Evans v Brambles Australia Ltd [1998] QCA 309

IN THE COURT OF APPEAL [1998] QCA 309 SUPREME COURT OF QUEENSLAND Appeal No. 10235 of 1997 Brisbane [Evans v Brambles Aust. Ltd] BETWEEN: KEVIN ALEXANDER EVANS (Plaintiff) Appellant AND: BRAMBLES AUSTRALIA LIMITED (ACN 000 164 938) (Defendant) Respondent Pincus JA Thomas JA Mackenzie J Judgment delivered 13 October 1998 Judgment of the Court APPEAL DISMISSED WITH COSTS. CATCHWORDS: DAMAGES - quantum - future economic loss. Counsel: Mr J. S. Douglas QC for the appellant Mr T. I. Morgan for the respondent Solicitors: Vincent Morrin Associates for the appellant Quinlan Miller & Treston, town agents for Macrossan & Amiet, for the respondent Hearing Date: 17 August 1998 -- 1 of 6 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 10235 of 1997 Brisbane Before Pincus JA Thomas JA Mackenzie J [Evans v Brambles Aust. Ltd] BETWEEN: KEVIN ALEXANDER EVANS (Plaintiff) Appellant AND: BRAMBLES AUSTRALIA LIMITED (ACN 000 164 938) (Defendant) Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered 13 October 1998 1 The issue in this appeal is whether the learned trial Judge’s assessment of future economic loss is inadequate with the consequence that the damages overall are manifestly inadequate. 2 The appellant was a comparatively young man, 26 years old, when he suffered an accident at work in which a heavy object fell and pinned him against a structure supporting a conveyor belt. This caused considerable pain principally in the chest and right shoulder area. Medical practitioners found difficulty in identifying the precise nature of the abnormalities which persisted, but in the event he has been left with disabilities variously described as 15% loss of use of the right upper limb (by an orthopaedist); 5% loss through neck pain and headaches, and 5% loss of use of the hand through -- 2 of 6 -- 2 sensory loss (according to a neurosurgeon); or 5% impairment of the whole patient (in the opinion of Dr Macfarlane who assessed disability in the right arm and neck). The fact of major relevance for the purposes of an assessment of damages is that the appellant cannot work effectively above shoulder height. Although he had worked in various capacities, he was by the time of the accident an experienced sandblaster and industrial painter. Many of the activities associated with such work require physical activities above shoulder height, and it was accepted that he cannot now carry out work of this kind. 3 The learned trial Judge assessed damages at a total of $262,022.21. The following components were assessed in relation to lost earning capacity - Past economic loss $ 90,000.00 Future economic loss $100,000.00 Loss of employer’s contribution to superannuation (past and future) $ 11,400.00 4 Apart from making some unsuccessful attempts to resume work with his former employer, the appellant had not returned to work between the date of accident (15 June 1994) and the time of trial (October 1997, judgment 10 November 1997). 5 In this particular case there was considerable difficulty and uncertainty in making any reliable estimate of the likely future level of earnings by the appellant but for the accident, and also the likely earnings that he will now make with his disability. He has certainly retained a reasonable earning capacity, but of course he is cut off from sandblasting and spray painting work which he was well qualified to perform. The learned trial Judge’s reasons included the following statement: “For future economic loss, I have indicated that it seems to me the most likely employment that will be open to Mr Evans is the security work. Taking Mr Pons’ recent income as a guide of the kind of -- 3 of 6 -- 3 income available for industrial painting and sandblasting, the difference between security work and that is about $120.00 per week. If all of the bright prospects which the defendant pointed to in the course of the trial fell into place for Mr Evans, he will in fact be able to earn considerably more than Mr Pons has been earning. However, it seems to me that there is no high probability that this will happen but there is a certainty that he is now not as fit and strong and capable for work as he was before his injury, which is not something that can be calculated with precision but the loss of $120.00 over 30 years would amount to approximately $100,000.00, and this seems to me to indicate the extent of his economic loss. He may, of course, have been able to earn much more than Mr Pons over a long period and he may still be able to earn a considerable sum of money, but this does indicate what is reasonably foreseeable.” 6 The principal submission for the appellant was that the $120.00 per week which His Honour projected over the next 30 years was said to be an inadequate measure of economic loss over that period. We did not understand counsel for the appellant, Mr J.S. Douglas QC, to challenge seriously His Honour’s projection of future earning capacity at a level approximately that at which a security worker would earn, namely about $331.00 per week. Mr Douglas submitted however that it would be quite unrealistic to assume that he might also engage in occupations or positions (e.g. painting supervisor) which would earn substantially more than this. Such possibilities obviously existed, but we do not understand His Honour to have placed any store by them, or to have paid them any greater heed than recognising them as theoretical possibilities. 7 The difficulty about projecting a high rate of future earnings on a continuous basis over many years is that his actual earnings up to the time of the accident, although satisfactory, were not particularly high. Although qualified to perform industrial painting, and having for a period at age 21 been a “supervisor” (which means that he was in charge of some other painters) for various reasons he seems not to have engaged in highly paid work for continuous or lengthy periods. There are for example periods of unemployment and periods of relatively low earnings in a gymnasium or assisting a relative in a nightclub. Mr Douglas referred to the circumstance that the appellant’s de facto partner was pregnant with their first child at the time of the accident, and that this event would have been likely to -- 4 of 6 -- 4 induce him to settle down and thereafter to choose to exercise his maximum earning potential. Whilst that submission may carry some degree of persuasion, it is one that the learned trial Judge was in a far better position to assess than this Court, and it is not a sufficient basis to require the assumption that there would have been a substantial upward change in the patterns that emerged in his economic history up to that time. 8 The evidence of Mr Pons shows that some work was available at which an industrial painter might earn $990.00 net for a six day week. However, despite the alleged availability of such work, and the fact that the appellant on occasions performed such work, his past record (on the basis of his tax returns) shows that he achieved only the following approximate average weekly net earnings during the four years preceding the accident - Year ended 30 June 1991 $262.00 Year ended 30 June 1992 $486.00 Year ended 30 June 1993 $292.00 Year ended 30 June 1994 $356.00 9 For the future such figures might reasonably be projected upwards by taking into account that during the 23 weeks immediately before the accident his earnings were at a relatively high rate, around $650.00 net per week. It was also reasonable to take into account, as His Honour obviously did, the limited information given to the Court by Mr Pons in relation to his 1996 and 1997 earnings, as a measure of what could be achieved with appropriate application, and the stated intention of the appellant to pursue such work. Further there was the additional incentive that fatherhood would provide. -- 5 of 6 -- 5 10 His Honour’s assessment of future economic loss cannot be described as inadequate unless His Honour ought to have projected prospective earnings on the part of the appellant over the next 30 years at a level of greater than $550.00 per week net. It cannot be said that His Honour erred by failing to take a more optimistic view of the appellant’s economic future than this. In the first place, the projection carries forward until the appellant would reach an age of almost 60, and the projection of highly paid work over such a long period would be unrealistic. In the second place the appellant’s pre-accident record, despite the availability of such work, does not provide a good enough basis to require a more optimistic projection to be made. 11 In this case fine calculations were impossible. The projection over 30 years at $120.00 per week should be taken only as an indicative example in a case where a broad brush approach was necessary. It is impossible to say that this award for future economic loss was erroneous or inadequate. 12 The appeal should be dismissed with costs. -- 6 of 6 --