Casey v Pearson Bridge (Qld) Pty Ltd [1992] QCA 372

[1992] QCA 372 CASEY v PEARSON BRIDGE (QLD) PTY LTD COURT: SUPREME COURT OF QUEENSLAND COURT OF APPEAL THE PRESIDENT, MR JUSTICE DAVIES and MR JUSTICE PINCUS Appeal No 134 of 1992 Delivered: 2 November 1992 #DATE 02:11:1992 CWDS: Measure of Appeal. Applt/Employer appeals against judgment in favour of respondent in personal injuries action - whether award for past economic loss justifiable - whether difference significant enough to warrant interference. JUDGE1: JUDGMENT OF THE COURT The appellant has appealed against a judgment in favour of the respondent delivered on 27 May 1992 whereby the respondent was awarded $178,661.00 damages for personal injuries together with the taxed costs of the action. The appellant is the respondent's employer and the appeal concerns both liability and the quantum of the damages awarded to the respondent. The Court did not call upon the respondent in relation to the issue of liability, and little need be said on the subject. At the time when he was injured, the respondent was engaged in a manoeuvre which was, in the circumstances, very risky. He was required to transfer from a vessel to a platform constructed off shore near Abbott Point north of Bowen. It was necessary to step from a "pulpit" exit facility mounted on the bow of the vessel onto a scrambling net hanging from the platform. To do so safely, it was necessary to judge when the vessel's bow was at the top of its rise on the incoming wave. At the time, there were substantial winds and significant waves with some variation in wave size. The respondent stepped from the pulpit too early and was struck by the vessel as it continued to rise with the wave. The trial judge accepted expert evidence that the appellant "should have had in place a system which required trained observers who would be in attendance and supervise the transfer of each workman, giving appropriate instructions if necessary." He was entitled to make these findings and to conclude that, in consequence, the appellant was negligent. It is by no means easy to deal with the remainder of the appeal because of the brevity of the findings which were made. The respondent was 40 years of age at the date of the accident on 21 April 1983 and 49 years of age at the date of the trial which concluded on 19 March 1992. According to the respondent, the vessel hit him hard on the left side of his ribs and twisted his body around the net. He suffered pain in the upper part of the body and in the spine. When he was first able to see Dr. Watson, an expert in rehabilitative medicine specialising in spinal problems, about three months after the accident, he was complaining of pain in the cervical, mid dorsal and lumbar areas of the spine. The respondent received workers compensation payments until October 1983. He then opened his own spray painting and panel beating business which he sold in September 1985, following which he opened a coffee lounge which he operated till January -- 1 of 4 -- 1986. Apart from that, he was unemployed in the nine years between the accident and the trial. It is desirable to set out a number of passages from the reasons for judgment below. Speaking of the respondent, the primary judge said: "He has no formal qualifications, but from his work history and other evidence, ..., it is clear that he is very proficient in a variety of activities which would usually be carried out by people such as carpenters, painters, mechanics and panel beaters. He was before the accident also active in a variety of recreations. ... On his appearance in court, the plaintiff was constantly stooped and used a stick. The plaintiff's complaints and the proposition that they were caused by his accident on the scramble net were accepted by the medical witnesses, Dr Lewis and Dr Douglas, who are orthopaedic surgeons, and Dr Watson, until they viewed the videos ... . Those videos, in my view, seriously flaw the picture which was presented to them and in evidence by the plaintiff. They range in date from 1987 to 1992 and show the plaintiff in occupations such as driving sprint cars and saloon cars in races, doing carpentry work on a catamaran, handling ultralight aircraft, and being concerned in what appears to have been an exhibition of ultralight aircraft in the Flinders Mall with a considerable amount of walking and standing. The Plaintiff also trained in flying ultralight aircraft for some time. The evidence is to the effect that flying an ultralight aircraft is usually a fairly rough business because of up-winds which prevail at the low heights at which they are flown. So far as the videos are concerned, Dr. Douglas gave his impressions on what he saw on them in a report dated 13 April 1992, which I set out, because they conveniently reflect my impressions - '... My conclusion from viewing all these tapes is that he probably had some low back disability but it is not as severe as he indicated to me at the time of my examination. It would probably be sufficient to prevent his engaging in heavy labouring work.' Dr Lewis also saw the videos, but think it is fair to say that he was not positive as to what effect one should give to them and he expressed no positive conclusion. So far as Dr Watson is concerned, he said that the videos showed that the Plaintiff's appearance was that of a person who is less disabled than he had thought the plaintiff was, but his opinion was that the condition of a person such as the plaintiff can fluctuate considerably from time to time and that he had seen the plaintiff on occasions when he showed little or no symptoms referable to spinal problems and on occasions when he was completely disabled. ... . ... ... ... . The evidence of the witnesses for the defendant and the viewing of the video show, in my view, that the plaintiff at times is capable of a wide variety of activities. On the other hand, I am satisfied from the videos and the evidence of the witnesses for the plaintiff, including Dr Watson, that the activities which he does perform are not activities involving substantial strain on his back and that he is usually not able to perform them for substantial periods of time. I am also satisfied that he is substantially disabled for considerable periods. The problem is as to his capacity for work. I would agree with Dr Watson that it is not practical to consider that anybody would employ him full-time. -- 2 of 4 -- On the other hand, he is plainly competent in a variety of fields, and my conclusion is that he should be regarded as being capable of part-time work, or work on his own behalf which he can perform at his own pace. The damages will be assessed accordingly ... . Apart from the effect of what I have said, the material as to damages is a long way from being satisfactory. ... I turn to assessments under the various heads. The first is loss of wages to the present. In relation to this, the plaintiff's work history shows that during his working life, between his leaving school and the time of his accident, which was about 27 years, he was engaged in over 20 different jobs, the longest period being for five years and most of the others being for one year or less. One thinks that these various changes of occupations must have been accompanied by various periods of unemployment. In addition to this, it was pointed that his income tax returns showed that over the previous few years, if their contents are to be taken as accurate, he was in work for something less than half the time. I must also take into account the findings which I have already made as to his capabilities. The claim is for $140,000 spread over nine years which appears to be based on $300 net per week. All I can do is to make discount which I think is appropriate, and the amount which I allow is $70,000. ... So far as the future is concerned, I take ten years at $150 per week, this bringing up $61,000. ..." The appellant argues that the components for past and future economic loss, and those for future medication ($16,000.00) and general damages ($45,000.00) are all manifestly excessive. The material passages in the reasons for judgment with respect to future medication and general damages were simply as follows: "There is a claim for future medication amounting to $16,000.00. In relation to this, the evidence is meagre, but in the absence of any questions on these matters I feel bound to allow the claim. For future medication I allow $16,000.00. ... I assess general damages in the sum of $45,000.00." While there seems insufficient justification for interfering with these two items individually, the impression that each at least borders on the excessive is a material consideration when dealing with the matter to which the appellant's more substantive attacks were directed, namely economic loss. The particular difficulty in determining the appeal in relation to both past and future economic loss is that there is no exposition of the reasoning relating to critical elements such as the "appropriate" discount in respect of past earnings or the basis for taking "ten years at $150.00 per week" as a measure of future loss. No findings were made concerning such matters as the proportion of the time for which the respondent would have worked but for the accident, what he would have earned or what he is now capable of earning. The claim for $140,000.00 spread over nine years to which reference is made in connection with the claim for past economic loss is essentially based upon premises that, but for his injuries, the respondent would have earned $305.00 per week nett from the date of the accident to the 1st May 1990 and $390.70 per week from the 2nd May 1990 to the 10th February 1992, adjusted to take account of some profits and losses made by the respondent in his panel beating and coffee lounge businesses between October 1983 and January 1986. There are some difficulties with the figures upon which the total of approximately $140,000.00 is based; for example, it is unclear whether all the profits from the panel beating business have been brought to account. More fundamentally, even assuming the weekly rates selected by the respondent are appropriate, his claim is based upon the premise that he would have been -- 3 of 4 -- in full time employment throughout those nine years. His previous work history totally negates such a conclusion, but the state of the evidence, including suggested errors in his income tax returns and plain errors in other details given in the respondent's quantum statement concerning his previous employment history, makes it very difficult indeed to determine what amount the plaintiff would have earned during those nine years had he not been injured. Finally, of course, there is the issue of what he might have earned despite his injuries, at least in the final six years between the closure of the coffee lounge and the trial, during which he carried out no gainful employment despite his capacity to work part- time or on his behalf and at his own pace. The correct approach to assessing the respondent/s past economic loss seems to us to place on one side the period for October 1983 to January 1986 when he conducted panel beating and a coffee shop business with varying degrees of success and to look at the two periods when he was out of work; when he was on Workers Compensation from the date of the accident (21.04.83) to October 1983 (say 28 weeks at $305.00 per week) and from 5 January 1986 to 10 February 1992 (224 weeks at $305.00 per week and 91 weeks at $390.70). The total of these amounts is approximately $112,000.00. Even if it is accepted that, but for the accidents, the respondent would have worked 60% of the time, the amount reduces to $67,200.00. If his residual earning capacity is taken as at least $100.00 per week, another $24,300.00 is deducted, being approximately $43,000.00, a reduction of $27,000.00 from the figure arrived at by the primary judge. A broadly similar approach would not result in a greatly different figure for future economic loss from that which was assessed at the trial. If the respondent's earning capacity over the 10 years allowed by the judge would have been $400.00 per week for the accident and he would have worked only 60% of the time and has a residual earning capacity of $100.00 per week, his loss is $140.00 per week, not the $150.00 per week selected by the primary judge. In these circumstances, this component should be left stand. While the overall result is that the award will still be high, the only interference warranted is to reduce the past economic loss, and hence the total award, by $27,000.00. ORDER: The appeal is allowed and the judgment below set aside. In lieu thereof, judgment is given for the respondent against the appellant for $151,661.00 with the costs of the action to be taxed. The respondent must pay half of the taxed costs of the appeal. Representation: Counsel for the appellant: LA White Solicitors: Messrs. Cooper Grace and Ward as town agents for Messrs. Nehmer Davenport Dean McKee for appellant Counsel for the respondent: JR Webb Solicitors for the respondent: Messrs. Roberts Leu and North -- 4 of 4 --