Colefax v Piggins and MMI Gen Ins Ltd

[2002] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:	Colefax v Piggins & MMI Gen Ins Ltd  [2002] QCA 91
PARTIES:	REGINALD GARRY COLEFAX (plaintiff/respondent) v STEPHEN JOHN PIGGINS (first defendant/first appellant) MMI GENERAL INSURANCE LIMITED ACN 000 122 850 (second defendant/second appellant)
FILE NO/S:	Appeal No 6877 of 2001 DC No 2998 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2002
JUDGES:	Davies and Thomas JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1.    Appeal allowed. 2.    Set aside judgment of the District Court and in lieu       give judgment for the plaintiff for the sum of $97,028       with costs.
CATCHWORDS:	DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - PARTICULAR CIRCUMSTANCES - where respondent was injured in a motor vehicle accident - where respondent suffered a permanent disability in right wrist - where respondent had a degenerative arthritic condition in right wrist which may have produced symptoms without the occurrence of the accident - whether the assessment of pre-trial loss of earnings and future loss of earning capacity was correct
COUNSEL:	R C Morton for the appellants K S Howe for the respondent
SOLICITORS:	McInnes Wilson for the appellants Bennett Philp for the respondent

1. DAVIES JA:  The respondent was injured in a motor vehicle accident on 12 November 1998.  On 4 July 2001 judgment was given in his favour against the appellants for $158,402 damages for those injuries.  The appellants, who were the driver and insurer respectively of the truck which injured the respondent, appeal against the amount of damages awarded by the learned trial judge.

1. The significant components of his Honour's award of damages, for the purpose of this appeal were $25,000 for pain, suffering and loss of amenity, $33,900 for lost income to the time of judgment and $4,510 for interest on that sum, $78,000 for future lost income, $2,375 for past lost superannuation and $6,240 for future lost superannuation.

1. The appellants submitted that each of those sums was manifestly excessive for reasons to which I shall refer shortly.  A primary submission made by the appellants, which affects all of those components, is that the learned trial judge erred in finding that the complainant's right wrist pain after the accident was causally connected to the accident.  However, even if that contention is rejected, it is still contended that his Honour's assessments under each of these heads and, consequently the total assessment, are excessive.

1. The respondent was working as a labourer on roadwork when he was injured on 12 November 1998.  He was then 49 years of age.  He was 52 at the time of trial.  He suffered multiple injuries when he was hit by the truck.  He apparently broke his fall by the use of two hands both of which were abraded and bruised after the accident.  He said that he experienced pain in both of them and also in his knees, ribs, hip, back and neck.  He also had a minor head injury.  He was referred by his general practitioner to the QEII Hospital where plaster was applied to his left wrist, it seems, for a sprain.  That settled within a couple of months leaving him with no disability in that wrist.  The only significant disability for which the respondent contended was to his right wrist.  He is right handed.

1. There was no serious dispute that, by the time of trial, the respondent had a present permanent disability in his right wrist.  However the appellants submit that, whatever disability he had by then in his right wrist, it was not caused by the accident.  A similar submission was rejected by the learned trial judge.

1. The evidence upon which the appellants relied and rely for this submission consists of records, absent from which was evidence of complaint of right wrist pain shortly after the accident.  The QEII records on the day of his injury and on 30 November 1998 do not record complaint of right wrist pain.  And the hospital notes of 5 January 1999 record complaint of right wrist pain gradually increasing over two weeks and that the respondent did not have pain in that area prior to that.  In addition neither the claim for workers compensation benefits nor his statement dated 29 November 1998, apparently made for that purpose, refer to right wrist pain.  His Honour nevertheless concluded that the respondent had suffered right wrist pain from the accident.

1. The respondent gave evidence that he had complained of right wrist pain to staff at QEII Hospital on the day of his injury and he was cross-examined on that.  His Honour accepted him as a witness of truth.  Dr Robertson, whose evidence the learned trial judge appeared to accept, after referring to various possibilities which could have produced the onset of symptoms said that a dull ache in the wrist experienced immediately after the fall, which in time worsened, would be consistent with a fall having precipitated the painful symptoms of which he later complained.  That is in fact the way the respondent in effect described his pain and his Honour accepted him.

1. The strongest evidence supporting the appellants' submission that his Honour was wrong in accepting the respondent's evidence in this respect was the hospital notes of 5 January 1999.  However, as his Honour pointed out, hospital records are often inaccurate in historical detail due to heavy workloads in public hospitals.  I do not think that these notes, either alone or together with other records, should have caused the learned trial judge to disbelieve the respondent.  Accordingly I would reject the appellants' contention that his Honour erred in concluding that the respondent's right wrist pain was caused by his fall in the accident.

1. There is no doubt that, in a man such as the respondent whose only income earning capacity was from labouring type work, a disability in the right wrist would interfere with his earning capacity.  The doctors agreed on this.  The question is how that should be measured in terms of his loss of income up to the date of trial and of his future earning capacity thereafter.  In this appeal two questions were raised affecting both of those assessments.  The first concerned the presence of an underlying degenerative arthritic condition in the respondent's right wrist which may have produced these symptoms at some stage without the occurrence of the accident.  And the second is the correct measure of the respondent's pre-accident earning capacity.  Subject to the resolution of those questions I infer that the appellants have no other argument against his Honour's assessments for loss of earning capacity, past or future.

1. As to the first of these the difficult question was, as it often is, when, but for this injury, that asymptomatic condition would have been likely to have become symptomatic.  On that question, Dr Robinson, whose evidence the learned trial judge accepted, gave what, at first sight, appear to be different estimates.  In his report of 8 April 2001 he said that the injury accelerated the development of the respondent's symptoms by between two and four years.  Then in his report of 28 May 2001 he said that, had the respondent continued as a manual worker, he may have developed symptoms in three, five or 10 years.

1. However this was clarified, in my opinion, in the doctor's oral evidence.  There he said:

"He may have got symptoms at the age of 51, but he may have made it all the way through to age 60 without symptoms.  That I cannot predict.
So it could be 10, 15 years or two to four?--  Could be."

1. Plainly the doctor was unable to express a view more accurately than that it would have been somewhere between two and 15 years before the respondent's condition would have produced symptoms had it not been for his fall.  His Honour's estimate, within that range, of 10 years was, as he recognized, an arbitrary one and perhaps a little generous but not one which, in my opinion, was glaringly improbable.

1. As to the second of these questions, the respondent's work history before his accident tends to show that, had he not suffered this accident, his income earning prospects thereafter would not have been high.  He joined the Army in 1975 and worked as a cook in the Army until 1984.  Then, or shortly after then, his wife left him and he devoted himself full time to rearing his children.  He did this until 1996 when his youngest child turned 16 and his single parent allowance ceased.  He then tried to obtain work but found it difficult.  That is not surprising for he was then 47 years of age, with few skills, seeking labouring work for which, no doubt, he would have been competing with much younger men.  He also had a neck condition which, at times, inhibited his ability to get and retain work.  It is necessary to say a little more about that condition.

1. The respondent said that it had resolved by September 1998.  However he had had continual pain and lengthy treatment for it in 1997 and its symptoms came on again for a time after the accident.  In those circumstances I think that his Honour was justified in concluding that this history satisfied him that the respondent was vulnerable to disabling neck pain which could occur for no apparent reason (there had been none in 1997) and which could be persistent.

1. The respondent eventually approached MechTrades and obtained work with them.  However that work consisted of a few weeks in June 1997, a few months in late 1997 and about 10 days in November 1998 ending with his injury on 12 November 1998.  If one looks at the total period between February 1996 when he commenced looking for work and 11 November 1998, a period of two years and 10 months, his average earnings over that period were about $57 a week.

1. In order to assess the respondent's pre-trial loss of earnings and future loss of earning capacity his Honour commenced his calculation on the basis of a nett earning capacity of $490 a week.  That appears to be based on a 35 hour week at the rate per hour ($14 an hour) at which he was being paid by MechTrades.  However at no time does he appear to have worked a 35 hour week and his income earning work over more than two years was infrequent.

1. In order to allow for that, his Honour then reduced by one-half the amount arrived at by applying $490 a week to the period from the date of accident to the date of trial.  However in my opinion, when one takes into account his actual earnings over a substantial period prior to the accident and the likely reasons for his inability to earn more than that, in particular his age, the long period during which he was totally unemployed and his recurrent neck problem, I think that his Honour's estimate of a total loss of $33,900 is far too high assuming, as it does, either full time work for about one half of that period or substantial part time work over the whole of that period, neither of which seemed likely.  I would halve that sum making the award under that head of damage $17,000.  Interest on that at five per cent for 2.66 years (the period for which his Honour awarded interest) is $2,261.

1. His Honour assessed loss of future earning capacity on the same assumptions.  Accordingly I would reduce it for the same reasons to approximately half the sum which his Honour awarded under this head, namely $40,000.  Past lost superannuation at seven per cent of $17,000 is $1,190 and future lost superannuation at eight per cent of $40,000 is $3,200.

1. On the other hand there is nothing in the appellants' submissions which, in my opinion, justifies interfering with his Honour's assessment of $25,000 for pain, suffering and loss of amenity.  The amount allowed for future medication was also attacked but no sufficient basis was established for interfering with this amount.

1. I would accordingly allow the appeal, set aside the judgment of the District Court and, in lieu give judgment for the plaintiff for the sum of $97,028 with costs.

Orders

1.          Appeal allowed.

2.          Set aside judgment of the District Court and in lieu give judgment for the plaintiff for the sum of $97,028 with costs.

1. THOMAS JA:  I agree with the reasons of Davies JA and the orders he proposes.

1. DOUGLAS JA:  I have read the reasons of Davies JA and agree that the appeal be allowed;  the judgment of the District Court be set aside, and in lieu there be judgment for the plaintiff for the sum of $97,028 with costs.