Bennetts and Phillips v McLean

[1994] QCA 298

IN THE COURT OF APPEAL

[1994] QCA 298

SUPREME COURT OF QUEENSLAND

Appeal No. 16 of 1994.

Brisbane

[McLean v. Bennetts & Phillips]

BETWEEN:

GLEN BENNETTS and D PHILLIPS

(Defendants) Appellants

AND:

GORDON THOMAS McLEAN

(Plaintiff) Respondent

____________________________________________________________

_____

The President
Pincus J.A.

Davies J.A.

____________________________________________________________

_____

Judgment delivered 16/08/1994

Judgment of the Court
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APPEAL DISMISSED WITH COSTS TO BE TAXED.
____________________________________________________________

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CATCHWORDS:	DAMAGES - APPEAL - QUANTUM - Future Economic Loss - whether damages awarded for this component excessive - evidence of award rates taken into account - loss of superannuation benefit $5,000 -whether should be altered - very small component of overall award.
Elford v. FAI General Insurance Co. Ltd [1994] 1 Qd.R. 258.
Counsel:	Mr P C P Munro for the appellants. Mr M Grant-Taylor for the respondent.
Solicitors:	Quinlan Miller & Treston as town agents for Boyce Garrick Eastman for the appellants. Webb & Boland for the respondent.
Date of hearing:	8 August 1994.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 16 of 1994.

Brisbane

[McLean v. Bennetts & Phillips]

Before	The President Pincus J.A. Davies J.A.
BETWEEN:

GLEN BENNETTS and D PHILLIPS

(Defendants) Appellants

AND:

GORDON THOMAS McLEAN

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/08/94

This is an appeal by the defendants against a District Court judgment for damages for personal injuries. The respondent sued alleging that he had suffered injury in the course of his employment; liability was agreed on the basis that the respondent accepted responsibility for 10% of his loss.

The injury the respondent suffered was one to his lower back and it was incurred in the course of his work with the appellants as a bricklayer, about 6 December 1989. Some weeks later, in January 1990, the respondent was forced to give up work because of his injury. The respondent lost a substantial amount of income before the trial, which took place in December last year, and the trial judge fixed his damages for past economic loss at $34,500, a figure which is not now challenged. The judge assessed his future economic loss at $100,000 and that is the principal ground of attack upon the award. There is a lesser challenge, to a sum of $5,000 awarded for loss of superannuation benefits.

Mr Munro, who argued the case carefully on behalf of the appellants, did not assert that any specific identifiable error was made by the trial judge in arriving at the sum fixed for future economic loss; counsel contended, principally, that his Honour did not discount sufficiently for contingencies. The applicant was 36 years of age when injured and 40 at the time of the trial.

Medical opinion was that he is unlikely to go back to bricklaying or heavy physical work; he can however do light work. The judge formed the view that the respondent's evidence could be relied on and that he "understated to some degree in giving his evidence". Mr Munro did not challenge his Honour's finding in this respect.

The respondent is a qualified bricklayer, but from the time he completed his apprenticeship, in 1972, until he suffered his injury, he worked in his trade for only about six years; otherwise he worked as an airline porter, a storeman and packer, a counter salesman, a cleaner and in a mail order business. He had suffered from various ailments, including back pain, in the years prior to the accident with which the Court is concerned at present, but the pre- accident complaints were not of the same kind as that which is the subject of these proceedings. The judge found that the respondent did not before the accident have any back injury which would have affected his earning capacity as a bricklayer "other than to be occasionally troubled by aches and pains common enough amongst bricklayers". His Honour took the view that bricklaying and associated tasks place strain on the spine, increasing the likelihood of lower back injury.

Before the accident the respondent had, according to the judge's findings, the capacity to earn "quite well" as a bricklayer if he chose and bricklaying work was readily available. The judge thought that the respondent would but for the injury have worked as a bricklayer, but would also have worked in other jobs from time to time. In the six months prior to the accident the respondent worked about 26 or 27 hours a week, but since the accident he worked only as a chauffeur, in 1990 and 1991, earning fairly modest sums.

The judge took the view that the complainant, an intelligent man, could "theoretically re-train", but his Honour made no finding that he was likely to do so.

The judge had evidence from a Mr Hart, who employs subcontract bricklayers; there was also evidence of award rates. It is not quite clear what use his Honour made of these two sources of information. The award rate, plus leave loading and estimates of overtime and allowances, came to $410 per week nett. Mr Munro challenged the use of that figure, on the basis that one could not assume that the respondent would have earned enough from overtime to reach $410 per week. The judge said, after referring to the award rate:

"The other scenario based on the evidence of Mr
Hart, the employer of subcontract bricklayers,
demonstrates significantly higher nett earnings.
$180 per week to age 55 discounted at five percent
results in almost $100,000 and to age 60 in almost
$120,000. I indicate that in using $180 a week I
have allowed for the plaintiff's residual capacity
to earn and that he probably would not have worked
as a bricklayer all the time and for other
contingencies. There is nothing in the evidence
upon which to conclude he would have worked to age
55 or age 60...I assess damages at $100,000".

It appears to us that it is difficult to justify interference with the figure his Honour selected, of $180 per week. It was on any view substantially less than the sums the respondent was receiving immediately prior to his injury. In the eight weeks terminating on 24 November 1989 the respondent's nett earnings, apparently calculated as gross earnings less 20%, averaged over $380 per week. It was contended that, taking reasonable account of all the matters tending to produce a reduction of the future loss, such as the fact that the respondent had a substantial period of unemployment some years before the accident, and other periods of unemployment or short work, that he had throughout his working life worked other than as a bricklayer for much of the time, that he had suffered some injuries and strains at work (apparently not of a disabling kind) prior to the accident, and that he might be able now to obtain suitable employment not involving any heavy physical work, $180 per week could not be said to represent the result of a reasonable exercise of the judge's discretionary judgment.

In addition, Mr Munro contended that to make a calculation based on $180 per week until as late as age 55 was excessively generous to the respondent; it was argued that the assumption should have been made that the respondent would probably have ceased to work as a bricklayer before age 55.

It appears to us that the factor bearing upon these calculations which is most uncertain is the respondent's working future: will he be able to get a job for any substantial period of time? Keeping in mind that the respondent had been out of work for the whole of the two years prior to trial, 1992 and 1993, and that he was regarded as a genuine person, his Honour was entitled to take rather a pessimistic view of the respondent's residual earning capacity. He had no particular skill other than bricklaying, which he could no longer carry out - so much was conceded. Most of the work he had done other than bricklaying was of a distinctly physical kind: an example is portering. In fairness to the appellant, the judge was obliged to take into account the likelihood that for substantial periods of time the respondent would in future be able to obtain some light work, but it seems to us impossible to say that his Honour gave inadequate weight to that. A man entering his 40's who has been driven out of the only occupation in which he is skilled and is somewhat disabled is not, in present-day conditions, a person one could assume would be readily employable.

We have also come to the conclusion that the figure of 15 years which his Honour took, so as to treat the respondent as if he had given up work at the age of 55, is not one which can be attacked on the particular findings and on the evidence. The main basis of Mr Munro's attack on this aspect of the judgment was the evidence of Mr Hart, mentioned above, that the average retirement age of bricklayers is about 50 years. However, the evidence was that some worked substantially longer, and it was for the judge to make his own estimate of a fair span of years, taking into account not only the likely length of the respondent's working life as a bricklayer, but also that if not disabled he would have had more chance of obtaining some employment after the age of 55.

One has then, as indicated above, a case in which no specific error can be pointed to, but in which we are asked to accede to a submission that the calculation the judge has made in relation to future earnings is on the whole too generous to the respondent. We find ourselves unable to reach that conclusion; in a case in which much depended upon the judge's impression of the respondent (plainly a favourable one), it is impossible to conclude that his Honour's estimates were erroneous.

The only other point taken by Mr Munro was that the judge was in error in making an allowance of $5,000 for loss of superannuation benefits. It appears to us that his Honour arrived at that figure as a matter of pure estimation and not by way of any calculation. Mr Munro submitted that there was no evidence to support the figure; that is, in a sense, true since the only estimate to be found in the evidence is a very much higher sum. Even if one assumes, however, that the judge allowed too much for the superannuation benefits and should have allowed, say, only $2,000 instead of $5,000, then as appears to have been conceded by Mr Munro, this Court should not allow the appeal. That is so because of the practice established in the important case of Elford v. FAI General Insurance Company Limited decided in April 1992 but, regrettably, reported only recently: (1994) 1 Qd.R. 258. The total award here was over $150,000 and we could not alter it by such a small percentage as would result if we merely reduced the $5,000 superannuation benefits component somewhat. In any event, we are by no means convinced that the $5,000 estimate is substantially too high.

In the result, both the attacks made on the judge's conclusions fail and the appeal must be dismissed with costs.