Carida Pty Ltd v Watson

[1993] QCA 46

THE COURT OF APPEAL	[1993] QCA 046
SUPREME COURT OF QUEENSLAND

Appeal No. 231 of 1992

Brisbane
[Carida Pty Ltd v. Watson]

BETWEEN:

CARIDA PTY LTD

(First Defendant) Appellant

- and -

GLEN CROSBY WATSON

(Plaintiff) Respondent

The President

Mr Justice Derrington

Judgment of the Court delivered the 10th day of March 1993

Appeal allowed. Judgment below set aside. Judgment for the respondent in the sum of $90,138.70 and costs. Respondent to pay appellant's costs of appeal. Respondent to have certificate under Appeal Costs Fund Act 1973 in respect of costs ordered to be paid.

CATCHWORDS:
Damages - personal injury - loss of earning capacity - failure
to discount pre-trial component for contingencies -
unemployment apart from injury established - failure to reduce
pre-trial and post-trial components for travelling expenses -
travelling allowance included in figure used for income - total

reduction of $20,000 significant in award of $110,000.

Counsel:	K. Geraghty for the appellant R. Douglas for the respondent
Solicitors:	Hopgood and Ganim for the appellant Quinlan Miller and Treston for the respondent

Hearing date: 5 March 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 231 of 1992

Brisbane
[Carida Pty Ltd v. Watson]

BETWEEN:

CARIDA PTY LTD

(First Defendant) Appellant

- and -

GLEN CROSBY WATSON

(Plaintiff) Respondent

JUDGMENT OF THE COURT

Delivered the 10th day of March 1993

This is an appeal by the abovenamed first defendant

against the quantum of the award of damages to the plaintiff.
The grounds of the appeal are specifically limited within a
narrow range related to the component of loss of earning
capacity.

The plaintiff suffered a joint-strain injury to his right shoulder superimposed upon a pre-existing but asymptomatic degeneration condition which would advance to interfere with his capacity to work. However his injury in the relevant accident immediately disabled him from heavy work.

In respect of the award of $66,930.79 which was allowed for loss of earning capacity to the date of trial, the first ground of the appeal is that no allowance was made for the contingencies of life and for the likelihood that even if he had not been injured as the result of the appellant's negligence the respondent would have been unemployed in any case. The second ground relates to the failure of the trial judge to take into account the travelling expenses which the respondent would have incurred in earning his income. In assessing the loss the figure adopted for the respondent's putative income included a travelling allowance, and his pre- accident income tax returns, which were the only evidence on the point, show that the allowance was fully expended. This complaint refers to both the pre-trial and post-trial periods.

As for the first ground it was conceded for the respondent that the figure awarded for pre-trial loss represented the full amount, without any discount, whatever of the balance of an exercise prepared on the respondent's behalf for the learned trial judge showing the net income at award rates for the entire period from the date of accident up to trial less the amount of his actual earnings. In view of the strong factors supporting the application of a significant discount, its absence is a serious matter and was probably due to oversight.

Apart from the normal factors supporting such a discount, on the evidence in the present case there was also a strong probability that for part of the period the respondent would have been unemployed whether he had been injured or not.

At the time of trial on 28 September 1992 he was fifty-eight years of age and a drainer by occupation. At the time of the accident on 16 February 1988 his pre-existing degeneration of his right shoulder would probably have gradually deteriorated leading to unemployability. On a balancing of the chances both ways and discounting for the ordinary contingencies of life His Honour considered that for the purpose of calculation it should be assumed that apart from this injury the respondent would in any case have ceased to work at about the age of sixty or two years after the trial.

This is not challenged by either side. It does not affect the pre-trial award.

However learned counsel for the respondent argued that all the contingencies of life and any other discounting factor was taken into account in this calculation. This is true for the post-trial period and counsel for the appellant does not attack it in any way as such; but it is clear that no such exercise was taken for the pre-trial period, particularly on the subject of unemployment.

The reality of this adverse factor is manifest in the respondent's actual history. After his injury in this accident the plaintiff continued to work for about three months until 13 May 1988 when he was obliged to cease for a period by reason of an exacerbation of his symptoms from the relevant injuries. He resumed work on 4 November 1988 but at the end of that month was forced to cease again. He resumed once more on 14 April 1989 with a different employer but ceased that employment some thirteen months later on 16 May 1990. Except for some short periods of casual work he did not work again up to the date of trial

There was conflict as to the reason for his having ceased work in May 1990 but that does not matter. Taking all the relevant circumstances at their best for him, which is justified by the learned trial judge's high regard for his credibility and motivation, that employment would still not have been available to him beyond August 1991, which was the date upon which that employer went into liquidation. This was a period of serious unemployment in the drainer's trade, particularly for a man of the respondent's age. This is demonstrated by his inability to obtain suitable work notwithstanding his many applications in which no mention appears to have been made of his disabilities. On the evidence the basis of the rejections of his applications was his age.

No doubt this should be read in the light of the high competition for employment existing at the time, but the point is that his unemployment was unrelated to his injury.

Consequently the facts which were established on the evidence were not taken into account by the learned trial judge when he calculated this loss upon the basis that the respondent would have worked for the entire period if he had not been injured. Learned counsel for the respondent argued valiantly to deflect or offset the result of this omission. First he tried to challenge the proposition that the respondent would have experienced any unemployment at all, but it is impossible to go past the proven facts discussed above.

It was argued alternatively that a discount had been effectively applied by the adoption of a weekly wage rate without any allowance for overtime, whereas the evidence showed that at times the plaintiff had been paid overtime at an average rate of about $20 per week. However the evidence more particularly shows that at the time when he was working prior to his termination of his employment, he was not receiving overtime; nor was there any evidence that overtime would have been available to him if he had been able to continue in employment. This argument does not provide an answer and it is clear that there was no reason why a significant discount should have been applied to this component.

In respect of the ground of appeal that His Honour had failed to make allowance for travelling expenses actually expended by the respondent, his counsel rightly concedes that it follows from the figures awarded that no such allowance was made. In attempting to reduce the impact of this, he made some ground on minor features as to the respective amounts represented by this omission; but the appellant has satisfactorily established that this represents at least $6,000 of the component awarded for pre-trial loss and $4,000 in respect of post-trial loss.

By reason of the omissions identified above, the award is excessive by $20,000 (including the excess interest which was allowed on the inflated figure) in a total assessment of damages of $137,911.52. This produces such a substantial alteration in the total award that it cannot be allowed to stand: Elford v. F.A.I. General Insurance Company Limited (C.A. No. 1491 of 1985).

The judgment below is therefore set aside and after the deduction of workers' compensation payments, there should be judgment for the respondent in the sum of ninety thousand one hundred and thirty eight dollars and seventy cents ($90,138.70) together with the costs of and incidental to the action to be taxed.

The respondent is to pay the appellant's costs of and incidental to the appeal but he should have a certificate under the Appeal Costs Fund Act 1973 in respect of the costs so ordered to be paid and it is certified accordingly.