporaneous record of the incident. It was a document the compilation of which required the contribution of three employees of the appellant other than the respondent. They were his supervisor, a departmental head and the safety officer. The substance of that report confirmed the plaintiff’s evidence as to the nature of the incident describing the accident in terms “stepped onto an even surface, twisted ankle”[5] and went on to describe the hazard as “bottom step uneven – needs to be replaced or removed”.
[18] It is clear from the respondent’s evidence and from the inconsistencies in the remarks he later made to medical examiners that he had a poor recollection and understanding of what caused him to fall. These matters were extensively canvassed before the learned trial judge. But the fact remains that the contemporaneous accident report contained evidence of persons whose responsibility it was to investigate the cause of the incident and to remedy any defect found. His Honour was well entitled to accept, as he did, the contents of that report and to note that none of the persons who contributed to the report (other than the respondent) were called to give evidence.[6] His Honour also found support for his findings from the nature of the injury which requires some further explanation.
Previous injury
[19] The earlier injury occurred on 11 January 1997 when the respondent was working at the McArthur River Mine in the Northern Territory. As he was alighting from the bumper bar of a large dump truck, he missed a foothold and “dropped down, landed straight-legged on the ground and rolled [his] ankle under”.[7] His ankle became swollen and he was taken to Mount Isa Hospital where an X-ray was taken which showed no abnormality. He was initially immobilised in a back-slab. The respondent saw his general practitioner, Dr Jamieson, who arranged for a plain X-ray to be taken but otherwise the injury was treated with physiotherapy and rest.
[20] The respondent was referred to Dr Sampson, orthopaedic surgeon, who examined him on 23 January 1997 and diagnosed him as suffering from a moderately significant left ankle sprain. One of the clinical signs he elicited was that there was “no particular pain on stressing the lateral ligaments”.[8] The physiotherapist to whom he was referred, Mrs Kerr, described his status in February 1997 as “range of movement normal, strength was good and balance good”.[9]
[21] The respondent was off work for eight weeks and thereafter returned to ordinary duties. He described that the injury remained sore but improved over time. By October 1997 he was experiencing “a little niggle every now and then” but was probably “95 to 98 per cent good”.[10]
[22] The respondent received weekly compensation and other benefits from the Territory Insurance Office (TIO) in respect of this injury pursuant to the provisions of the Work Health Act (NT). These payments amounted to approximately $7,000.
[23] The respondent’s evidence about his recovery referred to above is somewhat at odds with the terms of a letter he wrote to TIO on 14 April 1998 wherein he stated that he had “no relief from the pain and discomfort…[the injury] is progressively getting worse”.[11] That letter made no reference to the October 1997 incident other than by way of reference to its being “aggravated”. The terms of this letter and the inferences to be drawn from them were matters of considerable debate at trial. It is to be noted that the letter was written before the nature of his injury was accurately diagnosed.
[24] He returned to his home and again saw his general practitioner Dr Jamieson. In April 1998, a CT scan was undertaken which, for the first time, revealed an osteochondral fracture in the ankle and also a rupture of the lateral ligament. The location of the fracture was such that it was not detectable on plain X-rays. The fracture and the rupture of the lateral ligament would have occurred at the same time. The rupture was also identified in physical examination and confirmed during later surgery.
[25] Because the fracture remained un-united, its age could not be determined. Hence the issue as to which incident caused the injury. As between the experts there were some differing views on this point but there was common ground that upon stressing the lateral ligament, if it were ruptured, there would be unmistakable signs of instability.
Nature of the injury
[26] Between the two incidents the respondent was examined by only one orthopaedic surgeon, Dr Sampson, whose findings have been referred to above. After the second incident he was referred by his general practitioner to Dr Lewis, orthopaedic surgeon, who examined him on only one occasion, 30 April 1998. He was later treated by Dr Todd, orthopaedic surgeon, who examined him on 17 September 1998 and operated on his ankle on 18 November 1998. As there was no improvement in his mobility, the respondent underwent a subtalar fusion operation under the hand of Dr Malisano in May 1999 and a later procedure for the removal of screws. For the purpose of reporting to insurers and legal representatives the respondent has been examined by five consulting orthopaedic surgeons in addition to the four who actually treated him. They are Drs King, Pentis, Jones, Morgan and Wearne.
[27] The appellant complains that the clinical findings of Dr Sampson that there was no pain or instability in the lateral ligaments was not put to each of the orthopaedists called to give evidence. But it was put to Drs Wearne and Jones and, of course, it was open to the appellant to recall the earlier witnesses. Dr Wearne made the distinction between the effects of the simple sprain and a rupture of the lateral ligament[12] and he was then asked –
“All right. Now, Doctor, if a competent orthopaedic surgeon undertakes an examination of an ankle and declares that the – there was no instability of the lateral ligament, one would accept that it had not ruptured? – Yes.
All right. The forces necessary to rupture the ligament are, I take it, fairly significant? – Yes
Could they be imposed upon an ankle by a person walking down stairs and imposing weight as one takes a step onto a lower stair, imposing weight on the ankle and it inverts? – If you landed, you know, on the surface of the – on the flat surface of a step, I wouldn’t expect it to rupture there, but if you – if he inadvertently stepped on the edge of a step and rolled over ---
Yes? – with his full weight on it, then that could rupture a ligament.
All right, and associated with that type of an injury, one could suffer an osteochondral fracture? -- Yes, if it was violent enough. If it – if his ankle rolled right over and he fell with his weight on it, yes, that would be possible.”[13]
Dr Jones said that if one accepts the finding made by Dr Sampson some three weeks after the first incident, it would preclude a conclusion that the ligament was ruptured. The fracture and the ligament injury occurred at the same time.[14] This would have produced significant symptoms.[15] Both doctors adhered to the opinions expressed in their reports to the effect that the first injury was more significant but those opinions were formed on the basis of less than complete information.
[28] The substance of Dr Sampson’s findings as well as the respondent’s work history was put to Dr Morgan who then expressed the view that the fracture did not occur as a consequence of the first incident.[16]
[29] The appellant contends that in the resolution of the issue as to the nature of the injury sustained in October 1997, the learned trial judge accorded insufficient weight to the opinions of Drs King, Morgan and Todd and to the evidence about the consequences of the respective injuries. These consequences included the length of time off work, the level of treatment undertaken and the duties performed after the return to work.
[30] There was a considerable body of evidence also about the respondent’s physical capacity for work after the first incident as compared with the period following the second incident. Though he had eight weeks off work following the first incident he was thereafter able to return to the heavy duties of underground mining which involved working on uneven ground. After the second incident he experienced difficulty in attempting the work and sought treatment. After the seriousness of the injury was ascertained he did not return to underground work.
[31] The evidence, adduced over a four day trial, allowed the learned trial judge the opportunity to assess the facts on which those expert opinions were based and to weigh all the evidence including not only the statements made by the respondent, but also the history of continuing symptoms and his work history. His Honour’s findings as to the examination of Dr Sampson and the physiotherapist and the respondent’s own belief were indicated by the evidence which was largely unchallenged.
[32] The support that the learned trial judge gained from the medical evidence on the issue of liability was that the injury, as appears from the opinion of Dr Wearne referred to above, was in the nature of a rolling over on the ankle with his full weight on it on an uneven surface. It forms part of the body of evidence which shows consistency with the history given in the accident report which his Honour appropriately took into account.
[33] On appeal, the appellant drew attention to the inconsistencies between the respondent’s evidence, his various statements to medical practitioners and the respondent’s written comments to TIO in his letter of 14 April 1998. Many of the statements were made before the true nature of the injury was known but these were all matters canvassed in depth before the learned trial judge. His Honour gave reasons for accepting the respondent’s evidence and his explanation of how the letter came to be written. The respondent’s account is not glaringly improbable and was supported by other evidence. His Honour was entitled to act upon it: Devries v Australian National Railways Commission.[17] The finding that the subject injury occurred in September 1997 was supported by the broad sweep of the medical opinion.
Causation
[34] Whilst the precise nature of the unevenness of the surface of the grate could not be established, the learned trial judge was entitled on the evidence, to find as a matter of probability that there was unevenness. This fact emerges from the accident report and the appellant produced no evidence to the contrary and did not challenge the statements of its own officers made in the report. The learned trial judge found that the “risk seems to have been obvious to those who prepared the accident report”[18] and the absence of other evidence to explain the fall inferred there was a causal connection.
[35] The appellant contends that his Honour’s reliance upon remarks in Chappel v Hart[19] was misplaced because that case was one of medical negligence arising from a failure to warn. However the passage to which his Honour had regard is of general application. The evidence as accepted showed a distinct breach of the appellant’s duty to provide a safe place of work. The respondent’s fall as “a matter of commonsense” was related to that breach. In the absence of any evidence to the contrary his Honour was correct in adopting the approach he took. In Chappel, Kirby J said:-
“Causation is essentially a question of fact (145). It is to be resolved as a matter of commonsense (146). This means that there is usually a large element of intuition in deciding such questions which may be insusceptible to detailed and analytical justification. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn (147) “it is all ultimately a matter of common sense” and “[i]n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula”. Similarly, in Alphacell Ltd v Woodward (148), Lord Salmon observed that causation is “essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory”.
[36] Ultimately, the argument of the appellant on the two issues comes down to a complaint that the learned trial judge failed to give sufficient weight to evidence which the appellant suggests supported its submissions at trial. In my view that argument is not made out. Not only did the learned trial judge canvass the matters in dispute, the findings which he made were well supported on the evidence and that being the case, it does not fall to an appellate court to apply its own assessment to evidence of witnesses which it has not had the advantage of hearing.[20] In the end result I am not persuaded that the appellant has demonstrated any error in principle in the reasoning process followed by his Honour in coming to the conclusions on which the decision is based.
Quantum
[37] The appellant also appeals against the allowances made for economic loss, for future home services, for the period over which interest for past economic loss should be awarded and whether, by reason of his having received benefits from TIO, the plaintiff is entitled to allowances for past economic loss and special damages.
Economic Loss
[38] The respondent ceased employment with the appellant in December 1998 because of the effects of his injuries. Prior to the incident, he had worked as a jumbo operator and, as such, was the leader of the team responsible for drilling the rock face at the underground mine. This is heavy work and required an ability to work on large machinery and upon uneven ground. The respondent’s attempts to rehabilitate and re-train himself for other work had not been successful as at the date of the trial. The learned trial judge found that the injury limits the respondent’s mobility, agility and tolerance for weight bearing.[21] He is unable to sustain long working hours. His Honour assessed that his condition had stabilised by mid-2000 and that he was thereafter fit for part-time work. He assessed the respondent’s residual earning capacity at $150 per week. Prior to working as a miner the respondent largely engaged in unskilled work. He had no clerical experience or capacity to be trained in that field.
[39] The appellant complains that the assessment of the residual earning capacity was too low because the respondent had agreed in evidence that he could do the work of a mail sorter. Even if such a position was available on a part-time basis there is no independent evidence that the respondent was now suitable for that position or that he would be successful in finding such a position in the market place. His Honour’s assessment of residual earning capacity of $150 per week is well within the range appropriate to the respondent given his background and present disabilities.
[40] The respondent’s earnings as a jumbo operator at an underground mine at the time of his injury was in excess of $1,000 per week net. By the time of the trial the range of income in such employment was between $90,000-$130,000 gross. The allowance of $500 per week loss in that context could not be said to be excessive. The respondent had given evidence of an intention to continue in that position for 10-15 years beyond the date of the incident. The learned trial judge chose the mid point in that range – year 2010 – as the basis for his calculation.
[41] The appellant argues that the allowance of $500 economic loss for the post-mining period was also too high pointing to the fact that before the respondent embarked upon a mining career in 1996 his average earnings were in the region of $350 per week net. This argument however overlooks the fact that the respondent had gained, and would continue to gain, various skills whilst engaged in underground mining. Those skills would have better equipped him for employment in the post-mining period. Further to that, he would over time have improved his financial position which would have given him better opportunity to earn income in that later period.
[42] Having used these bases for his calculation, his Honour applied a discount of 15 per cent on the whole of the allowance.
[43] The appellant invites this court to make a different assessment of the quantum of the allowance without identifying any specific error in his Honour’s approach or in his reliance upon the evidence to which he has had regard. In my view the allowance is well within the appropriate range. It is certainly not “wholly disproportionate to the circumstances” such as to warrant interference from this court: Gamser v The Nominal Defendant.[22] I am not persuaded that there has been any error in this assessment.
Interest on past economic loss
[44] The learned trial judge allowed interest on past economic loss over a period of 6.5 years. The appellant argues that the appropriate period should have been 5.5 years between the date of cessation of employment in December 1998 and the trial in May 2004.
[45] On behalf of the respondent it was argued that economic loss commenced in April 1998 when the respondent was assigned to office duties on a reduced wage. It is the fact that whilst the respondent continued working in the mine office between April – December 1998 he received from TIO the differential between his wage and what he would have earned had he continued as a jumbo operator. After ceasing work he was reimbursed by TIO for the full loss of his income.
[46] The period of the calculation of interest should now take into account the fact that the allowance will not be paid before the disposition of this appeal. The relevant period therefore dates from April 1998 to now, which is closer to the 6.5 years that his Honour applied. The amount involved, in relative terms, is quite small and does not require any intervention by this Court.
Deductibility of benefits from TIO
[47] The major submission on the question of quantum relates to the fact that the respondent has been reimbursed over this relevant period by TIO for his economic loss and has had paid on his behalf various expenses which the respondent has claimed as special damages. The TIO made such payments on the basis that loss was occasioned by the injury sustained in January 1997. The deductibility of these payments was the subject of further argument after the trial. The learned trial judge delivered judgment on this issue on 1 October 2004 finding that the subject injury was not the same injury as that occurring in January 1997 and nor was it an “aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury or disease” for the purpose of s 3(1) of the Work Health Act (NT). The availability of a charge upon these damages pursuant to s 176(2) of the Act depends upon their being awarded “in respect of the same injury”. Consequently, the learned trial judge determined that those damages related to a different injury and concluded that payments made by TIO in respect of the January 1997 incident should not be taken into account.
[48] After the January 1997 incident the respondent was entitled to, and did receive, payments in the period before the second incident of approximately $7,000. Following the September 1997 incident the respondent, who initially believed that the second incident was an aggravation of the earlier injury, sought a re-opening of his claim. He thereafter received further payments in respect of that first injury, which payments were continuing up to the date of trial. The amount of such payments are identified in the affidavit of Leonora Palfy sworn on 18 February 2004[23] as weekly benefits of approximately $320.00, and treatment expenses of $40,033.54. The payments were made by TIO upon its belief that the entitlement flowed from the first injury, a belief which is clearly mistaken if his Honour’s findings are accepted.
[49] The TIO has indicated an intention to seek restitution of the amount it has paid on the basis of its entitlement to a charge under the Work Health Act or alternatively on the basis that the payments were made under a mistake and that the respondent has been unjustly enriched thereby. The TIO’s intention to make this claim was expressed in a letter from its solicitors addressed to the appellant’s solicitors and dated 27 July 2004. One passage in the letter reads:-
“Finally in this context, in case our client is found to have no right of recovery or charge pursuant to s 176 of the Work Health Act, it intends to commence proceedings for contribution and recoupment against the worker and your client in the Supreme Court of the Northern Territory. The basis of those proceedings is that the worker has been unjustly enriched by receipt of damages and compensation in respect of the same disability or, in the alternative, that your client has been unjustly enriched at the expense of our client insofar as the latter has borne sole or primary responsibility for the financial consequences of the worker’s past incapacity after October 1997 in circumstances where the former had a co-ordinate liability.”[24]
[50] For the reasons mentioned above the TIO has no basis for claiming a charge pursuant to s 176 of the Act. Nor does it seem to me that TIO can establish any basis for a claim against the appellant for restitution since the appellant has not received any benefit from TIO. These matters were argued before the learned trial judge who found:-
“On the findings I have made there is very good reason to characterise the payments made by the TIO since the second accident on 27 October 1997 as mistaken. Mr Whittaker should have been paid workers’ compensation and damages under Queensland law rather than compensation under the Act. Nevertheless, Mr Griffin QC for the defendant submits that the payments made by the TIO should be taken into account in reduction of the amounts otherwise assessable as damages for past economic loss and interest on that loss. He bases his argument on case such as Manser v Spry (1994) 181 CLR 428 where the High Court took the view that compensation payable under the Workers Rehabilitation and Compensation Act 1986 (SA) should be offset against the damages assessable against another tortfeasor liable at common law for the “same trauma” on the basis that the Act there was not designed to confer benefits to be added to the damages to which the worker might otherwise be entitled at common law. See also Harris v Commercial Minerals Ltd (1996) 186 CLR 1, 17 and Redding v Lee (1982) 151 CLR 117, 122-125.
Those cases deal with the need to distinguish between situations where the legislature intended that the plaintiff should enjoy the benefits supplied in addition to or in reduction of the damages he might recover from the defendant. There was no doubt about the plaintiff’s entitlement to the statutory benefits. That is not the situation here. Here the question is whether the Northern Territory legislature should be taken to have intended that Mr Whittaker should enjoy any benefits consequent on the injury he suffered in the second accident. Properly characterised those payments may well have been mistaken and are certainly the subject of threatened proceedings for their recoupment. I fail to see how such payments can be taken into account for the benefit of the defendant. Rather they should be ignored because of the plaintiff’s potential obligation to repay the TIO; see Luntz, Assessment of Damages for Personal Injury and Death (4th ed)., 2002) at para. [8.1.5] and David Securities v Commonwealth Bank of Australia (1992) 175 CLR 353. For that reason I will not reduce the plaintiff’s assessed damages for past economic loss and interest on that component of his damages as Mr Griffin QC submitted I should. I have not reduced the component for interest because, if Mr Whittaker is obliged to repay at least some of the payments made to him by TIO, it is likely that he would be obliged to pay interest on those sums as well.”
[51] Before this Court the appellant argues that with the respondent having received payments from TIO for loss of wages and for those special damages the allowance of past economic loss and the special damages in the judgment results in the respondent receiving a double benefit. The appellant relies on the basic principle that the respondent should not be better off financially if he had not been injured and again relies upon Manser v Spry. The learned trial judge distinguished Manser v Spry which discussed the payment of benefits “for the same trauma” and in doing so he was plainly correct.
[52] The benefit the respondent received from TIO in respect of the loss occasioned by the subject injury may be only temporary if TIO successfully pursues its intended claim. Whether this happens or not, the benefit should not be characterised to be of a kind intended to relieve the present tortfeasor of its liability. In National Insurance Co of New Zealand Ltd v Espagne[25] Dixon CJ identified some payments as having a distinguishing characteristic as being conferred on a claimant:-
“…not only independently of the existence in him of a right of redress against others but so that they might be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him. This is readily seen in the case of benevolence.”[26]
Here, the benefits received from TIO though paid by a mistake and not benevolently, must yet be characterised as being paid independently of his right to claim against the tortfeasor causing a different injury. The fact that the respondent is at risk of having to surrender the benefit only reinforces this characterisation.
[53] By its submission the appellant, in effect, seeks to avoid its obligation to pay damages for the injury for which it is responsible on the grounds that a stranger has mistakenly paid monies in respect of part of the loss. If TIO were to succeed in its intended claim against the respondent, then unless he received equivalent damages he would be disadvantaged to the full extent of that claim - $367,776.52 for loss of earnings and $40,033.54 for medical and related expenses. Although different compensatory principles apply to these discrete allowances for the purpose of assessing damages, there is no basis for distinguishing between them in the peculiar circumstances here where both allowances are likely to have to be repaid.
[54] Plainly, it is not possible for this court to assess what course of action TIO might adopt. It clearly has no entitlement to any statutory charge on the findings made by the learned trial judge. It would be a matter entirely for TIO to determine whether it pursues the respondent in a claim for unjust enrichment but that would mean that there is no basis for disturbing the findings made by the learned trial judge on this issue.
Allowance for future services
[55] The appellant argued that the allowance of $10,000 for future home services should not, by virtue of s 315 of WorkCover Act 1996, have been awarded. It argues that the respondent had in the past not paid for such services even though he had the financial capacity to do so and therefore was unlikely to pay for such services in the future.
[56] Firstly, it does not follow from those circumstances that household services will not be paid for in the future. Secondly, in his evidence the respondent said that it did not feel right to ask friends to provide such services. For that reason if he could not do the work himself he would pay someone to do it.[27] In Karanfilov v Inghams Enterprises Pty Ltd[28] the Court of Appeal considered the scope of the services contemplated by s 315 and concluded that the term embraced the wide scope of services that might be provided on a commercial basis.[29] Given the extent of the respondent’s disabilities and the limitations on what he could do for himself and given his attitude about seeking help it seems highly probable that he would in the future pay for services and it seems to me therefore that the allowance made by his Honour was entirely appropriate.
[57] I am not persuaded that any error has been shown in the assessment of quantum of damages.
[58] In my view the appeal should be dismissed with costs.
[59] CHESTERMAN J: The facts relevant to the appeal are set out in the reasons for judgment of Jones J. I agree with his Honour that the appeal against the findings of the trial judge that it was the appellant’s negligence which caused the respondent’s disabling injury should be dismissed. With two exceptions I also agree with his Honour’s conclusion that the appellant’s challenge to the assessment of damages should fail. The two exceptions concern the allowance of $40,033.54 as special damages and the length of time for which interest should be allowed on past economic loss. This amount is very small and would not by itself justify interfering with the award. If, however, a larger adjustment is called for then it is appropriate to make this one also.
[60] The point about the special damages arises in this way. The respondent pursued, contemporaneously, his claim for damages in this Court asserting that his injuries were caused by his accident on 27 October 1997 in Queensland, and a claim for workers’ compensation from the Territory Insurance Office (‘TIO’) on the basis that his injuries were a consequence of his accident on 11 January 1997 in the Northern Territory. Both claims succeeded. The TIO accepted that the respondent’s disability was a sequel of his earlier accident and paid, inter alia, the following sums by way of its accepted obligation to compensate the respondent:
- Medical expenses $12,165.48
- Hospital expenses $2,629.00
- Vocational rehabilitation $7,747.40
- Rehabilitation $9,783.20
- Massage treatments $136.36
- Travelling expenses $245.46
- Medical investigations $7,326.64
$40,033.54
[61] The appellant claimed this amount as special damages from the trial judge who awarded them. His Honour considered that the TIO had no basis for claiming a charge on any of the damages his Honour awarded to the respondent. Section 176 of the Work Health Act 1986 (NT) provides:
‘(1)Subject to this Act, if an injury in respect of which compensation is payable … is caused under circumstances that appear to create a legal liability in some person other than the employer to pay damages … the person entitled to compensation may take proceedings against that person to recover damages and may also make a claim against the employer for compensation.
(2)Where a person receives compensation and recovers damages from another person in respect of the same injury –
(a)he … shall repay to the employer such amount of the compensation as does not exceed the amount of those damages …
(b)… the employer shall have a first charge on moneys representing those damages … to the extent of compensation …’
The trial judge pointed out that:
‘The availability of the charge depends on whether [the respondent] has received compensation or damages from another person “in respect of the same injury” … Because of my findings about the cause of his injuries in the second accident, particularly that the rupture of his lateral ligament and the fracture both occurred then, the parties are agreed in submitting that the compensation received by [the respondent] has not been in respect of the same injury. They also submit that it was not an aggravation, acceleration, exacerbation, recurrence or deterioration of the earlier injury within the meaning of the word “injury” in s. 3(1) of the [Work Health] Act.’
[62] On the findings made by the trial judge this conclusion appears to be plainly right. The consequence is that the amounts claimed by way of special damages were paid by the TIO, not by the respondent, and the respondent has no legal liability to pay them and no part of the damages he will receive are charged with their repayment. It was not suggested that the respondent felt any social or moral obligation to pay the sums.
[63] In these circumstances it is my opinion that the amount claimed as special damages should not have been awarded. In Blundell v Musgrave (1956) 96 CLR 73 the law was said to be, by Dixon CJ (79):
‘It may be safely stated as a general proposition of law that, before a plaintiff can recover in an action of negligence for personal injuries an item of damages consisting of expenses which he has not yet paid, it must appear that it is an expenditure which he must meet so that at the time the action is brought, though he has not paid it, he is in truth worse off by that amount. Generally speaking the question whether he must meet the expense is to be decided as a matter depending upon his legal liability to pay it. … [T]he basis on which a plaintiff recovers expenses as special damages is that he will have to pay them whether he obtains the amount from the defendant as damages or not.’
Fullagar J expressed the point thus (92):
‘In an action for damages for personal injuries caused by negligence, expenditure necessarily or reasonably incurred in connexion with medical, surgical and nursing attention, the services of an ambulance and treatment in a hospital, is, of course, recoverable by the plaintiff as part of his damages. It is not necessary for him to prove that he has paid the fees chargeable for the services rendered, but it is, generally speaking, necessary for him to prove that he has incurred a legal obligation to pay those fees. … The right to recover depends, of course, on a practical certainty, or at least a high degree of probability, that the payment will have to be made. The existence of a legal liability is strong prima facia evidence that the payment will have to be made.’
Both their Honours dissented on the facts, disagreeing with the majority about whether, on the facts of the case, the plaintiff had shown a liability to pay for the treatment in question. Their Honours’ exposition of the law has, as I understand, never been questioned.
[64] It is true that an exception to the rule was established by the decision of Griffiths v Kerkemeyer (1977) 139 CLR 161 and subsequent cases in the High Court which confirm the principle decided in Griffiths, i.e. Kars v Kars (1996) 187 CLR 354; Van Gervan v Fenton (1992) 175 CLR 327. The exception has, however, been applied only with respect to the voluntary supply of services by relatives or friends of an injured plaintiff whose injuries have given rise to the need for those services. In Griffiths Gibbs J said (167):
‘It would seem logical that the principle of Blundell v Musgrave should be applied not only to cases where hospital or nursing services are available at no cost from some public … institution, but also where they are provided gratuitously by a relative or friend. … But it is I think now open to this court to hold that the decision in Blundell v Musgrave … should not be applied where services are voluntarily provided by relatives or friends.’
Mason J said (191):
‘… [I]t has been held in a succession of cases in England … that an “injured plaintiff can recover the value of nursing and other services gratuitously rendered to him by a stranger to the proceedings” … In Cunningham v. Harrison the plaintiff recovered the value of nursing services rendered to him by his wife, there being no legal agreement that he would pay her for what she did. In Donnelly v. Joyce an infant plaintiff recovered the value of nursing services provided by his mother who gave up her employment to care for him’.
His Honour went on (192-3):
‘The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant. If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided.’
[65] The services in question were not provided gratuitously by any relative or friend of the respondent’s, or benevolently by a stranger. They were provided, pursuant to a normal commercial arrangement, by the doctors and therapists who examined or treated the respondent. Their fees were paid by the TIO, not for some reason of benevolence, but because it understood it had a legal obligation to pay them. This is not a case in which to deny a recovery of the amount to the respondent would involve an undeserved reward to the appellant at the expense of a benevolently minded friend, relative or even a stranger. In my opinion the principle in Griffiths does not extend so far. Professor Luntz in his Assessment of Damages for Personal Injury and Death 4th ed remarks at para 4.2.4 that:
‘On the principle adopted in Griffiths v Kerkemeyer the plaintiff is prima facie entitled to damages for the reasonable cost of medical and hospital treatment once the need for such treatment is shown; … However, the courts have never looked at the question in this way and have generally proceeded on the basis that Griffiths v Kerkemeyer is not relevant to the issue of recovery of damages for hospital expenses.’
As authority Professor Luntz cites Tyrrell v Tyrrell (1981) 25 SASR 73 at 87-8 and Smith v Day [1992] 1 Qd R 233. In my opinion those decisions support the comment.
[66] The respondent sought to justify the award on the basis that the TIO has threatened to bring proceedings against him to recover the moneys paid by way of compensation, which would include the special damages, on some restitutionary basis. This is not a sufficient ground for allowing the award. For a start, there is no certainty that the TIO will ever bring proceedings. Judgment was given in this matter on 26 May 2004. The appeal was heard early in October, by which time proceedings had not commenced. Secondly, if an action is brought, it may not succeed. The respondent may have defences to such a claim based upon his altered position. Whether he has such a defence and whether it would succeed are matters on which it is not possible to express any opinion, even if that were appropriate. But it is not certain that the TIO would succeed in its threatened action. Furthermore the evidence led in such a case may establish that the respondent’s injuries were in fact a sequel of his first accident. The point was one of considerable controversy at the trial. It resolved in the respondent’s favour because of Dr Sampson’s clinical findings. He was not called as a witness and the points against his opinion advanced by other specialists were not put to him for consideration. It is quite conceivable that in a new trial with different evidence a different finding as to the cause of the respondent’s injury may be made. For these reasons it is entirely conjectural whether the respondent would ever be liable to repay to the TIO any part of the special damages or other sums paid by the TIO.
[67] Accordingly I would reduce the award by the amount of $40,033.54.
[68] The second point concerns the award of interest. Judgment was given, as I mentioned, on 26 May 2004. Interest on damages assessed in respect of economic loss was awarded for a period of six and a half years. The loss commenced in April 1998 when the respondent was assigned to office duties on a reduced wage. By the time of judgment that loss had existed for six years. The amount involved in half a year’s interest is small: a little over $4,000. Nevertheless the award of interest for six and a half years involves an overpayment by that small amount, and the award should be adjusted, though I would not have thought it appropriate to do so in the absence of any larger adjustment being made.
[69] With respect I cannot accept that the adjustment should not be made because the amount will not be paid before the disposition of the appeal so that ‘the relevant period … dates from April 1998 to now, … closer to the 6.5 years that his Honour applied.’ The reason is that interest is payable on the amount of the judgment from the date of the judgment pursuant to s 48 of the Supreme Court Act 1995 (Qld). The judgment sum on which interest is payable includes the amount in question assessed for interest on past economic loss. The prescribed rate of interest on the judgment is 10 per cent. The interest which his Honour assessed was, of course, awarded pursuant to s 47 of the Supreme Court Act which allows for interest to be awarded up to the date of judgment.
[70] Accordingly I would further reduce the award by $4,000.
[71] The substantial failure of the appeal means, in the peculiar circumstances of this case, that the respondent has been very substantially over-compensated. He has recovered a very large award from the appellant on the basis that he was injured by its negligence in Queensland. He has also recovered substantial amounts from the TIO on the basis that the same injuries were caused by the earlier injury in the Northern Territory. For reasons given by the trial judge and explained by Jones J there is nothing this Court can do about what appears, on the face of things, to be duplicated compensation. I would, however, order that there be a stay of execution of the judgment for three months to allow the TIO to decide whether it does wish to commence a restitutionary action. There must be a fear that if the award were paid to the respondent it may be dissipated before the TIO could commence an action and seek some protection against that eventuality. Such a stay would not be a hardship to the respondent who has already recovered the equivalent of the award by way of compensation.
[72] The orders I propose are:
1.That the appeal be allowed and the judgment of 26 May 2004 be reduced by the sum of $44,033.54.
2.That the execution of the judgment be stayed for a period of three months.
3.That the appellant pay 7/8ths of the respondent’s costs of the appeal.
Footnotes
[1] [1994] 1 Qd R 258.
[2] Para 6 Statement of Claim, Record p 717
[3] Ibid at para 6A
[4] Record 334-5
[5] Record 334
[6] Record 728/10
[7] Record 21/45
[8] Record 400
[9] Record 114/20
[10] Record 24/20-28
[11] Ex 8 – Record 558
[12] Record 240/20
[13] Record 241/8-30
[14] Record 235/1
[15] Record 235/10
[16] Record 146/20
[17] (1993) 177 CLR 472
[18] Judgment [8] at record p 727
[19] (1998) 195 CLR 232 paras [8]; [34] and [93]
[20] Edwards v Noble (1971) 125 CLR 296
[21] Para [23] – Record 730
[22] (1977) 136 CLR 145
[23] Record 711-713
[24] Supplementary record at 40
[25] (1961) 105 CLR 569
[26] Ibid at 573
[27] Record 41/20
[28] [2003] QCA 242; [2004] 2 Qd R 139.
[29] Ibid at para [53]