Chandler v Bailey [1996] QCA 60

IN THE COURT OF APPEAL [1996] QCA 060 SUPREME COURT OF QUEENSLAND Appeal No. 215 of 1994. Brisbane [Chandler v. Bailey] BETWEEN: ALLAN KEITH CHANDLER (Plaintiff) Respondent AND: JOHN PAUL BAILEY (Defendant) Appellant ___________________________________________________________________ Pincus J.A. Davies J.A. McPherson J.A. ___________________________________________________________________________ Judgment delivered 15/03/1996 Judgment of the Court ___________________________________________________________________________ APPEAL ALLOWED WITH COSTS. JUDGMENT FOR $333,729.00 TO BE SUBSTITUTED FOR THAT GIVEN BELOW. ___________________________________________________________________________ CATCHWORDS: PERSONAL INJURY - quantum - future economic loss - mathematical error - Griffiths v. Kerkemeyer - Griffiths v. Kerkemeyer loss recoverable only for work made necessary because injured person cannot perform work that would have been performed. Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161 Van Gervan v. Fenton (1992) 175 C.L.R. 327 Counsel: Mr J Webb for the appellant. Mr R Douglas QC for the respondent. Solicitors: Suthers & Taylor for the appellant. Dempseys for the respondent. Hearing date: 01/06/1995. -- 1 of 17 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 215 of 1994. Brisbane Before Pincus J.A. Davies J.A. McPherson J.A. [Chandler v. Bailey] BETWEEN: ALLAN KEITH CHANDLER (Plaintiff) Respondent AND: JOHN PAUL BAILEY (Defendant) Appellant REASONS FOR JUDGMENT - THE COURT Judgment delivered 15/03/1996 This is an appeal against an assessment of quantum by Kiefel J in a personal injury case, the appellant defendant asserting that in a number of respects the trial judge has over-estimated the plaintiff's loss. The plaintiff, then aged almost 21, and being at the time about to complete his apprenticeship as a diesel fitter, was injured in 1988 in a motor vehicle accident. He had trouble with his neck and back after the accident and received treatment over the following few years, but the main problem was not precisely diagnosed until November 1993, when disc degeneration low in his back was found. This degeneration was not caused by the accident; there was a pre-existing pathological condition which had been symptomless and the plaintiff's injury caused a major aggravation of that condition. The plaintiff -- 2 of 17 -- 3 continued to work as a diesel fitter until March 1991 when he became an insurance salesman, but he was sacked from that job in March 1993 and apart from working for a short period as a car salesman, had not worked from March 1993 until the trial. In the 12 to 18 months before the trial, which took place in August 1994, his symptoms had got noticeably worse and he had become a "virtual invalid". Medical opinion was that the plaintiff had developed an anxiety state related to the litigation and that this condition would be likely to respond to treatment, which would bring the plaintiff back to the state he was in about March 1992 - i.e. before the symptoms worsened with the approach of the trial. The judge held in effect that the plaintiff left his work as a diesel fitter in March 1991 because of genuine difficulty he was having in coping with it, on account of his injury. Her Honour held that the decision to begin work as an insurance salesman was "if not wholly caused by the difficulty he was having at work, significantly influenced by it". Her Honour appeared to accept that the plaintiff would, after treatment, largely get rid of the psychological problems which had led to an exacerbation of his symptoms in the 12 to 18 months before trial. It was held in effect that the plaintiff's ability as a diesel fitter would be limited as a result of the accident and that his ability as a salesman should not be too highly estimated. The learned judge's primary factual findings which have been mentioned are supported by the evidence, and were not challenged. The record contains, not all the evidence, but those parts which the parties have thought relevant. The appellant's main complaint relates to the assessment of future economic loss. The judge took the view that the plaintiff, 27 years of age at the trial, was likely to have worked (but for the accident) until the age of 47, as a diesel fitter. There was found to be a loss of 20 years work as a diesel fitter, but because of other features which were mentioned a period of 26 years economic loss was allowed. The rate of loss was assessed, prima facie, at $450 per week. The prima facie figure was -- 3 of 17 -- 4 reduced by 30 per cent to allow for the contingency that the plaintiff might obtain some work, despite his disability. The difficulties with the approach taken are discussed below. The appellant's outline of argument, which is succinct and so drawn as to make for ready comprehension, complains of a number of specific errors; these complaints were elaborated upon in oral argument. Mathematical Error 1. There has been, it is conceded, a mathematical mistake in calculating future economic loss. A loss of $450 per week for 26 years, discounted, produces $341,550 which when reduced by 30 per cent gives $239,085; the judge awarded $60,515 more than that figure, apparently because of a misreading of the 5% discount table. Dr Douglas’ Evidence 2. The second complaint made by the defendant also relates to the assessment of future economic loss; the defendant says that in arriving at the figure of 20 years which has been mentioned above the judge mistook the effect of evidence on which her Honour relied, namely that of Dr Gavin Douglas. Some analysis of the evidence is needed, in order to determine whether or not the defendant's argument is valid. The evidence of two of the specialists called, Drs. Lowe and Douglas, dealt with the question whether the plaintiff, even if he had not suffered the injury which led to this litigation, would have become unfit for heavy work; both doctors thought that would have occurred, but they differed as to the likely age at which it would have occurred. -- 4 of 17 -- 5 In Dr Lowe's report of 23 March 1992 he said that the plaintiff would continue "to suffer pain for a good period of time, maybe five or 10 years. There is a tendency for spontaneous resolution of symptoms however". In a report of 10 February 1994 Dr Lowe said: " I believe the collision . . . has aggravated an underlying tendency to degeneration. I do not believe he would have had this pain at this stage of his life had he not have had the accident. I believe however, that he does have some underlying disc degeneration and he probably would have had some pain whether he did have the accident or not. However, I do not think it would have been as severe as this at this stage of his life, as before that he worked with no pain as a diesel fitter. " In his last report, of 12 July 1994, Dr Lowe said that: " I believe, because he had this degeneration at these 2 levels [of his lower back] and a tendency to back ache, he would not have worked as a diesel fitter for the rest of his life whether he had the car accident or not. However, I do believe the car accident has had a significant accelerating effect on this process. If I had to make an educated guess of when I thought that disc degeneration like this with a tendency towards back ache would have caused him to cease work as a diesel fitter without a major traumatic incident, such as the car accident, I would say around about aged 40. " Had the trial judge accepted the evidence of Dr Lowe, in this respect, the assessment of future economic loss must necessarily have been considerably less than the sum fixed; only 13 years would have passed, on Dr Lowe's evidence, rather than the 20 years the judge fixed, before the plaintiff, even if there had been no accident, would have become unfit for heavy work. Dr Gavin Douglas took a different view, more favourable to the plaintiff's case. He said in his evidence that " . . . at some time in the future he was going to become incapable of heavy work . . . Now, I usually say around the age of 55. Because of this man's age it could possibly be earlier . . . Or I go a bit further, say probably be earlier, say 50" . -- 5 of 17 -- 6 It appeared, then, that Dr Douglas' final view was that the plaintiff would probably have become incapable of heavy work at about 50 years of age. The trial judge said: " With respect to the calculation of future economic loss the plaintiff would have continued as a diesel-fitter. Given the limited explanation for either of the ages identified by Drs. Lowe and Douglas, which I infer are based upon their experience and observations, an appropriate course might be to adopt the mean (age 47) ". That was in fact the age her Honour adopted for the purposes of calculation, although she extended the period of economic loss to 26 years, that extension being the subject of a separate argument advanced on behalf of the defendant and dealt with below. At another place in the reasons the judge attributes to Dr Douglas the opinion that "people with this condition can continue to work till age 55". That was the view which Dr Douglas expressed, as a general proposition, but he seems to have resiled from it when giving his oral evidence and fastened on a probable age of 50 for the particular plaintiff being considered. The judge added two estimates (40 and 55 years) the mean of which is 47½ years and rounded that down to 47 years. In our respectful opinion it appears to be true, as the defendant submits, that her Honour must have overlooked Dr Douglas' modification of his general view; the method which the judge adopted should have produced an average of 40 years and 50 years - i.e. 45 years. In consequence, the proper period to have been taken, using the method of analysis adopted by the judge, was 18 years and not 20 years, being the difference between the age at trial, 27 years, and the average of the predictions of the age at which the plaintiff would become unfit for heavy work. In the result, the defendant's second contention, that the period of acceleration of the plaintiff's -- 6 of 17 -- 7 incapacity for heavy work should be reduced from 20 years to 18 years, succeeds; 24 years (i.e. that 18 years plus the 6 years discussed below) at $450 per week, reduced by 30%, produces a loss of $229,635. The basis of the 30% reduction was, in effect, that the judge thought the plaintiff had a 30% chance of obtaining work. Six Years Economic Loss 3. Next, the defendant attacks the allowance of an additional six years economic loss referred to above; her Honour added six years to the period of acceleration just mentioned, solely, it appears, on the basis appearing from the following passage in the reasons: " The plaintiff has some abilities as a salesman and has in the past presented as an adaptable and ambitious person, a position to which he may well return after treatment. These factors are in addition to the skills he has in respect of which there is some, but not shown to be high, prospect of employment or of enhancing his areas of employment. Logically though, these features also indicate that he may well have continued working in some capacity beyond age forty-seven. In these circumstances I have extended the period of economic loss to twenty-six years. I have then reduced that figure for the contingency that he may obtain work which I have allowed at thirty percent ($299,600). ". The defendant's argument was that, assuming the uninjured plaintiff was the kind of man who would have worked for some years after he ceased to be fit for heavy work - i.e. after the age of 47 - there was no finding, nor any evidence to justify a finding, that this plaintiff will, because of his injury, be less able at the age of 47 (or 45) to do light work than he would have been if he had never suffered an injury. The passage set out above appears to be written on the assumption that a finding that, if not injured, the plaintiff would have worked beyond age 47 justified an extra allowance for economic loss; but that can be so only if it is found that the plaintiff’s injury has reduced the earning capacity the plaintiff could otherwise have enjoyed at about age 47. -- 7 of 17 -- 8 Apart from the broad argument that the judge was not "in error in deciding 53 was the notional age of retirement" the plaintiff's counsel were unable to point to any consideration justifying the additional six years. What the allowance involves is the proposition that after the age at which, even if uninjured, the plaintiff would have become unfit for heavy work, he should be compensated by a sum equivalent to six years loss of $450 per week, less 30% "for the contingency that he may obtain work". To put the matter in concrete terms, the allowance made assumes that from age 47 to age 53 - a period when, even if uninjured, he would have been unfit for heavy work - the plaintiff will, because of his injury, be likely to earn only 30% of what he would otherwise have earned. That diminution in earnings would presumably be due to back trouble. That could only be justified on the basis that the plaintiff will, even from age 47 on, be substantially less employable than he would have been if uninjured. We were referred to no evidence to support such a view, nor can we find any such evidence in the record. The medical specialists on whose evidence the judge appears to have relied - Drs. Lowe and Douglas and Professor James - all discussed the future of the plaintiff's condition, but the terms of that discussion were not such as to justify a finding that, in addition to bringing forward the date at which the plaintiff would, uninjured, have become unfit for heavy work, it was likely that the injury made the plaintiff much less able to earn income, in work which is not heavy work. The matter is complicated by the circumstance that at the date of trial, according to evidence which the judge appears to have accepted, the plaintiff was complaining of symptoms which to a considerable extent were psychogenic; her Honour seems to have adopted the view put forward by -- 8 of 17 -- 9 Professor James that, after a period of treatment the substantial worsening of symptoms in the period of 12 to 18 months before the trial would probably be reversed. Her Honour noted: " [the plaintiff's] present situation is that of a virtual invalid spending most of his day lying down. The orthopaedic surgeons were of the view that his level of reaction and some of the additional symptoms which he has noted could not be related to the injury to his back and Dr James, psychiatrist, explained that the plaintiff has developed an anxiety state as a result of which these psychogenic symptoms have appeared and that the upsurge in anxiety is largely attributable to the prolonged period during which his injuries have been contested and, consequently, the attention focused upon the symptoms and level of disability. He does however consider that the plaintiff is still likely to be responsive to psychiatric or psychological treatment . . . It is, he considers, highly likely to be successful. He considers that the plaintiff will probably return to the state he first observed in March 1992. At this time the plaintiff was an agent for Suncorp. He will however be somewhat more prone to psychological problems in the future although the treatment to be undertaken should diminish that. Dr Douglas considers that when these factors are removed logically he would be able to do the work of a diesel-fitter which he managed until March 1991, an opinion based on the fact that he was able to carry out the work. ". The judge, after discussing the plaintiff’s personality, said that she "considered the observable discomfort of the plaintiff to be real", but nevertheless her Honour seems to have acted on the view that there were psychogenic factors, as the doctors said, leading to "his perception of a greater degree of pain and the taking of narcotic drugs". Her Honour also apparently accepted that the plaintiff would "probably return to his physical status of 1991". That is, damages were we think assessed on the basis that, so far from it being established that the condition of the plaintiff was likely to worsen, it was thought that he would improve with treatment; the reference to 1991 is, as it seems to us, to the time at which the plaintiff said he could "no longer cope with the pain he suffered consequent upon a working day" and undertook work as a salesman for Suncorp. Although he had a promising start, he was asked to leave in March 1993. Her Honour noted: "During this period problems he had with literacy and, to an extent, the exercise of judgment in selling hadn't been observed". One must add that March 1993 may well fall within the period of 12 to 18 months before the trial during which, according to Professor James' -- 9 of 17 -- 10 evidence, psychogenic factors were dominant in causing the plaintiff's symptoms. It appears to us that this Court must proceed on the basis that the trial judge was of the view that although the plaintiff's disability would be likely to lessen substantially after treatment of his psychological problems he would, nevertheless, because of difficulty with his lower back, have little earning capacity. That may be thought to be a rather generous view of the evidence, when one considers that of the two orthopaedic specialists, one, Dr Lowe, said in March 1992 that the plaintiff would continue to suffer pain "for a good period of time, maybe five or ten years", and the other, Dr Douglas, said that the injury was "probably not very severe". But the defendant does not attack the judgment insofar as it is based on the view that until the age when the plaintiff would, even if not injured, have become unfit for heavy work, he has lost the major part of his earning capacity; the defendant says that there was no evidence to justify a finding of loss of earning capacity after that age. In our opinion the defendant's argument must be accepted. The award compensates the plaintiff for the years during which, but for the injury, he would have been able to engage in heavy work. But it does not appear to us that the plaintiff adduced evidence to establish a basis for carrying the loss beyond that point. During the years for which under the award, as varied, the plaintiff is compensated for his economic loss - from age 27 to age 45 - the plaintiff has at least as great an opportunity as he would have had, if uninjured, to fit himself for some occupation which does not involve heavy lifting. Inability to perform that lifting appears to have been the substantial reason for his having had to give up work as a diesel fitter. The judge has held, in effect, that the plaintiff would probably have worked on for 6 years after becoming unfit to do the job of a diesel fitter; but it does not follow that he is to be -- 10 of 17 -- 11 compensated on the basis that his injury will make him unable, or less able, to do light work during those 6 years. No witness gave evidence to that effect, nor evidence from which that inference could properly be drawn. The result is that future economic loss should be confined to the period of acceleration of inability to do heavy work - 18 years - rather than the 26 years allowed. That brings the figure for loss of future earnings to $194,985. Griffiths v. Kerkemeyer The trial judge separately assessed damages under this heading in respect of past loss and future loss. As to past loss, her Honour said: " Part of the plaintiff’s loss is his ability to carry out household duties. With respect to the past I allow 3.5 hours per week, the rate set out in schedule C/1 to Mr Petersen’s report ($8,767.00) ". This passage is, it appears, based on a misunderstanding of the effect of the evidence. The report of Mr Petersen is not in the record, but we were told it consists merely of calculations made by an accountant, based on assumptions. The only source which can be found for the 3.5 hours per week is the evidence of an occupational therapist Ms Coles, who reported in 1992 that the plaintiff said his wife "massages him now for about half an hour or so a day". It appears to be true, as the appellant submitted, that the allowance made by the judge of 3.5 hours per week was based on an impression that there was evidence of a requirement of 3.5 hours per week work in respect of household duties; that is not so. Further, the statement reported by Ms Coles was backed up neither by evidence given by the plaintiff nor that of his wife. The only evidence in the record from either on the subject consists in the following question and answer: -- 11 of 17 -- 12 " You mentioned that your wife massages you sometimes?-- Mmm. " It is plain that the answer given by the plaintiff could not support a finding that his injury made necessary 3.5 hours per week of massage in the years before trial, or that his wife ordinarily massaged him for that period - leaving aside the difficulty that the judge’s allowance was made in respect of household duties, rather than massage. We should add that in some instances it may be right to treat statements made by a plaintiff to an expert as supporting a damages claim, although not confirmed by anything the plaintiff said in evidence; but that will ordinarily be so only where the defendant has expressly or implicitly assented to that course, waiving confirmation of what was said to the expert. Here, there is no ground for thinking there was any such waiver; the allegations made by the expert Ms Coles relevant to the Griffiths v. Kerkemeyer claim must be treated as hearsay i.e. as no evidence of the truth of what was stated to Ms Coles. With respect to future loss, the learned judge allowed 5 hours per week under this heading until age 70. The time - 5 hours per week - was not selected on the basis of any particular piece of evidence, but appears to have been the judge’s view of a proper allowance, for domestic work and gardening, based on the whole of the evidence. There is no explanation for the selection of the age of 70, rather than the age of 47 mentioned above. It will be necessary to come to the details of what the record discloses about housework and gardening; but it is first desirable to consider the legal basis of allowances under this heading. Griffith v. Kerkemeyer (1977) 139 C.L.R. 161 decided that the value of the services rendered necessary by an injured plaintiff’s condition can be recovered, even if the services are rendered gratuitously. The -- 12 of 17 -- 13 precise nature of the allowance was further analysed in Van Gervan v. Fenton (1992) 175 C.L.R. 327, in which there is no majority judgment. We do not propose to quote at length what was said, but will attempt to set out the effect of three of the judgments, so far as relevant to the present case. In the principal judgment, that of Mason CJ, Toohey and McHugh JJ, it was said that the defendant is not entitled to have taken into account in its favour the fact that some of the services the subject of the claim were provided to the plaintiff by his wife before the accident (338). Brennan J said that when the plaintiff and the care provider "are living together as husband and wife or in some other personal and permanent relationship" one should give the defendant credit for minor services which would have been provided, injury or no injury, "as an incident of an antecedent personal relationship" between the plaintiff and the care giver "provided the plaintiff is able to offer services to the care provider in return". There is nothing in the reasons of Mason CJ, Toohey and McHugh JJ to support the idea that the plaintiff’s entitlement should be reduced on the ground Brennan J suggests. Gaudron J rejected the contention that the defendant could have any benefit from the fact that the care giver provided domestic services before the plaintiff was injured. (350) It is unnecessary to attempt to epitomise the reasons of Deane and Dawson JJ, because there appears to be a majority, consisting in Mason CJ, Toohey J, McHugh J and Gaudron J, in favour of the view that it does not avail a defendant to show that some of the services claimed for would have been performed for the plaintiff even had he or she not been injured. The result is that if before injury a plaintiff, exhibiting "incompetence and selfishness of a very high order", (Van Gervan at 350) was content to leave all the housework to his or her spouse, then the circumstance that the reason for the -- 13 of 17 -- 14 plaintiff not doing his or her fair share has changed makes the value of the housework recoverable; that is, the injured plaintiff is put in funds, by reason of his or her injury, to pay for the work which was formerly done gratuitously by his or her spouse - without any obligation to hand the money over to the worker. But it is only if the wife’s work is made necessary because the injured husband cannot perform it that damages are recoverable. Applying this in the present case, it appears to us that the plaintiff was entitled to recover the value of so much of his wife’s work in the house and garden as can reasonably be attributed to his inability, or reduced ability, to do work of that kind. The evidence on that subject is scant. The judge appears, as has been pointed out above, to have accepted evidence called on behalf of the plaintiff, that after psychiatric or psychological treatment the plaintiff will probably improve substantially compared with his condition at trial, which was affected by an anxiety state associated with the litigation. At the trial the plaintiff presented as a virtually complete invalid, but on the evidence which the judge seems to have accepted, his underlying physical condition did not make him so. The effect of the medical evidence was that the aggravation of his pre-existing back condition made him unsuited to heavy work or more particularly work involving heavy lifting. Dr Douglas said, in effect, that one would assume that - " he does have some organic back pain which would be sufficient to prevent his engaging in very strenuous work. When I say very strenuous, I mean work that involves repeated bending, maintaining a stooped position, or repeated heavy lifting of - talking of amounts probably 50 to 20 kilograms ". Dr Lowe, the orthopaedic surgeon who saw the plaintiff on behalf of his solicitors, did not make any comparable comments, but his reports give the impression that he thought the plaintiff’s condition to be more disabling than did Dr Douglas; on the other hand, as has been pointed out, Dr Lowe expressed -- 14 of 17 -- 15 an opinion less favourable to the plaintiff than that of Dr Douglas, as to the age at which even if uninjured the plaintiff would have been incapable of doing his former work. Dr Lowe said that the plaintiff would have had some pain whether he had the accident or not, but it would not have been "as severe as this at this stage of his life . . . ". In his evidence the plaintiff said that his wife shampoos his hair, at times takes off his jeans and put on his socks and (in effect) does the bulk of the housework. The plaintiff was asked whether he could do housework at bench height or above and answered, "Not all the time, no.". When asked why he washed dishes only very rarely, he explained that he spent most of his time lying down and when he got up liked to get out of the house. It is impossible, on the evidence, to treat this pattern of behaviour as other than part of the psychological disability referred to above. The plaintiff’s wife said that the plaintiff went fishing "probably once every three weeks", that she did the housework and the gardening, other than watering; however, she said that the plaintiff occasionally cooked dinner. As we understand the law, what might be called "ordinary household duties" are relevant for Griffiths v. Kerkemeyer purposes to the extent that they constitute services to the plaintiff made necessary by his or her injury. A problem in the present case is to gain a clear idea of the extent to which the plaintiff is physically disabled from performing household services and the extent to which his apparent disability - continually lying in bed being the most pronounced manifestation - is psychogenic and, on the findings, probably temporary. There is also the difficulty that there are no time estimates to -- 15 of 17 -- 16 work from and a question about the period over which the loss in question will continue. As has been mentioned, the judge allowed Griffiths v. Kerkemeyer damages up to the age of 70; there is in our view no basis in the evidence for doing so. Such damages should be allowed to the same age as the loss of earnings, referred to above. The plaintiff should be compensated under Griffiths v. Kerkemeyer in respect of such household duties and gardening as his disability makes it necessary that his wife perform for him; on the evidence, these are principally duties involving heavy lifting and also, perhaps, prolonged bending or twisting. There is no basis in the evidence, as it seems to us, for assessing damages under this head on the footing that the plaintiff is physically unable to do light household work such as cooking and washing up. It would be impossible to make any calculation with pretensions to precision. On these facts, we would allow $20,000 under the Griffiths v. Kerkemeyer head, covering the period before and after the trial, in lieu of the sum of $54,767 assessed by the judge. Medication The judge allowed $3,000 for "future medical expenses" and it was said that this is slightly over- estimated. Not because the appellant’s complaint has no substance, but because the amount involved is relatively tiny, we do not propose to discuss the evidence relating to it or explain our reasons for accepting, as we do, the respondent’s argument to the effect that on the whole of the relevant evidence the judge’s allowance should not be disturbed. -- 16 of 17 -- 17 Superannuation The defendant contended that the amount of $11,790 allowed for loss of superannuation entitlements should be reduced, as a consequence of reduction of the period of future economic loss to 18 years. That is so and the amount, with some rounding up, works out to $9,376.50 as the defendant contends. To that there need be added an allowance for lost benefits relating to pre-trial income loss; on the basis that the plaintiff was out of work for 18 months, the amount to be added is $1,346.55. The damages, then, are: Pain and suffering $ 45,000.00 Interest on part thereof $ 2,400.00 Past economic loss $ 50,774.00 Future economic loss $194,985.00 Loss of superannuation benefits $ 10,723.05 Future medical expenses $ 3,000.00 Special damages $ 6,847.00 Griffiths v. Kerkemeyer $ 20,000.00 The appeal is allowed with costs, and a judgment for $333,729 substituted for that given below. -- 17 of 17 --