Claridge v Derite Pty Ltd

[1994] QCA 379

IN THE COURT OF APPEAL	[1994] QCA 379
SUPREME COURT OF QUEENSLAND

Appeal No. 78 of 1994

Brisbane
[Re: Claridge & Ors]

BETWEEN:

DONALD TIMOTHY CLARIDGE

Appellant

AND:

DERITE PTY LIMITED

Respondent

Fitzgerald P McPherson JA Cullinane J

Judgment delivered 29/09/1994
Judgment of the Court

APPEAL ALLOWED TO THE EXTENT THAT THE JUDGMENT PRONOUNCED ON 18 MARCH 1994 IS VARIED BY SUBSTITUTING FOR THE APPELLANT'S PRE-TRIAL ECONOMIC LOSS THE SUM OF $52,910 FOR $21,700, AND BY SUBSTITUTING FOR THE APPELLANT'S LOSS OF INCOME EARNING CAPACITY THE SUM OF $100,000 FOR $34,388, BRINGING THE TOTAL AWARD OF DAMAGES TO $159,368.

THE RESPONDENT IS ORDERED TO PAY THE APPELLANT'S COSTS OF
THE APPEAL.

CATCHWORDS: NEGLIGENCE - PERSONAL INJURIES - Quantum - Economic loss - Past & Future - Whether inadequate in view of appellant's work history.

Counsel:  Mr K Copley QC for the appellant Mr L T Barnes for the respondent

Solicitors: Messrs Quinn, Ryan & Scattini for the

appellant

Messrs O'Mara, Patterson & Perrier for the
respondent

Hearing Date: 20 September, 1994
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 78 of 1994

Brisbane

[Re: Claridge & Ors]

Before	Fitzgerald P McPherson JA Cullinane J
BETWEEN:

DONALD TIMOTHY CLARIDGE

Appellant

AND:

DERITE PTY LIMITED

Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 29/09/1994

The appellant/plaintiff appeals against the learned trial Judge's assessment of damages in respect of pre-trial economic loss and future loss of earning capacity in the sums of $21,700 and $34,388, respectively.

The appellant was born on 5 November, 1944 and was injured on 12 July, 1989 in the course of his employment with the respondent whose negligence the learned trial Judge found was the cause of his injury. He was 49 at the time of judgment.

The relevant facts as found by the learned trial Judge can be summarized as follows:-

(a)	the appellant prior to the accident, the subject of the proceedings, suffered problems with his back from time to time which problems caused him to take time off work but from which he recovered and was able to continue working relatively symptom free. These problems were of a soft tissue or muscular nature;
(b)	there was no pre-existing spinal injury as at the date of the accident;
(c)	the injury sustained by the appellant at the time of the accident was "of a significant nature and of much greater dimension than these earlier incidents";
(d)	the appellant has been significantly and permanently disabled since that time. The appellant has damage to the L4-5 and L5-S1 discs which damage is wholly or almost wholly the result of the accident;
(e)	had the appellant not been injured in the accident his history of periodic back pain made it likely that from time to time he would suffer pain and disability to the back and this would become more frequent as time went on;
(f)	the appellant was a conscientious worker who made all possible efforts both before and after the accident to obtain employment;
(g)	the appellant is unemployable and has been unemployable since the accident;
(h)	prior to commencing employment with the respondent at the beginning of 1989, the "Plaintiff has been virtually unemployed for a period of approximately 5 years".

(i)  the appellant's employment with the respondent would not have continued beyond December, 1989;

(j)	after his employment with the respondent had finished the appellant would have been thrown onto the open labour market at a time when there was a substantial downturn in the building industry;
(k)	the appellant would have continued to try very hard to find employment and had he been able to do so would have taken up employment;
(l)	there was no reason to believe that he would have found it any easier to find a job then he had in the five years prior to being employed by the respondent;
(m)	but for the accident there was a possibility that the appellant could have found employment and might have been fortunate enough to find a permanent job which would have lasted for the rest of his life;
(n)	having regard to his susceptibility to back injury, his limited skills, his "recent history of having difficulty in finding employment" and the fact that he was getting older it is more probable than not that he would have spent a substantial part of his working life between the age of 49 and retirement unemployed;
(o)	in assessing future economic loss, the appellant was to be compensated for the loss of the opportunity to obtain employment during that period because of the possibility that he might have found well paying permanent employment during that period.

Except for the finding made by the learned trial Judge that the appellant had been virtually unemployed for a period of approximately five years and the further references to his pre-accident work history to the extent that they reflect such a finding there is no challenge to the above findings of fact.

It would appear that the learned trial Judge may have misapprehended the evidence concerning the appellant's employment during the five years prior to the accident. It was conceded by the respondent that the effect of the evidence was that during these five years the appellant was unemployed for somewhat in excess of three years.

For the appellant it was said that the assessments for past and future economic loss were inadequate and that this inadequacy at least in part flowed from the learned trial Judge's mistaken view of the appellant's work history during the five years before the accident.

It was common ground that the learned trial Judge erred as to the period for which pre-trial economic loss was to be allowed and that an appropriate adjustment has to be made for this. It was agreed that if the award was not otherwise disturbed the damages should be increased by $9,700 which includes an allowance of $1,100 for interest.

The learned trial Judge allowed in respect of pre-trial economic loss the sum of $7,700 representing the 18 weeks during which the appellant's employment with the respondent would have continued. His average net weekly wage with the respondent was $430. He allowed $100 per week for the remainder of the period although as has been mentioned he erred as to its duration.

The award for loss of future earning capacity was based upon an allowance of $100 a week for eight years.

Turning firstly to the award of $21,700 for pre-trial economic loss this was arrived at in the manner already set out. For the appellant it was said that the sum of $100 per week representing as it does a discount of more than 75 per cent of the appellant's weekly income at the time of the accident produces a sum which is manifestly inadequate. It is said that an allowance which reflected a discount of one- third of the weekly rate would adequately allow for the factors the learned trial Judge referred to and that the figure reflects the erroneous finding as to the appellant's employment during the five years preceding the accident. On the other hand the respondent pointed out that the rate which the appellant was earning with the respondent exceeded substantially the income he had received in any other employment during the periods covered by the tax returns and group certificates. Moreover it was said that there was evidence before the learned trial Judge that the difficult economic conditions which were said to have effected the appellant's employment in the years before the accident had continued to trial.

Whilst conceding the force of what the respondent says about these matters, we think that the learned trial Judge has made an assessment for pre-trial loss which is too low and that it should be increased. We are inclined to think that the figure arrived at by the learned trial Judge does reflect his mistaken view of the appellant's employment history in the five years before the accident. Making allowance for the conceded correction as to the number of weeks we think that a sum of $49,300 should be allowed for pre-trial loss. This sum represents a loss of $7,700 for the first 18 weeks (a figure which was not contested by the appellant) and $200 per week thereafter. Interest in the sum of $3,610 should be allowed.

So far as the future is concerned the learned trial Judge applied two substantial discounting factors. The first was in limiting the future loss to eight years and the second was by applying a rate of $100 when the evidence suggested that at that time the appellant, had he been employed in the field in which he was employed at the time of his accident, might have been in receipt of a weekly income of about $450.

Making full allowance for the various factors to which the learned trial Judge referred when dealing with this subject we think that the figure arrived at in the result significantly undervalues the loss to the appellant consequent upon the destruction of his earning capacity.

Again it seems to us that this is in part a consequence of the erroneous belief his Honour had as to the appellant's employment history in the five years prior to the accident and also perhaps because of a failure to make allowance for those contingencies which would tend to support a higher rather than a lower award such as the prospect of a change in the economic circumstances which had prevailed during the period prior to the accident and between the accident and trial.

We are satisfied that the allowance under this head is inadequate and are of the view that an appropriate allowance would be the sum of $100,000 which represents a loss of $250 per week for ten years.

The appeal is allowed to the extent that the judgment pronounced on 18 March 1994 is varied by substituting for the appellant's pre-trial economic loss the sum of $52,910 for $21,700, and by substituting for the appellant's loss of income earning capacity the sum of $100,000 for $34,388, bringing the total award of damages to $159,368.

The respondent is ordered to pay the appellant's costs

of the appeal.