Bates v Flanagan & The Nominal Defendant [2001] QCA 247

SUPREME COURT OF QUEENSLAND CITATION: Bates v Flanagan & The Nominal Defendant [2001] QCA 247 PARTIES: PAUL IAN BATES (plaintiff/respondent) v BRUCE FLANAGAN and THE NOMINAL DEFENDANT (defendants/appellants) FILE NO/S: Appeal No 5285 of 2000 DC No 106 of 1999 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Hervey Bay DELIVERED ON: 26 June 2001 DELIVERED AT: Brisbane HEARING DATE: 7 March 2001 JUDGES: McMurdo P, Davies JA and Ambrose J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Appeal dismissed with costs CATCHWORDS: APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS - EXCESSIVE OR INADEQUATE DAMAGES – PARTICULAR CASES – ACTIONS FOR NEGLIGENCE – PERSONAL INJURY – whether the primary judge's assessment of past and future economic loss was manifestly excessive DAMAGES – MEASURE AND REMOTNESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – whether the assessment of past and future economic loss was made on an erroneous basis Evidence Act 1977 (Qld), s 92 Motor Accident Insuranct Act 1994 (Qld), s 33(2) -- 1 of 5 -- 2 COUNSEL: J B Rolls for the appellants J R Webb for the respondent SOLICITORS: Clayton Utz for the appellants Suthers, Lawyers for the respondent [1] McMURDO P: The respondent was injured in a collision between his motor cycle and a station wagon on 16 December 1997. The appellant admitted liability and on 22 May 2000 a District Court judge in Hervey Bay awarded the respondent damages of $244,188.12 inclusive of interest. The appellant contends that the assessment for past and future economic loss was manifestly excessive and was assessed on an erroneous basis. [2] It should be noted that since this appeal was heard the second appellant, FAI, has become insolvent and has been replaced in the proceedings by the Nominal Defendant under s 33(2) Motor Accident Insurance Act 1994. [3] The respondent was 21 years old at the time of the accident and 23 at trial. The respondent's fractured right ankle was his only significant injury affecting economic loss. The medical evidence [4] Dr Winstanley was the sole orthopaedic surgeon to provide evidence. Dr Winstanley assessed a permanent partial disability to the right lower limb of 12.5 per cent loss of bodily function which had stabilised and did not require further investigation or surgery; the respondent could continue in his pre-accident occupation on an indefinite basis but in the long term would benefit from lighter type activities as this may decrease the incidence of developing osteoarthritic change present within his ankle; there was a slight increased risk of developing osteoarthritic change in the future. [5] Occupational therapist Lesley Stephenson gave the following evidence. She noted the respondent's pain to his ankle was aggravated by crouching and awkward postures, such as when working underneath or inside a vehicle or when lifting and supporting weights like car doors. In the not too distant future, he will need to consider pursuing an alternative career. Occupations requiring medium to heavy lifting, like panel beating, cause discomfort but are not closed to him if he is prepared to work with pain. He was employable as an automotive assessor, sales representative or manager or supervisor of an office associated with the motor industry; these occupations could be more lucrative than panelbeating. Most panelbeaters move out of fulltime heavy work from the age of 40 to 50. Insurance assessors were more likely to be employed if they had at least five years post- apprenticeship experience. [6] Psychologist and occupational therapist Margaret Kennedy, deceased, whose report was tendered without cross-examination under s 92 Evidence Act 1977, concluded that the respondent was commercially employable on a fulltime basis in semi- skilled or skilled work with a medium level of physical demand but that his work as a panelbeater was in the medium to heavy work category. She advised lighter work because of his right ankle injury in the medium to long term. She noted the -- 2 of 5 -- 3 respondent was motivated to undergo re-training and she identified alternative careers, like those outlined by Ms Stephenson. The respondent's evidence [7] The respondent at the time of the accident had completed three and a half years of a four year apprenticeship as a panelbeater. The accident delayed him by six months in qualifying although he lost only one month of higher wages as a tradesman. He qualified in the top two per cent of panelbeaters in his final year of study and was selected as one of only seven Queensland apprentices to work as panelbeaters at the Indy grand prix on the Gold Coast. He was interested in grand prix work and had hoped to travel on the professional racing circuit as a panelbeater which he believed was more lucrative than standard panelbeating work. His injury has prevented this. [8] After returning to work five months after the accident, he experienced difficulties squatting or standing for long periods and suffered severe pain when completing some heavy tasks. He has adapted his work practices as best he can by sitting rather than squatting and by using a small stool. [9] After a time, he decided to seek a different career path because of the physical difficulties caused by his injured ankle. He considered retraining by completing a four year manual arts course. He decided to move to Brisbane at the beginning of April 1999. After investigating the course and speaking to manual arts teachers he decided he did not wish to pursue that career. [10] On 4 May 1999 he obtained employment as a panelbeater with Simca Crash, initially as a casual but later fulltime. His work involved repairing motor cycles which he found physically easier than working on cars. Nevertheless, the pain in his leg became so great that after six months he took one month off and arranged with his employer to return on a casual basis working two to three days a week and resting on the other days. He continued in this mode until trial. The respondent gave evidence which was unchallenged that whilst working fulltime at Simca he earned $580 or $600 per week net and since working casually on a part-time basis he earns around $300 per week net. In his tendered statement, he said that he earned $21,144.46 net at Simca from July 1999 until 18 May 2000. Two documents from Simca were tendered as exhibit 23, setting out further details of his earnings. The primary judge's findings [11] The learned primary judge accepted the evidence of the respondent, whom he found to be "a very impressive witness".1 His Honour also accepted the evidence of the occupational therapists as supporting the respondent's evidence that the respondent had to reduce his hours of work as a panelbeater because of his ankle injury. The appellants do not contest these findings. [12] His Honour also found that the respondent could presently earn $580 per week from Simca at trial; he was earning $300 for two to three days work per week; some panelbeaters earn in excess of $1,000 per week; it was highly likely the respondent, who was respected by his employers, could have earned high wages as a panelbeater but for his injury. 1 Judgment, p 13. -- 3 of 5 -- 4 Did the judge err in construing exhibit 23? [13] The appellants' primary contention is that the learned primary judge erred in observing that exhibit 23 and "maybe one other exhibit, suggests that working for [Simca] [the respondent] could have earned net about $580 per week"; as a result his assessments of economic loss are flawed and inflated. [14] The "other exhibit" referred to by his Honour was probably exhibit 22, which was a statement on behalf of Simca that it employs "tradesmen panelbeaters with a take home pay of $580 per week". [15] Exhibit 23 comprises two documents. One dated 3 November 1999 states that the respondent's "net earnings to 30 October, are $13,703.45", and the other dated 18 May 2000, headed "Payroll Register (Summary) Year to Date" records the respondent as earning net $21,144.46. [16] The appellants now claim this document does not support the respondent's evidence. The exhibits were not tested at trial and were admitted apparently with the concurrence of the parties. Their effect does not seem to have been an issue before the primary judge. It is necessary to refer to the respondent's evidence to understand these exhibits. [17] The respondent said that he commenced work at Simca on 4 May 1999 initially as a casual and after an unspecified period was offered fulltime work. He was unsure whether fulltime work resulted in a decrease in his wage, but his fulltime wage was $580 net per week. After about six months he had one month off work and then returned to work two to three days per week averaging a take-home pay of about $300 per week. He said in his tendered statement that he earned $21,144.46 at Simca from the beginning of July 1999 until 18 May 2000. His net earnings from July 1999 to 30 October 1999 were $13,703.45, a weekly wage in excess of $580. This excess in the respondent's favour may be because the $13,703.45 includes higher wages for casual work prior to becoming fulltime and perhaps termination payments or holiday pay when terminating fulltime employment. It was not explored at trial, but it supports the respondent's claim that but for his injury he could have earned high wages as a panelbeater and does not suggest his weekly wage was less than $580. When the $13,703.45 is taken from the earnings for the total period ($21,144.46) earnings of $7,441.01 remain for the 201 days from 30 October 1999 until 18 May 2000. The respondent was absent for one month. It is not clear whether he received any payment for that period, but assuming he did not, the $7,441.01 was earned over 173 days or 24.7 weeks, an average weekly payment of a little over $300. This was the figure reached by his Honour. His Honour did not err in concluding that exhibits 22 and 23 supported the respondent's evidence as to his economic loss. [18] The learned primary judge correctly calculated past economic loss on this basis and was not required to discount that loss because of the respondent's youth and excellent work record. Consequently, there is no merit in the appellants argument as to past economic loss. Future economic loss -- 4 of 5 -- 5 [19] The appellants nevertheless contend that his Honour's assessment of future economic loss was manifestly excessive. [20] His Honour accepted evidence that fulltime panelbeaters could earn in excess of $1,000 net per week and that the respondent, who was highly regarded by his employers and was "a determined young man", would very probably have been able to earn high wages as a panelbeater but for his injury. His Honour accepted the respondent had "suffered a significant impairment of his ability to earn; panelbeaters work hard when young and usually aim to set up their own business." His Honour saw the case as one where it was not appropriate to determine a particular yearly loss for a fixed period but took what is commonly called a broad brush approach and allowed $165,000 for future economic loss. I agree with his Honour that this was an appropriate case in which to take such an approach. The respondent suffered a significant injury to his ankle which has impaired his ability to earn substantial income whilst young and fit, by working long hours in the medium to heavy field of physical work demanded by panelbeating in which he is trained. He was only 23 at trial. He is, however, a capable young man and should gain employment in the alternative areas suggested by the occupational therapists, at least within five to ten years; these areas of work are potentially more highly paid than panelbeating. At trial, his economic loss was in the vicinity of $300 per week. Whilst he is likely to obtain future work in more lucrative areas, he may not. He remains less employable than he was before the accident. Although the award for future economic loss is generous, after considering the competing factors and the usual contingencies, I am not persuaded it is so excessive as to justify this Court's intervention. [21] It follows I would dismiss the appeal with costs. [22] DAVIES JA: I agree with the reasons for judgment of the President and with the order she proposes. [23] AMBROSE J: I agree and have nothing useful to add. ORDER: The appeal is dismissed with costs. -- 5 of 5 --