Collins v King & Sons Pty Ltd [1992] QCA 44

IN THE COURT OF APPEAL [1992] QCA 044 SUPREME COURT OF QUEENSLAND No. 391 of 1988 Before the Court of Appeal The President Mr Justice Davies J.A. Mr Justice Shepherdson BETWEEN: ANTHONY WILLIAM COLLINS Respondent - and - KING & SONS PTY. LTD. Appellant JUDGMENT OF THE COURT Delivered the 1st day of April, 1992 This is an appeal against an award of damages to the respondent who was injured in the course of his employment. The trial judge awarded the respondent $216,039.72, and the appellant contends that that award "is beyond relevant limits" substantially because the assessment is said to be erroneous in relation to components included for pre-trial and future economic loss and associated interest. The case for the appellant substantially depends upon a single proposition, namely, that the trial judge erred in a critical finding which formed the basis for his assessment of both pre-trial and future economic loss. In his reasons for judgment, he said: "The plaintiff's counsel produced a schedule (Ex.9) (based upon the plaintiff's work records with the defendant, and the evidence of Mr Bess, a union representative) to calculate a sum for lost wages up to -- 1 of 7 -- 2 the date of trial. It amounts to approximately $77,000. No criticism was made by the defendant's counsel of the calculations in Ex.9, but it was submitted that there should be a substantial discount. The first reason advanced was that the plaintiff's work history prior to joining the defendant was, to say the least, patchy. He might well have had periods away from work either by choice or by necessity. Second, and more seriously advanced was the submission that I should find that he should have obtained some work during this period. ... " After reviewing evidence concerning the respondent's ability to work, his omission to seek work or rehabilitation and job opportunities available to him, the trial judge decided that "some small discount ought to be made to his damages for lost income to date. I allow, under that head, $70,000." Then, after making provision for interest in relation to the respondent's past economic loss less the total of the weekly compensation benefits which were paid to the respondent for part of the period prior to the hearing, the trial judge continued: "In calculating future economic loss, it is convenient to start with the most recent net weekly pay which he would be receiving were he still employed by the defendant. Taking into account average overtime work, the employer's superannuation contribution, holiday loading, a net weekly after tax figure, rounded off, is $400.00. Given the state of the evidence about his congenital spinal condition I think it reasonable to take a further period of ten years during which he might have been expected to earn income before the natural degeneration overtook the effects of the accident on his spine. As I said in relation to past economic loss, there must be some discounting to take into account the possibility of his choosing to leave his employment or being forced to. There is also the possibility that during the future ten year period which I am considering, as his spinal stenosis gradually worsened, he could have suffered a disabling injury to his back. There is also the fact that he might have chosen to embark on a business venture such as nut growing which may or may not have been successful. Lastly, he does have a small residual earning capacity. All told it seems to me that I ought -- 2 of 7 -- 3 to make a substantial discount and I propose to settle on a net weekly figure of $300.00 on which to project future lost income. Capitalised at 5% the assessed amount for future lost earnings is, rounded off, $124,000.00." The appellant criticised the findings in relation to the respondent's earning capacity pre trial and submitted that a 10% discount was insufficient. However, His Honour rightly took into account the appellant's practical difficulty in obtaining and holding any work, the fact that unemployment had been high throughout this period and the fact that jobs which the respondent could do would have been few and the applicants for them many. In the light of those facts we do not think that a discount of 10% was too little. The crux of the appellants case was its criticism of the use made by the trial judge of Ex.9, which formed the basis for both the figure of $77,000 for lost income up to the date of trial and the rounded-off net weekly after tax figure of $400.00 which formed the basis for the calculation of future economic loss. Shortly stated, the point sought to be made by the appellant was that Ex.9 was hypothetical and that the details which it contained failed to take into account the respondent's actual work record while employed by the appellant for about 34 weeks prior to the accident, as set out in another exhibit, Ex.5. It was said that, when regard is had to Ex.5, it can be seen that although the respondent worked an average of 11.3 hours overtime during each week of his employment with the appellant, he did not always work a full week of ordinary time. Overtime was paid in respect of work outside normal working hours on any day even when the total hours worked in a week during normal working hours, did not amount to the ordinary weekly hours required. It was argued that, since Ex.9 was based upon the premise that the respondent worked both ordinary weekly hours plus 11.3 hours overtime per week on average, it did not provide a -- 3 of 7 -- 4 satisfactory starting point from which the trial judge could assess either past or future economic loss. Alternatively, the discounting adopted by the trial judge was for this reason also inadequate. The respondent sought to justify the trial judge's award by reference to various other factors, to which it is unnecessary to refer. It is a sufficient answer to the appellant's criticism of the use which the trial judge made of exhibit 9 to note two matters. Firstly, although Ex.5 indicates that there were weeks when the respondent did not work ordinary hours, he did work ordinary hours in most of the 34 weeks that he was employed by the respondent. It was open to the trial judge to use Ex.9 as a starting point and to apply a discount as he did. Although the discount which he applied in relation to the respondent's past economic loss was small as was recognised, that was more than compensated for by the comparatively large discount which applied in calculating future economic loss and the relatively brief period of ten years which was allowed to the respondent to earn future income given the medical evidence with respect to his future work prospects prior to the accident. Secondly, it seems that the point upon which the appellant has based its appeal to this Court was not really litigated in the Court below. It is difficult to find any serious attempt by the appellant to pursue, either in evidence or in cross-examination of the respondent or his witness Mr Bess, the matters which it now contends can be deduced from Ex.5, and the reasons for judgment indicate that the appellant sought to challenge Ex.9 on the basis of the respondent's "work history prior to joining" the appellant, but not his work record while he was employed by the appellant. -- 4 of 7 -- 5 It remains to mention that the appellant sought leave to amend its grounds of appeal to raise an additional point with respect to a small amount of interest awarded by the trial judge on the damages which he assessed for pain, suffering and loss of amenities prior to trial. Once again, the point had not been contested below and leave was refused. The appeal should be dismissed with costs. -- 5 of 7 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND No. 391 of 1988 Before the Court of Appeal The President Mr Justice Davies J.A. Mr Justice Shepherdson BETWEEN: ANTHONY WILLIAM COLLINS Respondent - and - KING & SONS PTY. LTD. Appellant JUDGMENT OF THE COURT Delivered the 1st day of April, 1992 MINUTE OF ORDER: Appeal dismissed with costs CATCHWORDS: DAMAGES - Personal injuries - appeal against assessment Counsel: Mr D.R.M. Murphy for the Appellant Mr R.A.I. Myers for the Respondent Solicitors: Messrs. Andersen and Co. for the Appellant Mr John O'Connor for the Respondent Hearing Date: 10th March, 1992 -- 6 of 7 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND No. 391 of 1988 BETWEEN: ANTHONY WILLIAM COLLINS (Plaintiff) Respondent - and - KING & SONS PTY. LTD. (Defendant) Appellant The President Mr Justice Davies Mr Justice Shepherdson Judgement of the Court delivered the 1st day of April, 1992 APPEAL DISMISSED WITH COSTS -- 7 of 7 --