Coles Supermarkets Australia Pty Ltd v Fardous

1. [1]

   MACFARLAN JA: On 10 July 2010 Mr Abrahim Fardous, the respondent, slipped and fell at the appellant’s supermarket at Burwood. He injured his back and sued the appellant for damages for negligence. Following a hearing in the District Court before Sorby DCJ, his Honour found in Mr Foudous’ favour on liability and awarded him damages (as later adjusted) of $354,965.

2. [2]

   The appellant does not challenge the liability finding but appeals against the adjusted awards of $79,600 for past economic loss, $219,640 for future economic loss and $25,725 for future out-of-pocket expenses. On appeal the parties accepted that the accident at the appellant’s supermarket destroyed any earning capacity that Mr Fardous then had. The principal question raised by the appeal is whether Mr Fardous had any earning capacity at that time, taking into account an earlier work accident that occurred in September 2007.

THE SEQUENCE OF EVENTS AND MEDICAL OPINIONS

1. [3]

   Mr Fardous was born in Lebanon in 1966 and migrated to Australia with his family in 1976. He left school after year 10 and was employed for 11 years as a machine operator at HBA Book Binding. He commenced employment with Graphic Book Binding in 1999 and on 27 September 2007 he was injured in the course of his employment with that company. As a result, Mr Fardous suffered severe lower back pain, extending into his left leg, and was admitted to hospital for five days. After examining CT and MRI scans, Dr Mark Davies, a neurosurgeon and spinal surgeon, concluded that Mr Fardous had an L3/4 spinal injury that warranted surgery (Report, 28 December 2012, p 1).

2. [4]

   Dr Davies performed the surgery on 31 January 2008 and advised Mr Fardous that he should return for a consultation in August 2008 and “that if a job was available for him he would be fit to return to work on restricted duties” (ibid, p 2).

3. [5]

   On 6 August 2008 Dr James Bodel, an orthopaedic surgeon engaged by Graphic Book Binding’s insurer, examined Mr Fardous. Dr Bodel recorded that Mr Fardous “state[d] that unfortunately after the surgery was done on 31 January 2008 there ha[d] been minimal improvement” and that he had ongoing lower back pain and stiffness, as well as listing five different medications as proposed or current treatment for Mr Fardous (Report, 6 August 2008, pp 2, 3). Dr Bodel concluded that Mr Fardous “remains unfit for all work” and that further surgery might be necessary depending on the outcome of a forthcoming examination by Dr Davies (ibid, pp 4, 5).

4. [6]

   Dr Davies’ report of 28 December 2012 includes the following in relation to his consultation with Mr Fardous on 18 August 2008:

5. [7]

   Mr Fardous met with Dr Gorman on 4 September 2008.

6. [8]

   On 17 June 2009 Dr John Davis, a consultant in occupational medicine, reported, for the purposes of a workers’ compensation claim by Mr Fardous against his employer, on his assessment of Mr Fardous the previous day. Dr Davis noted that Mr Fardous had a continuing complaint of constant lower back pain but was “not at all keen to undergo any further [surgical] procedure at this time” (Report, 17 June 2009, p 3). Notwithstanding Mr Fardous’ reluctance, Dr Davis was of the view that Mr Fardous would eventually have to “succumb” to further surgery. He said that Mr Fardous was no longer able to undertake work which involved lifting more than five kilograms and that Mr Fardous was permanently unfit to return to his pre-injury work. He concluded:

7. [9]

   On 24 September 2009 Dr Con Kafataris, a corporate medical consultant engaged by Mr Fardous’ employer’s insurer, reported on his assessment of Mr Fardous. Dr Kafataris reported that Mr Fardous said that his surgery in January 2008 “gave him no improvement in his symptoms not even temporary improvement in his leg pain” (Report, 24 September 2009, p 1). Dr Kafataris noted:

8. [10]

   Dr Kafataris concluded as follows:

9. [11]

   On 3 November 2009 Mr Fardous commenced proceedings in the District Court claiming damages from his employer. His Statement of Particulars asserted that as a consequence of the injuries that he sustained in the 2007 accident Mr Fardous “has not been able to return to work and given the extent of the pathology in his back, he is unlikely to ever return to work in any meaningful capacity” and that he “is effectively totally incapacitated for employment” (p 3).

10. [12]

    On 17 December 2009 Mr Fardous attended Dr Nasr Ismail, a general practitioner practising at the Al Zahra Medical Centre. Dr Ismail noted that “Mr Fardous continued to complain about back pain and left leg numbness and loss of left knee reflexes” and that his involvement in an expensive and comprehensive pain management program had not reduced his pain or improved his quality of life (Report, 17 December 2009, p 1). Dr Ismail considered that helping Mr Fardous to obtain employment depended on improving his pain management which would in turn help to solve “his psychological trauma and improve physical activity” (ibid). Dr Ismail concluded that if Mr Fardous’ ability to work was reassessed as up to 20 hours per week:

11. [13]

    On 19 March 2010 Mr Fardous’ proceedings against his employer were settled, with judgment to be entered in his favour in the sum of $365,000.

12. [14]

    In a report dated 3 November 2010 Dr Ismail recorded the following in relation to a consultation with Mr Fardous on 26 March 2010:

13. [15]

    In his report dated 28 December 2012 Dr Davies noted that he had not seen Mr Fardous after 16 August 2008 but that he was “assured by him, and the suggestion is from his GP, that he continued to improve and in the end had little pain” (Report, p 3).

14. [16]

    The accident at the appellant’s premises occurred on 10 July 2010.

15. [17]

    Mr Fardous gave evidence that prior to the July 2010 accident he had attempted to obtain work but had been unsuccessful (transcript pp 6, 26). In February/March 2011 he undertook a course to obtain a qualification as a security guard. He obtained the relevant certificate in November 2011 but was unable to obtain security work (or any other type of job).

THE JUDGMENT AT FIRST INSTANCE

1. [18]

   After reviewing the evidence, the primary judge found the following in relation to Mr Fardous’ condition prior to his July 2010 accident:

2. [19]

   In relation to out-of-pocket expenses, his Honour noted that there was an overlap between the medication and treatment taken and received as a result of the two accidents (Judgment [42]). His Honour took that into account in his award for past and future expenses (Judgment [43]).

3. [20]

   His Honour also awarded Mr Fardous $13,000 to cover the possibility that he would need an operation in the future to deal with the injury he suffered in the July 2010 accident (Judgment [46]).

4. [21]

   His Honour awarded Mr Fardous damages for past economic loss on the basis that his earning capacity before the July 2010 accident was 20 hours per week at $20 per hour and that this had been lost. His Honour erroneously recorded that Mr Fardous had obtained a “security license” prior to the July 2010 accident (at [54]). His Honour found that, but for that accident, Mr Fardous could have utilised the license to obtain work “in a sedentary position” as a security guard at $20 per hour.

5. [22]

   His Honour also said:

6. [23]

   His Honour’s reference to Mr Fardous being then presently capable of working 20 hours a week appears to have been a slip. Presumably, his Honour was intending to say that, but for the July 2010 accident, Mr Fardous would have been so capable.

7. [24]

   By agreement of the parties the award for future economic loss was later adjusted to $219,640.

RESOLUTION OF THE APPEAL

1. [25]

   As noted earlier, it was accepted on appeal that the July 2010 accident destroyed any earning capacity that Mr Fardous then had. The question therefore was whether Mr Fardous had any pre-existing earning capacity and, if so, to what extent. A plaintiff in Mr Fardous’ position must prove “the extent of his or her pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his or her ability to exercise the pre-accident earning capacity” (Morvatjou v Moradkhani [2013] NSWCA 157 at [54] citations omitted). In the absence of an issue about a plaintiff’s pre-existing condition emerging from the plaintiff’s case, the defendant has an onus to adduce evidence to raise it. The legal onus nevertheless rests on the plaintiff “upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence” (Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 168). In the present case, there was ample material in the evidence led by both the plaintiff and the defendant to raise an issue as to the effect of the 2007 accident on Mr Fardous. Accordingly, no question of the defendant/appellant not discharging an evidentiary onus arose.

2. [26]

   The medical opinions pre-dating the July 2010 accident suggested that Mr Fardous had at least a theoretical capacity to work for up to 20 hours per week in a relatively sedentary occupation. Whether any such theoretical earning capacity would, but for the July 2010 accident, have been productive of income is a hypothetical question requiring consideration of what would or might have happened in the period up to and after the hearing at first instance if that accident had not occurred. That question is to be answered by determining the degree of probability or possibility that the earning capacity would have been productive of income (Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 642-643). The issue is not one of whether an event has or has not occurred. Such an issue would have to be determined on the balance of probabilities and “if the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain … ” (ibid).

3. [27]

   This approach accords with the dictates of s 13 of the Civil Liability Act 2002 (NSW) which provides:

4. [28]

   Application of this section to the present case requires a statement of the court’s “assumptions” (that is, findings) about the extent to which, but for the July 2010 accident, any earning capacity that Mr Fardous had at the date of the accident would have been productive of income thereafter. This involves a statement of the “percentage possibility” of income of a certain level being earned. As with the assessment of earning capacity remaining after an accident that is the subject of the proceedings, there needs to be a “practical assessment” of the likelihood of the plaintiff having obtained employment (see Nominal Defendant v Livaja [2011] NSWCA 121 at [65]; Mead v Kerney [2012] NSWCA 215 at [18]).

5. [29]

   The primary judge appears to have proceeded on the basis that it was certain that Mr Fardous had pre-accident earning capacity that, but for the July 2010 accident, would have produced income for 20 hours per week at $20 per hour. This was erroneous given that the evidence did not indicate the certainty of this occurring and, as I have noted, a balance of probabilities approach (if that is what the primary judge adopted) was not appropriate.

6. [30]

   It is therefore necessary to re-consider the issue. The following matters are relevant in this respect.

7. [31]

   First, the medical evidence of examinations prior to the settlement on 19 March 2010 of Mr Fardous’ claim against his employer in relation to his 2007 workplace accident gave a relatively bleak assessment of the realistic prospects of Mr Fardous obtaining employment. In August 2008 Dr Bodel referred to only “minimal improvement” in the 18 months since Mr Fardous underwent surgery and around the same time Dr Davies was doubtful of Mr Fardous’ ability to obtain work (see [5] and [6] above).

8. [32]

   In June 2009 Dr Davis opined that it was more likely than not that Mr Fardous would not obtain employment and in September of that year Dr Kafataris referred to the absence of improvement in Mr Fardous’ symptoms ([8] and [9] above). Nevertheless Dr Kafataris contemplated that Mr Fardous might be able to work up to 20 hours per week and, later, even 40 hours per week (see [10] above). In December 2009 Mr Fardous’ general practitioner, Dr Ismail contemplated that Mr Fardous might be able to work up to 20 hours per week (see [12] above).

9. [33]

   Secondly, after settlement of his proceedings against his employer, Mr Fardous reported significant improvement in his pain, with Dr Davies later reporting that by the time of his July 2010 accident Mr Fardous asserted that he had little pain (see [15] above). The primary judge accepted that Mr Fardous’ symptoms had improved by March 2010 but concluded that he still had pain at that time (see [18] above).

10. [34]

    In these circumstances, it is by no means certain that Mr Fardous would, but for his July 2010 accident, have ever resumed significant gainful employment. Nevertheless, his condition was improving by the time of that accident and in my view the medical evidence supports a finding that Mr Fardous had a significant prospect of obtaining employment of 20 hours per week at the rate of $20 per hour. I assess the prospect of this occurring as 65%. The primary judge’s award in respect of both past and future economic loss should be reduced to reflect this percentage, the deduction being in addition to the normal allowance of 15% for vicissitudes of life.

11. [35]

    There was no evidence to found the primary judge’s specific conclusion, reached when dealing with past economic loss, that Mr Fardous would have obtained work as a security guard and that his rate of pay in that role would have been $20 per hour. However the evidence is sufficient to enable it to be inferred that Mr Fardous had a significant prospect of obtaining some type of part-time employment at this rate. Consistent with this approach, the primary judge, in dealing with future economic loss, referred to Mr Fardous’ capability of obtaining “a light sedentary type job”, paid at the rate of $20 per hour (at [59]).

12. [36]

    The appellant submitted that it was not open to the Court to conclude, in the absence of evidence, that $20 per hour would have been an achievable rate of pay. In my view the Court can however infer that if Mr Fardous obtained employment that it would have been at least at that modest rate of pay. Depending on the circumstances, the want of specific evidence on aspects of a damages claim does not prevent the court doing the best it can to address the plaintiff’s loss (National Instruments Pty Ltd v Gilles (1975) 49 ALJR 349 at 350; JK Kealley v Jones [1979] NSWLR 723 at 733-734; State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [64]-[87]).

13. [37]

    The appellant challenged the primary judge’s awards of $7,000 for the costs of pain relief medication that Mr Fardous was likely to incur in the future and $5,725 for the costs of future consultations with a general medical practitioner. The appellant submitted that Mr Fardous would have incurred these expenses as a result of his September 2007 injury regardless of whether or not he had suffered further injury on 10 July 2010. However in making the awards, his Honour took into account Mr Fardous’ medical needs resulting from the September 2007 accident and only allowed for the cost of additional needs that flowed from the July 2010 accident (Judgment [44] and [45]). There was no error in this approach and no other basis for interfering with his Honour’s assessments was demonstrated.

14. [38]

    The appellant also challenged the primary judge’s award of $13,000 for the possibility that Mr Fardous might, as a result of his injury suffered in July 2010, need to undergo further surgery. Because his Honour’s finding reflected a submission put to him on behalf of Mr Fardous which the appellant did not attempt to answer, the challenge to his Honour’s award should be rejected on the basis that the appellant is bound by its conduct of the proceedings at first instance.

ORDERS

1. [39]

   For the reasons that I have given, the quantum of the damages awarded to Mr Fardous in respect of past and future economic loss should be adjusted. Whilst the appellant has had some success on appeal it is only limited success and in my view it should therefore pay 65% of Mr Fardous’ costs of the appeal.

2. [40]

   I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the judgment of $354,965 entered pursuant to orders made in the District Court on 30 July 2014.

   3. (3)

      Direct that the parties lodge with the Court within 14 days of the date of this judgment a form of consent order varying, in accordance with the Court’s reasons for judgment, the amount of the judgment entered in Mr Fardous’ favour in the District Court or, if the parties are unable to agree on the form of that order, that they lodge proposed orders and submissions in accordance with the following timetable:

   4. (4)

      Order the appellant to pay 65% of the respondent’s costs of the appeal.

3. [41]

   EMMETT JA: The question in this appeal is whether, as at 10 July 2010, the respondent, Mr Abrahim Fardous, had any earning capacity having regard to an accident that he suffered at work on 27 September 2007. That question is relevant to the damages to which Mr Fardous is entitled as a consequence of a fall that he suffered at the Burwood supermarket of the appellant, Coles Supermarkets Australia Pty Ltd (Coles), on 10 July 2010. Mr Fardous injured his back and sued Coles for damages for negligence in the District Court.

4. [42]

   Coles was found liable and Mr Fardous was awarded damages of $354,965, which included $79,600 for past economic loss, $219,640 for future economic loss and $25,725 for future out-of-pocket expenses. Coles has now appealed to this Court in respect of certain aspects of the assessment of damages. It does not challenge the finding of liability and accepts that the fall on 10 July 2010 destroyed any residual earning capacity that Mr Fardous might have had at that time. However, Coles contends that the District Court should have found that Mr Fardous had no earning capacity at the time of the accident in its supermarket.

5. [43]

   Section 13 of the Civil Liability Act 2002 (NSW) relevantly provides that a court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury. The court is then required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. The court is required to state the assumptions on which the award was based and the relevant percentage by which the damages were adjusted.

6. [44]

   I have had the advantage of reading in draft form the proposed reasons of Macfarlan JA. I agree with his Honour that the District Court erred in proceeding on the basis that it was certain that Mr Fardous had a pre-accident earning capacity that, but for the accident on 10 July 2010, would have produced income for 20 hours per week at $20 per hour. I also agree with Macfarlan JA, for the reasons proposed by his Honour, that the medical evidence supports a finding that Mr Fardous had a significant prospect of obtaining employment of 20 hours per week at the rate of $20 per hour and that the prospect of that occurring was 65 per cent. Further, I agree with Macfarlan JA that there was no error on the part of the District Court in the assessment of damages for future out-of-pocket expenses.

7. [45]

   It follows that the appeal should be allowed. However, the measure of Coles’s success is not great, insofar as it contended that Mr Fardous was entitled to no damages for past and future economic loss. I agree with Macfarlan JA that the appropriate order for costs is to require Coles to bear 65 per cent of Mr Fardous’s costs of the appeal. I agree with the orders proposed by his Honour.

8. [46]

   SIMPSON J: I agree with Macfarlan JA.