Barr v Coonan's Tannery [1994] QCA 93

IN THE COURT OF APPEAL [1994] QCA 093 SUPREME COURT OF QUEENSLAND Appeal No. 196 of 1993 Brisbane [Barr v. Coonan's Tannery] BETWEEN: RUSSELL JOHN BARR Respondent/Plaintiff AND: COONAN'S TANNERY Appellant/Defendant Mr Justice McPherson Mr Justice Mackenzie Justice Kiefel Judgment delivered 21/04/1994 Reasons for Judgment of the Court APPEAL ALLOWED WITH COSTS TO BE TAXED. JUDGMENT IN THE DISTRICT COURT TOOWOOMBA IN THE SUM OF $90,394.90 WITH COSTS ON A SOLICITOR AND CLIENT BASIS SET ASIDE. IN LIEU THEREOF, JUDGMENT IN THE SUM OF $53,404-80 WITH COSTS TO BE TAXED. CATCHWORDS: QUANTUM - Negligence - Lateral right epicondylitis - Whether damages for pain and suffering and future economic loss excessive - Whether acute phase of condition continued for three years - Negative finding as to respondent's credibility. Counsel: S Williams Q.C. for appellant J Griffin Q.C. and J McGhee for respondent Solicitors: Hede & Byrne for appellant Greenhow & Yeates for respondent Hearing Date: 25 March, 1994 -- 1 of 7 -- THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 196 of 1993 Brisbane Before Mr Justice McPherson Mr Justice Mackenzie Justice Kiefel BETWEEN: RUSSELL JOHN BARR Respondent/Plaintiff AND: COONAN'S TANNERY Appellant/Defendant REASONS FOR JUDGMENT OF THE COURT Judgment delivered 21/04/1994 On 27 October, 1988 the respondent, during the course of his employment by the appellant, experienced pain in his right elbow while holding a hide at arms length after lifting it from a tanning pit. He was diagnosed as suffering from lateral right epicondylitis (commonly known as tennis elbow). The learned District Court judge found that the employer was negligent and assessed damages in the sum of $122,790 of which $32,395.20 was refundable to the Workers' Compensation Board. Individual components in respect of which there is complaint are - (a) Pain, suffering and loss of amenities $25,000 (b) Interest on pain suffering and loss of amenities (c) Past economic loss $45,000 (d) Interest on past economic loss and -- 2 of 7 -- 2 (e) Future economic loss $35,000 There is no doubt that the respondent suffered an episode of epicondylitis. The respondent gave evidence of substantial residual pain in the elbow with significant residual incapacities. The trial judge said that the picture the plaintiff presented by his demeanour and his sworn description of his capabilities was of a man with a virtually useless right arm. Videotape evidence demonstrated that, while the respondent was not photographed doing anything involving strenuous use of the arm, his condition was "quite unlike the picture he sought to paint ............. in Court and to the medical witnesses". The trial judge concluded that the plaintiff had set out to display himself as much more seriously incapacitated than he was and that, as he could not accept his evidence, he had to fall back on "the most probable scenario". He concluded that the plaintiff's condition was acute and because it did not respond to conservative treatment, reasonably called for surgery in mid 1989. He found that by October 1991, three years after the accident, the condition should have healed from its acute stage to its permanent stage when, on Dr Meibusch's evidence, the disability would have been 5 to 10 per cent of the arm. The grounds of appeal relating to pain and suffering and future economic loss attack the finding that the acute phase of the condition continued for three years. The evidence as to "the most probable scenario" is not as precise as one might hope. The issue is also clouded by the -- 3 of 7 -- 3 finding as to the respondent's credibility. There was evidence that the condition manifested itself with varying degrees of severity. The respondent had a relatively severe form for which surgery of the kind performed was not uncommon. Dr Meibusch described the disease in general terms as being very painful in the acute phase. He said the acute phase might last for about a year after which it reached a chronic state where the patient knew what he could do and what he could not do. He said: "It's what I term a nil all draw. The disease doesn't win and the patient doesn't win but they end up leading a pretty normal life. They adapt to it. It's not a disaster." Later he agreed with a suggestion that it was a "nuisance thing". He said: "......... that's what I tell my patients. It's sent to try your patience out. It will eventually reach a stage that you can live with it. MR McGHEE: You told us that in your reports. How long would that take do you think? What's your estimate?-- It's usually in the years. It's usually two, three years before they come to terms with their minimal disability." Dr Meibusch was asked how long, in the respondent's case, the acute phase lasted. He said that it would start to wane "a few months" after the operation (which occurred on 26 June, 1989). The learned trial judge asked him, "So -- 4 of 7 -- 4 18 months or so?". The doctor replied, "Yes, I think it would be a fair estimate of .... the most severe." Dr Geaney gave evidence it would take up to six months for new tissue to mature after the operation. It could take that period to determine whether the operation had been successful. He did not think that the respondent would have been able to work when he saw him in February, 1990. He said that his condition had remained stable for some months prior to July, 1992. Dr Geaney had not seen the video tape and these opinions must be viewed in the light of the finding as to credibility of the respondent. The other doctor called, Dr Curtis, was not asked to generalise about the disease. His difficulty in reconciling the lack of muscle wasting in the arm with the description of the pain upon examination in August, 1993 supports the learned trial Judge's finding as to credibility. There is reference in the evidence to a three year period but, analysing the evidence as a whole, we are not satisfied that it supports a finding that the relevant period for assessing the challenged component of past economic loss should be taken to be three years. We have come to the conclusion that when the evidence is read as a whole the appropriate period of incapacity was not more than 18 months from the accident. Elford v. FAI General Insurance Co Ltd (QLR 7 August, 1993) sets out the principle to be applied in deciding whether there is a basis for disturbing the judgment below. Having regard to the nature of the injury and the duration -- 5 of 7 -- 5 of its acute phase we think that the sum of $15,000, of which $10,000 should be treated as accruing in the past, is an appropriate award for pain, suffering and loss of amenities. In view of the reduction of the amount for pain, suffering and loss of amenities the interest component must be reduced. The appropriate interest on this component is $1,000. So far as past economic loss is concerned, allowing a period of 18 months at the rate found by the learned trial judge, with a proportional discount to that allowed by him, past economic loss is $22,500. The respondent was in receipt of Worker's Compensation payments in excess of this sum. Therefore, no interest should be allowed on this component. So far as future economic loss is concerned, approximately $42 per week for 30 years was allowed. There is no dispute that there is about 5-10 per cent residual disability in the arm. The respondent's capacity to work in labouring jobs is restricted to some degree by his condition. We are not persuaded that the award for future economic loss is excessive. The total amount of damages awarded in the District Court was $122,790. The reduction of $36,990, which we think should be made, is of such significance in an award of this size that the appeal should be allowed. The total sum of damages is assessed at $85,800. Of this sum $32,395.20 is refundable to the Workers' Compensation Board. Accordingly, judgment should be entered in the sum of -- 6 of 7 -- 6 $53,404.80. As this amount falls short of the amount which would entitle the respondent to the solicitor and client costs awarded below, the order made in the District Court for such costs should be set aside and in lieu thereof, an order for costs to be taxed should be made. The respondent is ordered to pay the appellant's costs of the appeal to be taxed. -- 7 of 7 --