Australia Meat Holdings Pty Ltd v McRoberts

[1998] QCA 69

IN THE COURT OF APPEAL	[1998] QCA 069
SUPREME COURT OF QUEENSLAND

Appeal No. 9295 of 1997

Brisbane

[Aust. Meat Holdings P/L v. McRoberts]

BETWEEN:

AUSTRALIA MEAT HOLDINGS PTY. LIMITED

(ACN 011 062 338)

Appellant

AND:

CIMERRON JAMES McROBERTS

Respondent

Pincus J.A. Davies J.A. Ambrose J.

Judgment delivered 28 April 1998

Judgment of the Court

APPEAL ALLOWED. JUDGMENT BELOW SET ASIDE. TOTAL DAMAGES ASSESSED AT $84,556.69, INCLUDING FUTURE ECONOMIC LOSS ASSESSED AT $50,000.00. ORDERED THAT JUDGMENT BE GIVEN FOR RESPONDENT FOR $77,695.62 WITH COSTS INCLUDING RESERVED COSTS. RESPONDENT TO PAY APPELLANT'S COSTS OF THIS APPEAL.

CATCHWORDS:	ASSESSMENT OF DAMAGES - Future economic loss - injury to shoulder - absence of evidence of respondent's prospects of promotion - what the proper assessment of future economic loss should be in light of reduced capacity to do heavy labouring work.
Counsel:	Mr. P. W. Hackett for the appellant Mr. G. R. Mullins for the respondent
Solicitors:	Cleary & Lee for the appellant Shine Roche McGowan for the respondent
Hearing Date:	24 April 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9295 of 1997

Brisbane

Before Pincus J.A. Davies J.A. Ambrose J.

[Aust. Meat Holdings P/L v. McRoberts]

BETWEEN:

AUSTRALIA MEAT HOLDINGS PTY. LIMITED

(ACN 011 062 338)

Appellant

AND:

CIMERRON JAMES McROBERTS

Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 April 1998

The appellant, who was the defendant in the action below, appeals against part only of the

judgment given against it in the District Court on 17 September 1997 for damages for personal injuries.

It, the appellant, was the employer of the respondent who was injured in the course of his employment

as a labourer at the appellant's abattoir on 23 December 1993. The learned trial Judge held that his

injuries were caused by the negligence of the appellant and there is no appeal against that finding. The

learned trial Judge then assessed damages at $154,556.69 and gave judgment for the respondent for

$146,903.62 together with interest of $792.00 after deducting a sum to be refunded to Workcover.

The appellant's appeal is, in effect, only against the assessment of one component of those damages, an amount of $120,000.00 assessed for future economic loss.

At the time of his injury the respondent was just three days short of his seventeenth birthday.

He was 20 by the time of trial. He left school at the end of 1991, that is at the end of his grade 10 year

and, after some initial part time work, commenced work with K. R. Darling Downs in February 1992

as a general labourer. He was there for two months when he was laid off because of a downturn in

business. He commenced work as a labourer with the appellant in May 1992 so he had been employed

by it for a little over a year and a half at the time of his injury.

His substantial injury was to his right shoulder. He slipped and fell whilst standing on a pile of

bones beside a conveyer belt. As he fell his right arm was caught, close to the shoulder, on a low

barrier beside the conveyer belt, thereby breaking his fall. He had immediate pain in his right shoulder

but continued at work for some hours using his left hand as much as possible. His right hand was his

dominant hand. He did not go to the doctor for three days hoping that his condition would settle. On

the third day however he went to see his general practitioner, Dr. Carey, who noted his complaints of

pain in the shoulder and the prominence of his right scapula. After the Christmas break he returned to

work and in fact he continued working for the appellant until April 1997, that is for a little less than three

and a half years from the date of the accident.

The respondent's main injury consisted of damage to the long thoracic nerve which has resulted

in paralysis of the serratus anterior muscle. It is unlikely that this condition will recover. He was seen

by two orthopaedic surgeons, Dr. Anderson on the appellant's behalf and Dr. Pentis on his own behalf.

The former described that muscle as an important muscle that controls the scapula, holding it against

the chest wall to allow movement of the shoulder joint. It is also, he said, a powerful muscle used in

pushing the arm forward. When paralysed it means that the ability to lift the arm up is diminished in

terms of power and range. He thought that the respondent had a 20 percent loss of the efficient function of his right arm. Dr. Pentis described this condition in similar terms but thought that the respondent

might also have some rotator cuff problems. He thought that the respondent should abstain from

overhead use and from strenuous use of his right arm. He thought that the disability represented a 25

percent loss of function of the arm. The learned trial Judge, in the end, discounted the rotator cuff

problem but, apart from that, there is little difference between the doctors as to the extent of the

respondent's disability or its consequences. His Honour noted that the respondent was trying to

become left handed, particularly when attempting to do something which involved raising his right arm.

When he returned to work after the Christmas break the respondent continued in his former

duties which were general labouring duties. Part of these involved picking up scraps of meat and fat

from the floor, placing them in a tub, taking the tub to the conveyer belt, lifting it and tipping the meat

and fat onto the conveyer belt. He found this lifting difficult and troublesome. He found he did not have

the strength that he formerly had to do this, particularly the lifting and tipping process. He also found

difficulty cutting with the knife towards the end of the day. His arm felt as if it was pulling all the time

and it would cause some pain.

In January 1995 he received a promotion to the job of packer. It involved constant lifting, that

is lifting meat off a conveyer belt onto another table, packing meat in boxes which included lifting pieces

of meat, packed in plastic, from about eye level to be packed in boxes. There was a lot more lifting

involved and rapid movement involving his shoulders. Consequently between 1995 and 1997 when he

finally left he took some time off work because of problems in his shoulder.

The learned trial Judge found that the respondent's difficulty in coping with this job was

understandable in light of the medical evidence and that he no doubt suffered more pain in his shoulder

when he was performing this work. It may be inferred from his Honour's findings about the difficulties which the respondent had in his work that his Honour concluded that his ceasing work in April 1997

was due to his difficulties in performing it because of his shoulder disability. His Honour said: "I think that the difficulties that the plaintiff had in the course of his employment until he stopped work as a meat worker served to confirm that the plaintiff is as a result of this injury unsuited to the relative and heavy demanding work required of a meat worker. The fact that he was able to persevere with it for so long suggests however that it is not far beyond his capacity, which in turn suggests that activities which were perhaps not all that much less demanding would not be beyond him."

His Honour's reference to the work of a meat worker was plainly a reference to the work of

a packer which the respondent was performing when he ceased to work for the appellant.

The learned trial Judge appears to have derived some support for his conclusion from the fact

that the respondent was still able, after his injury, to engage in some sporting activity although not to the

extent that he had before. He was a keen, and apparently quite competent footballer and boxer. He

continued to train for boxing after his accident and indeed had one professional fight, consisting of three

one minute rounds, some time in the second half of 1994. But he has not boxed since then although he

has done some light sparring work. He has also played one or two games of football since the accident

but not, apparently, a full game or on a regular basis.

When the respondent finished work with the appellant in April 1997 he was earning about

$320.00 nett per week doing work with which, his Honour found, he could not quite cope. His Honour

then said that, doing the best he could, he would conclude that the plaintiff had a residual earning

capacity of the order of $300.00 per week.

It was, in our view, reasonable for his Honour to take the view that the respondent's residual

earning capacity, at the time of trial about five months after he had ceased working for the appellant,

was something less than the amount he was earning with the appellant. He was unskilled and it is

reasonable to infer that, for the sort of work he was capable of doing with his disability, he would earn something less than that which he was earning attempting to do quite heavy labouring work which, as

his Honour found, he was incapable of performing on a continuous basis. Indeed his Honour would

have been entitled to conclude that the respondent's earning capacity was substantially less than

$320.00 per week because he was at an increased risk of having periods of unemployment due to an

increased difficulty in obtaining employment and of accepting and retaining all employment which may

be offered to him.

The respondent said that, before he was injured, his aim as an employee was to "get to the top,

be a boner". He said that of the two other workers still employed by the appellant who started with

him, both were now boning. One of those, Jason Sutton, gave evidence. He tendered his pay slip

which showed that he was then earning $550.00 odd a week which his Honour reduced to $540.00

because it may have included work on a public holiday.

However there is no evidence of the work of a boner, whether it is more or less physically

demanding than that which the respondent was doing at the time he ceased working for the appellant.

Nor is there any evidence as to what prospects the respondent may have had of promotion to that job

had he not been injured. It is therefore impossible to conclude that he lost the chance of becoming a

boner because of his injury.

Nevertheless it appears that the learned trial Judge arrived at his assessment of loss of earning

capacity on the assumption that the respondent lost that chance because of his injury. His Honour took

the difference between $540.00 per week and $300.00 per week over a 40 year period and reduced

that for some future unemployment and the vicissitudes of life. This resulted in a nett sum of

$240,000.00. His Honour then assessed loss of future earning capacity at one-half that sum. This was

no doubt his assessment of the loss of a chance of becoming a boner and thereby earning at that higher
rate for the rest of his working life.

The error in using a boner's nett income in arriving at the respondent's loss of earning capacity

is that which we have already mentioned; the absence of any evidence of what a boner did, in particular

that the work was beyond the respondent's physical capacity; and the absence of evidence indicating

that, even if the respondent had not been injured, there was any real prospect that he would have

become a boner. Indeed the only evidence relevant to the second of these was against a conclusion that

there was any such prospect. He had a criminal record which indicated convictions for assault, arson

and attempted false pretences and consequently anti-social activity; and, more specifically, he had been

"chipped" at work on a number of occasions and, it appears, resented the authority being exercised over

him by his superior. These together may cause one to doubt his prospects of promotion or even of

retaining his employment with the appellant.

It follows, in our view, with respect, that the learned trial Judge was wrong in assessing loss of

future earning capacity on the basis that the respondent had lost the chance of becoming a boner.

Plainly, nevertheless, the respondent was entitled to some amount for loss of earning capacity. Indeed

the contrary was not submitted. But once the prospect of his becoming a boner is left out of account,

any award for this component of his damages must, in our view, be substantially less than $120,000.00.

Assessment of such sums is always difficult especially where, in this case, one is left to assess a global

sum for a reduced capacity to do heavy labouring work. In our view the sum of $50,000.00 would

adequately compensate the respondent for this component of his damages.

We would therefore allow the appeal, set aside the judgment given below, assess $50,000.00

for future economic loss and $84,556.69 for the total of damages and give judgment for the respondent

for $77,695.62 with costs including reserved costs. The respondent should however pay the appellant's
costs of this appeal.