Besse v Nielsen [1990] QSC 413

10 , 20 30 40 50 60 (Issued subject to correction upon revision.) IN THE SUPREME COURT OF QUEENSLAND \J CIVIL JURISDICTION No. 1415 of 1988 BEFORE MR. JUSTICE MACKENZIE BRISBANE, 10 DECEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,court Reporting Bureau.) BETWEEN: MICHAEL ERNST BESSE -and- ERIK BRUNO NIELSEN JUDGMENT Plaintiff Defendant HIS HONOUR: In this matter I give judgment for the plaintiff in the sum of $144,289.93, with costs including any reserve costs to be taxed. I-· publish my reasons. -Govt. Printer, Old. gfh 1 10 20 30 40 50 60 -- 1 of 12 -- IN THE SUPREME COURT OF QUEENSLAND No. 1415 of 1988 Before Mr. Justice Mackenzie BETWEEN: MICHAEL ERNST BESSE Plaintiff ERIK BRUNO NIELSEN Defendant JUDGMENT - MACKENZIE J. Delivered the 10th day of December, 1990. CATCHWORDS: ~ Counsel: Solicitors: B. Hoare for plaintiff W.M. Boulton for defendant Mcinnes Wilson & Jensen for plaintiff C.A. Sciacca & Associates for defendant Hearing date: 9 November, 1990. -- 2 of 12 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: MICHAEL ERNST BESSE ERIK BRUNO NIELSEN JUDGMENT - MACKENZIE J. No. 1415 of 1988 Plaintiff Defendant Delivered the 10th day of December, 1990. The plaintiff, who was born on 22nd June, 1962, was the driver of a Mazda sedan which was proceeding south on the Bruce Highway at Torbanlea on 5th January, 1988 when a Holden station wagon, driven by the defendant, turned right across its path causing a collision. The plaintiff suffered serious injuries in the incident. Liability is admitted and the only question that I must determine is quantum. After completing Year 12 at secondary school, the plaintiff attended the Queensland Institute of Technology where he studied for an Associate Diploma in Engineering. He gave evidence that he had topped first year but did not pursue further studies there because he took an apprenticeship with Australian Airlines with a view to becoming an aircraft engineer. There is no doubt that he displayed aptitude for this occupation and became a licensed engineer on the day he completed his four year apprenticeship. During his apprenticeship, but not as an essential part of the training, he obtained a restricted private pilot's licence in .. -- 3 of 12 -- 2 August 1981 and an unrestricted private pilot's licence in January 1982. The plaintiff suffered a serious closed head injury in the accident, with retrograde amnesia for about a half an hour before and post-traumatic amnesia for about two weeks after the accident. A CAT scan showed haematomas within the brain, especially in the right frontal lobe. Subsequent tests suggested that he has significant right frontotemporal lobe dysfunction which would be consistent with his evidence as to his memory problems. He suffered no epilepsy but was placed on medication to minimise the risk of that occurring. He also suf fer'ed a broken nose w~ich has left him with a minor cosmetic defect and some discomfort when he wears glasses. According to the medical evidence, the injury to the nose may also have aggravated a pre-existing inflammation in the nose. He also suffered a chest injury and minor crush fractures of T12';. L1 and L2 vertebrae. According to Dr. Donald Watson, this will lead to accelerated degenerative changes and has reduced his overall efficiency by 15 per cent. He also suffered dental damage in the accident. The plaintiff lost a lot of weight and a lot of his strength during his recuperation. He made a good recovery. I am satisfied he is fairly stoic and not a person to complain unnecessarily. At the time of the accident the plaintiff was an active man, engaging in water-skiing at which he had achieved a high recreational standard, moto-cross, hang-gliding and squash on a non-competition basis. He does not participate in mote-cross or hang-gliding any more because of medical advice that he should -- 4 of 12 -- 3 not participate because of the risk of further head injuries, which he should avoid. He has tried water-skiing but finds that it aggravates his back pain. He has played squash occasionally since the accident and does not find that to be a problem. He has also been snow-skiing on one occasion and coped with that without as much discomfort as he thought he would suffer. As to his flying activities, he has had to give them up because he has had his licence cancelled as a consequence of his head injuries. The risk that he may suffer epileptic episodes is the reason for this. The consequences of his inability to participate in flying is a major issue so far as the assessment of damages is concerned. This is because the plaintiff has given evidence that he had an ambition to progress from being a ground • engineer to a flight engineer and obtain a commercial pilot's licence. He had hoped that this would lead to a First Officer's position with Australian Airlines arfa then to an airline captain's position. It was common ground that the proper basis for compensating for loss arising from the destruction of this ambition was to award a sum for the loss of the chance to pursue such a career. However, the extent of such compensation was very much in dispute. Mr. Boulton subrni tted that a "modest global sum" was all that should be given. On the other hand, Mr. Hoare submitted that a sum "well in excess of six figures" should be assessed, having regard to the level of potential earnings in the career that the plaintiff had hoped to follow. It is therefore necessary to look in some detail at the evidence for the purpose -- 5 of 12 -- 4 of assessing the plaintiff's prospects of progressing in the way that he had hoped. According to his log book, the plaintiff had accumulated just under 130 hours flying experience at the time of the accident. About half of this time accumulated during 1981 when he was training for his licence. In the year before the accident, 1987, he accumulated 13 hours, the last flight being about four months before the accident. In 1986 he accumulated nine hours and throughout the combined period of 1984 and 1985, about the same. The rest were accumulated during 1982 and 1983. I accept his evidence that he enjoyed flying but it can be seen that he engaged in it infrequently once he had finished his training for the endorsements that he has. He said that there was a cost factor in this, as there was in his not going on to obtain an endorsement for dual engined aircraft. He said that at that time one had to have 175 hours of> flying to attempt that endorsement. In 1986 he applied to Australian Airlines for entry to training as a flight engineer. Nothing came of that application and he updated it in 1987. It appears from the plaintiff's evidence that he was not at that time qualified for that training but he hoped to gain additional qualifications early in 1988. There is evidence that there was competition for such positions. About 10 were taken on at a time representing about 10 per cent of the applicants. Another factor to be noted is that, of the aircraft used by Australian Airlines, the A300 Airbus and the 727 operate with a three man cockpit crew. The 737s have a two man cockpit crew. -- 6 of 12 -- 5 Another model Airbus used by Ansett operates with a cockpit crew of two and the 767, with three. In 1984 an agreement had been reached with the flight engineers' industrial organisation in respect of the eventual phasing out of flight engineers when they became redundant. However, as the evidence indicates, Australian Airlines was still taking on flight engineers and, as the plaintiff said,- once he be·came a flight ,engineer he intended to pursue his training for a commercial pilot's licence and qualify as a First Officer. He expected to have progressed to First Officer before flight engineers became redundant. The evidence is that a First Officer's gross salary is about $70,000.00 per annum, compared with $55,000.00 for a flight engineer and $50,000.00 for a ground engineer. Captains of the 737 earn $103,000.00 on the basis of flying 55 hours per month but in practice they average about 80 to 100 hours per month. 1 ' The base rate for captains increases for'°'1:he 727 and the Airbus. There is evidence from a First Officer, Mr. Collins, ·who had begun an aircraft engineering apprenticeship in 1980 and had begun training as a flight engineer in 1986, that he took four and a half years to become a First Officer from the commencement of his training as a flight engineer and that while the period was unpredictable, he expected to be a First Officer for about 10 years before progressing to captain. He had 1200 flying hours at the time when he became a First Officer, a small percentage of which were on twin-engined aircraft. He had also undertaken the necessary studies for his commercial and senior commercial licences and had undergone flight training for his commercial licence and his command instrument rating. He also got an -- 7 of 12 -- 6 instructor rating as well. He said that if someone were to come into employment with Australian Airlines from outside, bypassing the flight engineer stage, (as is possible), the minimum requirement would be a senior commercial licence, a command instrument rating and "several hundred hours flying experience". This is a case where the plaintiff's claim is for loss of a chance to break into the lucrative career of airline pilot. What I must do is assess the value of this chance, as best I can, on the evidence before me. This process is not often easy but this case is made even more complex by the extent of the variables one of which is the greatly enhanced income if he were successful. As Barwick C.J. said in Wade v. Allsopp (1976) 10 A.L.R. 353 at 354, "It is easy to paint a glowing prospect and to forget the hard realities". I am satisfied that the plaintiff is a person capable of motivating himself to achieve goals when 6 he decides to do so. That is in his favour. However, as against this, there are a number of other factors. One is the lack of evidence of an effort to build up flying hours that one might expect if pursuit of the suggested career path in as short a time as possible was imminent. It is apparent that time was spent in other recreational pursuits and perhaps visiting his girlfriend, who is now his wife, in Bundaberg. As I have said, he said there were financial constraints about pursuing his training. There is nothing to suggest that those would be any less once he was married (cf. transcript p. 35 11. 20-30). The evidence indicates that he would need considerably more training if he were to become a First Officer. -- 8 of 12 -- I ) ~ 7 There is also the factor that he had not gained any indication that he would be accepted into flight engineer training, despite his two applications. I should treat them, however, as manifesting an intention to attempt to progress towards his ambition. There is the uncertainty as to th~ future of flight engineers. Mr. Browning, a flight engineer with no aspirations to be a pilot who was called by the plaintiff, suggested a probable upper limit of 10 years on his career in Australia as a flight engineer. While there is evidence from Mr. Collins as to the time that he would expect to take to progress through the various stages, allowance must be made for the possibility that conditions in the aviation industry might not allow progress at that rate. That raises the question whether a person becoming a flight engineer would necessarily progress to First Officer at all, given the limited time span over which the position of flight engin'@er is likely to exist. All of these factors illustrate that while there should be some compensation for the loss of the chance to progress in the airline industry, there must be a heavy discounting because of the uncertainties. There is, however, another aspect of loss of future earning capacity. The plaintiff suffered a serious closed head injury in the accident. He gave evidence that he is now unable to absorb and retain information as well as he was able to before the accident. This is a detriment when he is working because he needs to refer to written material to a greater degree in relation to new syst'ems than he does in respect of things tha·t he had learned before the accident, which he still retains well ,· -- 9 of 12 -- 8 in his memory . In addition, he does not perform as well in examinations as he did before. When new types of engines and other systems come into operation, it is necessary to pass examinations on them. He also suffers headaches which cause him discomfort for substantial periods of his working time. He gave evidence that his present foreman is benevolent and allows him to go and lie down whenever possible. He avoids losing time from work in this way. He also said that he is less confident in his work because of his memory problem and this manifests itself in a reluctance to certify that work has been done, if he can avoid doing so. In addition, he feels unable to engage in heavy work to the same extent as before the accident. He is concerned that while the heavier kinds of maintenance work are now done in Melbourne, there is a possibility that some may in the future be done in ,6. Brisbane. He feels he may not be able to cope with this. He does not suggest that he would then be unemployable. There are instructors' positions in the organisation but they are substantially less remunerative than for a working ground engineer. In all of the circumstances, I am satisfied that the chance that the plaintiff may have progressed to more remunerative employment in the airline industry is not so remote that it falls outside the scope of what should be compensated for. I must also consider the possibility that the plaintiff may in the future be unable to carry on in his present occupation and may take less remunerative work. On the evidence this also lies in the realms of possibility but is not likely in the short to medium term. -- 10 of 12 -- 9 In my view the proper approach is to which has regard to these factors, both of which represent scenarios that are by no means definite. I must, of course, avoid compensating twice for factors that would be relevant both to pain, suffering and loss of amenities and to future loss of earning capacity. Because there are substantial uncertainties involved, even allowing that the theoretical loss is high, I propose to award a relatively modest sum. under this head. I award $75,000.00 Because of the risk of epilepsy, his headaches, and other pain that he suffers, he is on constant medication. However, the level of this medication is still under review by Dr. Heazlewood. The plaintiff had a history of migraine prior to the accident and this complicates the position. However, Dr. Heazlewood says that the plaintiff now also suffers from a different kind of headache .6 attributable to the head injury. Dr. Heazlewood thought at least 7 5 per cent of · headaches were of this type. Because the medication is still under review, the estimate of the cost of future medication is somewhat uncertain. However, it is unlikely to be less than $15.00 per month. For future medication I award $4,000.00. The plaintiff also suffered dental problems as a result of the accident. The cost of future dental work is agreed at $16,460.00. There was agreement on the amounts to be awarded for special damages. Special damages (including a component for sick leave used after the accident) were agreed at $10,362.20. The interest component on that is, by agreement, $967.73. -- 11 of 12 -- 10 In respect of pain, suffering and loss of amenities, I award $35,000.00. Of this, $15,000.00 will be for past pain, suffering and loss. Interest on that component will be $2,500.00. Adding these sums together, the total amount of damages is $144,289.93. I give judgment for the plaintiff for that sum. That sum is considerably below the jurisdictional limit of the District Court as it has stood since last year. That being the case, I have to consider the form of order for costs that I ought to make. I have finally concluded that because of the wide range of variables in the case, which at their upper limits would have exceeded the jurisdiction of the District Court, I should not treat the case as one which should, as a matter of course, have gone to the District Court. Accordingly, the defendant will be ordered to pay the • plaintiff's costs, including any reserved costs, to be taxed. -- 12 of 12 --