Dodd v Minister for Education of Queensland [1990] QSCFC 43

y*' y' , 10 BO 40 50 60 f O' IN THE SUPREME COURT OF QUEENSLAND FULL COURT BEFORE: Mr. Justice Demack Mr. Justice McPherson Mr. Justice Williams BRISBANE, 28 JUNE 1990 Appeal No. 4 of 1990 REVISED COPIES ISSUED | Court Reporting Bureau F Date: ( 'll / 90 | (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 : JAMIE GRAHAM DODD (Plaintiff) - and - Respondent THE MINISTER FOR EDUCATION OF QUEENSLAND (Defendant) Appellant JUDGMENT MR. JUSTICE McPHERSON: My brother Demack has authorised me to say that in his opinion this appeal should be allowed v^ith: costs; , the judgment appealed from should be varied by deleting the sum of $100,000 and substituting the sum of $88,000, and also by substituting $8,000 in lieu of $20,000 as the sum in respect of which interest is to be awarded. In other respects the judgment should stand. I publish His Honour's reasons. I agree with ,the^orders proposed and with the reasons of His Honour. MR. JUSTICE WILLIAMS: I also agree with the orders proposed and with the reasons published by my "brother Demack. i 10 20 30 40 50 60 —Govt. Printer, Qld. 1 [1990] QSCFC 43 -- 1 of 14 -- IN THE SUPREME COURT OF QUEENSLAND APPEAL NO 4 OF 1990 FULL COURT BETWEEN: JAMIE GRAHAM DODD (Plaintiff) (Respondent) AND : THE MINISTER FOR EDUCATION OF QUEENSLAND (Defendant) (Appellant) DEMACK J MCPHERSON J WILLIAMS J Reasons for Judgment delivered by Demack J on 28th June, 1990 . McPherson J and Williams J agreeing with those reasons and with the Orders. "APPEAL ALLOWED WITH COSTS. THE JUDGMENT APPEALED FROM BE VARIED BY DELETING THE SUM OF $100,000 AND BY SUBSTITUTING IN LIEU THE SUM OF $88,000 AND BY SUBSTITUTING THE SUM OF $8,000 IN LIEU OF THE SUM OF $20000^ AS THE SUM IN RESPECT OF WHICH INTEREST IS TO BE AWARDED . OTHERWISE THE JUDGMENT SHALL STAND. -- 2 of 14 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 4 of 1990 Before the Full Court Mr. Justice Demack Mr. Justice McPherson Mr. Justice Williams BETWEEN : JAMIE GRAHAM DODD (Plaintiff) Respondent - and - THE MINISTER FOR EDUCATION OF QUEENSLAND (Defendant) Appellant JUDGMENT - DEMACK J. Delivered the ^ JtA, day of 1990. CATCHWORDS: Damages - Personal injuries - Appeal - One component in assessment unsupported by evidence - Whether reduction has substantial effect on total award. Counsel : R.W. Gotterson Q.C. with P.E. Nolan for appellant K.R. Geraghty for respondent Solicitors Crown Solicitor for appellant Messrs. Porter Hulett for respondent Hearing date: 13th June, 1990. -- 3 of 14 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN: Appeal No. 4 of 1990 JAMIE GRAHAM DODD (Plaintiff) Respondent - and - THE MINISTER FOR EDUCATION OF QUEENSLAND (Defendant) Appellant JUDGMENT - DEMACK J. Delivered the day of 1990. Jamie Dodd was born on 5th September, 1970. He was injured at school on 24th October, 1985. At the trial of his action for damages for negligence he was successful. He recovered $100,000.00 damages together with interest and costs. The Minister has appealed against the award of damages. The notice of appeal is drawn in an unusual way, being in these terms :- "The Defendant intends to appeal to the Supreme Court against the judgment of His Honour Judge Healy Q.C. given on the Fourteenth day of December, 1989 directing that the Plaintiff be awarded the sum of $30,000.00 for pain and suffering and loss of amenities, $20,000.00 for impaired capacity to earn income from the beginning of 1988 to the date of trial and $50,000.00 for impaired capacity to earn income in the future, together with interest on the sum of $10,000.00 at the rate of 6% per annum on and from 4th October, 1985 to the date of judgment, and on the sum of $20,000.00 at the rate of 6% per annum on and from 4th October, 1985 to the date of judgment, and that the Defendant pay the Plaintiff's costs of and incidental to the action to be taxed. On the grounds :- 1 . The learned Trial Judge erred in finding, in the absence of evidence that:- -- 4 of 14 -- 2 (a) That the Plaintiff has suffered an impaired capacity to earn income from the beginning of 1988 to the date of trial; (b) That the Plaintiff has suffered an impaired capacity to earn income in the future. 2. The learned Trial Judge's award of $30,000.00 for pain and suffering and loss of amenities is manifestly excessive and against the evidence and the weight of evidence. 3. The learned Trial Judge's award of $20,000.00 for past economic loss as a result of an impaired capacity to earn income from the beginning of 1988 to the date of trial is manifestly excessive and against the evidence and the weight of evidence. 4. The learned Trial Judge's award of $50,000.00 for future economic loss a result of an impaired capacity to earn income in the future is manifestly excessive and against the evidence and the weight of evidence." In fact, the judgment was for $100,000.00, not for the several sums which amount to $100,000.00. There is no reason to state the effect of the judgment in the notice of appeal other than according to its terms . The facts that are relevant to the assessment of damages were stated succinctly by the learned trial judge, Healy D.C.J., as follows (p. 99):- "On the second occasion that he jumped from the top of the scaffolding he landed with his left foot between the join of the mats and his right foot on the second mat in a crouching position. He immediately experienced great pain in his left ankle. He rolled onto his back and held his leg up. He was in a great deal of pain and when the ambulance arrived he was given oxygen. He was taken by ambulance to the hospital and had to wait for five hours at the hospital in great pain before he obtained treatment for his ankle. After he was examined and x-rayed at the hospital he was found to have a clinically fractured left ankle and an open reduction and internal fixation were performed. He was discharged after spending twelve days in hospital and was treated as an out patient until the 24th September, 1986 when he was readmitted -- 5 of 14 -- 3 for removal of his internal fixation devices. Following the reduction and fixation operation the plaintiff spent two days in hospital and experienced a very painful throbbing in his leg for which he was given digesics every four hours. He was immobilized during his twelve day stay in hospital. When he was discharged he was able to walk only with the use of crutches. The pain in his leg troubled him from the date of the operation until the week after he returned home from the hospital. He was on crutches for four weeks after his discharge from the hospital when he was able to put his weight on the leg with the aid of a plaster shoe. His injuries resulted in his being absent from school for about eight weeks . He returned to school in the last week of the final term. The plaintiff has been left with a constant throbbing in his left ankle. If he walks any distance the ankle will swell slightly. After hard physical exertion, the ankle will tighten up, become sore and on occasions the plaintiff experiences severe pain on the left side of his ankle. The plaintiff has scars about the injured ankle which will be permanent. The scar on the front of his leg was very painful to touch for some period of time and the scar on the inside of the leg is slightly numb. The plaintiff suffered a significant injury to the left ankle. Although the fracture has healed, there are degenerative changes and irregularity in the ankle joint. His symptoms of throbbing in the ankle and pain after exertion will increase with the passage of time and within fifteen to twenty years he will need to have another operation in the form of arthrodesis of the ankle. The cost of such an operation at present is about $3,000. Degenerative changes in the ankle caused by the injury over a period of fifteen to twenty years and the arthrodesis will leave him with a 30% loss of function of the left lower limb. At present he is suffering from a 12% loss of function of the left lower limb. The plaintiff left school at the end of 1987 with a T.E. score of 705, and he obtained his first job in February, 1988. In that job the plaintiff was required to lift 45 kilogram bags of nuts from a pallet and empty them into a hopper. The nuts were fed into cooking machines from the hopper and had to be kept at a certain level. Usually at the end of a day's work the plaintiff's ankle was sore and throbbing . The plaintiff was employed at this task on a casual basis and one day he was told by his employers that he -- 6 of 14 -- 4 would be called when they needed him. He did not hear from them again. He does not know why he was not kept in employment. Since he lost the job he has been on unemployment benefits and he has been seeking employment in process work and labouring work around the industrial area of Colmslie. When he fills out an application form for a job he must reveal that he has a problem with his ankle. The plaintiff feels that he could have undertaken any of the jobs he has applied for adequately. It is more likely than not that employers are not prepared to consider him because of his disability. When the matter car,/’ to trial the plaintiff had embarked upon a three week typing course in the hope that the ability to type will qualify him for a clerical position." His Honour subsequently made the following assessment of the plaintiff's damages (p. 102): — "The plaintiff is making a commendable effort to obtain employment as a clerk. However, the level of his T.E. Score is such that I think it more likely than not that he will be unable to obtain clerical work and will earn a living at physical work. Although his injured ankle will not preclude him from doing labouring jobs in the near and distant future he will be at a disadvantage in obtaining such employment on the open market. He sustained a significant injury of the left ankle. He has a 12% loss of function in the left leg at the moment and he must reveal the nature of his injury to prospective employers. Having regard to the medical reports, which I accept, he will be even more vulnerable on the open market in fifteen to twenty years time when he will have a 30% loss of function in his left leg. The plaintiff has not claimed special damages. Apart from an award for general damages for pain and suffering and loss of amenities he must be compensated for the impairment of capacity to earn income caused by the injury in the past and in the future. There are no figures upon which I can make a calculation, so I must adopt a broad brush approach and include in the award for general damages a component for past and future impairment of capacity to earn income. For pain and suffering and loss of amenities I award the plaintiff the sum of $30,000; $10,000 to the date of trial and $20,000 for the future. For impaired capacity to earn income from the beginning of 1988 to the date of trial I award the plaintiff the sum of $20,000. -- 7 of 14 -- 5 For impaired capacity to earn income in the future I award the plaintiff the sum of $50,000. I give judgment to the plaintiff in the sum of $100,000." There were two passages which were said to be unsupported by evidence. First, "It is more likely than not that employers are not prepared to consider him because of his disability". Secondly, "I think it more likely than not that he will be unable to obtain clerical work" . As to the first of these, Mr. Dodd said in evidence in chief that he had been looking for jobs mainly in process, work, labouring work around the industrial area of Colmslie. He said, "I feel that I would be quite adequate to do any of those jobs. But it is the employer" (p. 12). This was not pursued in cross-examination. It is, of course, evidence of slight weight, but it was for His Honour to weigh this evidence in the light of the conduct of the trial and of his impression of the plaintiff. It does not seem to me to be an issue which can now be challenged. It is abundantly clear that the issue that received by far the greatest attention was negligence. That does not mean that if there were deficiencies of proof in respect of damages these can be ignored. However, when an issue is raised, a finding can be made upon the evidence, unless the evidence is not credible. As to the second of these, Healy D.C.J. referred to Mr. Dodd's T.E. score of 705. He also referred to the work Mr. Dodd had done. There was evidence about Mr. Dodd's build, his excessive weight and his attempts at fitness. The picture that emerges is of a young man who is likely to spend his life -- 8 of 14 -- 6 involved in physical work. This is what Healy D.C.J. found, and that seems to me to be open on the evidence. In his summary of argument, Mr. Gotterson Q.C., for the appellant, referred to a passage in the advice of the Privy Council in Lai Wee Lian v. Singapore Bus (1978) Ltd. (1984) A.C. 729, at p. 735, which was applied in this Court in Keefe v. R.T. & D.M. Spring Ptv. Ltd. 0 985) 2 Qd.R. 363, at p. 366 (Williams J. ) . I should like to refer again to that passage, and, indeed, to somewhat more of the advice (p. 735):- "Before considering the facts of the appeal in more detail, their Lordships will refer to a question of general importance which arises. Mr. Rashid, on behalf of the respondent, submitted that the Court of Appeal had rightly held that what matters is the global figure and that, if the global figure was reasonable and fair, an appellate court should not increase or diminish a component item of damages on the basis that that item was either too low or excessive. He sought to support that contention by reference to the advice of this Board, delivered by Lord Diplock, in Paul v. Rendell (1981) 55 A.L.J.R. 371 . It is of course true that at the end of the day the total sum awarded is what matters to both parties. But that does not mean that the component items do not have to be separately considered. They are the necessary parts which make up the whole, and the only proper way of deciding whether the global award is too low or too high is by assessing the separate items and arriving at a fair total: see Lim Poh Choo v. Camden and Islington Area Health Authority [1980] A.C. 174 and Jamil bin Harun v. Yang Kamsiah [1984] 2 W.L.R. 668. Of course the assessing judge has a considerable range of choice because many of the variable elements in the damages cannot be precisely quantified. This applies notably to the plaintiff's loss of future earning capacity, the assessment of which 'involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured': see Paul v, Rendell (1981) 55 A.L.J.R. 371, 372. But if the award for loss of future earnings, or for any of the other items, is so far out of line with what the appellate court considers appropriate as to -- 9 of 14 -- 7 indicate that the assessing judge has erred in principle, and if the substitution of an appropriate award for that item would make a substantial alteration in the total award, then the appellate court has the duty to make the substitution and to alter the total accordingly." It seems to me to be clear, with respect, that that is a correct statement of an appellate court's function, but it is not, of course, an exhaustive statement. It does not, for exa..)’ le, refer to the situation where there is a clear error of law or fact which affects one of the component items in the award. Nor does it refer to mathematical errors which may need to be corrected, even if the effect is not substantial. However, in the case of the components for loss of future earning capacity and for pain and suffering, where there are many variable elements, in my opinion, the last part of the passage I have quoted needs to be kept firmly in mind. Not only must the component be out of line, but the substitution of an appropriate sum must make a substantial alteration in the total award . Here the appellant attacked the assessment for past economic loss and for loss of future earning capacity. I can see no basis for interfering with the latter amount, but I can see a basis for interfering with the former. This, then, raises a question of the impact this will have on the total award, and whether it involves such a substantial alteration as to call for the alteration of the award. First, it is necessary to refer to some additional parts of the evidence. Four medical reports and a hospital report were tendered by consent. No medical witnesses were called. One significant matter is the arthrodesis of the ankle. I have -- 10 of 14 -- 8 quoted the findings about this, namely that it will be needed within fifteen to twenty years. Judgment was delivered on 14th December, 1989, so that estimate is taken from that date. Dr. William Ryan examined the plaintiff at the request of the plaintiff's solicitors. He gave his first report on 4th March, 1987 and, at that time, said the arthrodesis would be needed in fifteen to twenty years. His next report was dated 6 th June, 1989, and the same time spax was given. As at March 1987, Mr. Dodd was aged sixteen and a half years, so on the first estimate of Dr. Ryan, the arthrodesis could have become necessary when he was thirty-one and a half years old. As at the date of judgment he was aged nineteen years, so the ages within which the arthrodesis was likely to be necessary were thirty-four and thirty-nine years. It would seem clear that once Mr. Dodd's ankle is fixed, he will have difficulties walking and working on uneven surfaces and climbing ladders. The earlier this happens, the more significant will be the reduction upon his ability to work. This is clearly a matter where the trial judge had a considerable range of choice. I have quoted the part of the reasons for judgment which refer to the scars on Mr. Dodd's ankle. The photographs which were tendered make it clear that the scar in the front of the ankle is just above the instep, and at a place where work boots could cause irritation. Again the assessment of the effect of these scars gave the trial judge a considerable range of choice. There was no evidence about Mr. Dodd's actual earnings during the period he worked. He started in February 1988, having left school at the end of 1987 upon completion of -- 11 of 14 -- 9 Grade 12. He did not say how long he worked, but Dr. Ryan said in June 1989, "He said he had been working as a labourer for six months". There was no evidence about rates of pay that a labourer might expect to receive. Again the trial judge was left with a considerable range of choice. Turning then to the components of the award which were challenged, in my opinion, the assessment of $50,000.00 for loss of future earning capacity is fully justified. Mr. Dodd is still only nineteen years old. Before he is forty years old, his left ankle will be fixed, and he will have a 30 per cent loss of function in the left leg. His present disability is 12 per cent loss of function, and over the next fifteen to twenty years this will painfully increase. This is bound to have a significant effect on his capacity to earn income. We were referred to awards in other cases, but none were on all fours with this. I am satisfied that the award is within the range that the evidence leaves open. However, the evidence does not, in my view, support the award for past economic loss. In this component, the range of choice is more limited. Mr. Dodd has been in receipt of unemployment benefits. The amount of these must be deducted from the loss of wages up to the trial: Evans v. Muller (1983) 151 C.L.R. 117. It seems to me unlikely that Mr. Dodd would have earned each week a net wage in excess of $250.00, and, possibly, it may have been less. His loss then is, at best, about $150.00 per week. The trial occurred in August 1989, so if he worked for six months from February 1988, his loss to the -- 12 of 14 -- 10 date of trial occurred over a period of twelve months. The best figure for this loss would be of the order of $8,000.00. Healy D.C.J. has not indicated how he arrived at the figure of $20,000.00, but, in my opinion, the evidence does not support it. It seems that the plaintiff made a favourable impression on the trial judge, and when this Court is faced with the task of substituting a sum for the one assessed this should be kept in mind. In my opinion the component for pre-trial economic loss should be $8,000.00. This would mean that the judgment should be reduced to $88,000.00. Is this a substantial alteration in the total award? I have had a great deal of difficulty with this question . The other components in the award are not overgenerous . It would seem to me to have been possible to have allowed an additional sum of about $3,500.00 to cover the future costs of the operation and the specific loss of income associated with it. That would be justified on the basis of a present sum of $1,500.00 for a future $3,000.00 operation and $2,000.00 for a future loss of about one-third of a year's income . However, as I understand the test that I have quoted, the relevant question is whether the substitution of an appropriate award for the item will make a substantial alteration in the total award. With some hesitation I have come to the conclusion that an affirmative answer is appropriate. In my opinion the judgment delivered on 14th December, 1989 should be varied by deleting the sum of $100,000.00, and by substituting in lieu the sum of $88,000.00, and that the sum of -- 13 of 14 -- $20,000.00 in respect of which interest was ordered be deleted and in lieu thereof the sum of $8,000.00 be inserted. Otherwise the judgment shall stand. There should be the further order that the respondent pay the appellant's costs of the appeal, to 11 be taxed. -- 14 of 14 --