Collins v King and Sons Pty Ltd

[1992] QCA 44

IN THE COURT OF APPEAL

[1992] QCA 044

SUPREME COURT OF QUEENSLAND

No. 391 of 1988

Before the Court of Appeal

The President
Mr Justice Davies J.A.

Mr Justice Shepherdson

BETWEEN:

ANTHONY WILLIAM COLLINS

Respondent

- and -

KING & SONS PTY. LTD.

Appellant

JUDGMENT OF THE COURT

Delivered the 1st day of April, 1992

This is an appeal against an award of damages to the respondent who was injured in the course of his employment.

The trial judge awarded the respondent $216,039.72, and the

appellant contends that that award "is beyond relevant
limits" substantially because the assessment is said to be
erroneous in relation to components included for pre-trial
and future economic loss and associated interest.

The case for the appellant substantially depends upon a single proposition, namely, that the trial judge erred in a critical finding which formed the basis for his assessment of both pre-trial and future economic loss. In his reasons for judgment, he said:

"The plaintiff's counsel produced a schedule (Ex.9)
(based upon the plaintiff's work records with the
defendant, and the evidence of Mr Bess, a union
representative) to calculate a sum for lost wages up to
the date of trial. It amounts to approximately
$77,000. No criticism was made by the defendant's
counsel of the calculations in Ex.9, but it was
submitted that there should be a substantial discount.
The first reason advanced was that the plaintiff's
work history prior to joining the defendant was, to say
the least, patchy. He might well have had periods away
from work either by choice or by necessity. Second,
and more seriously advanced was the submission that I
should find that he should have obtained some work

during this period.

... "

After reviewing evidence concerning the respondent's ability to work, his omission to seek work or rehabilitation and job opportunities available to him, the trial judge decided that "some small discount ought to be made to his damages for

lost income to date. I allow, under that head, $70,000."

Then, after making provision for interest in relation to the respondent's past economic loss less the total of the weekly compensation benefits which were paid to the respondent for part of the period prior to the hearing, the trial judge continued:

"In calculating future economic loss, it is convenient
to start with the most recent net weekly pay which he
would be receiving were he still employed by the
defendant. Taking into account average overtime work,
the employer's superannuation contribution, holiday
loading, a net weekly after tax figure, rounded off, is
$400.00. Given the state of the evidence about his
congenital spinal condition I think it reasonable to
take a further period of ten years during which he
might have been expected to earn income before the
natural degeneration overtook the effects of the
accident on his spine. As I said in relation to past
economic loss, there must be some discounting to take
into account the possibility of his choosing to leave
his employment or being forced to. There is also the
possibility that during the future ten year period
which I am considering, as his spinal stenosis
gradually worsened, he could have suffered a disabling
injury to his back. There is also the fact that he
might have chosen to embark on a business venture such
as nut growing which may or may not have been
successful. Lastly, he does have a small residual
earning capacity. All told it seems to me that I ought
to make a substantial discount and I propose to settle
on a net weekly figure of $300.00 on which to project
future lost income. Capitalised at 5% the assessed
amount for future lost earnings is, rounded off,
$124,000.00."

The appellant criticised the findings in relation to the respondent's earning capacity pre trial and submitted that a 10% discount was insufficient. However, His Honour rightly took into account the appellant's practical difficulty in obtaining and holding any work, the fact that unemployment had been high throughout this period and the fact that jobs which the respondent could do would have been few and the applicants for them many. In the light of those facts we do not think that a discount of 10% was too little.

The crux of the appellants case was its criticism of the use made by the trial judge of Ex.9, which formed the basis for both the figure of $77,000 for lost income up to the date of trial and the rounded-off net weekly after tax figure of $400.00 which formed the basis for the calculation of future economic loss.

Shortly stated, the point sought to be made by the appellant
was that Ex.9 was hypothetical and that the details which it
contained failed to take into account the respondent's
actual work record while employed by the appellant for about
34 weeks prior to the accident, as set out in another
exhibit, Ex.5. It was said that, when regard is had to
Ex.5, it can be seen that although the respondent worked an
average of 11.3 hours overtime during each week of his
employment with the appellant, he did not always work a full
week of ordinary time. Overtime was paid in respect of work
outside normal working hours on any day even when the total
hours worked in a week during normal working hours, did not
amount to the ordinary weekly hours required. It was argued
that, since Ex.9 was based upon the premise that the
respondent worked both ordinary weekly hours plus 11.3 hours
overtime per week on average, it did not provide a
satisfactory starting point from which the trial judge could
assess either past or future economic loss. Alternatively,
the discounting adopted by the trial judge was for this
reason also inadequate.

The respondent sought to justify the trial judge's award by reference to various other factors, to which it is unnecessary to refer.

It is a sufficient answer to the appellant's criticism of the use which the trial judge made of exhibit 9 to note two matters.

Firstly, although Ex.5 indicates that there were weeks when
the respondent did not work ordinary hours, he did work
ordinary hours in most of the 34 weeks that he was employed
by the respondent. It was open to the trial judge to use
Ex.9 as a starting point and to apply a discount as he did.
Although the discount which he applied in relation to the
respondent's past economic loss was small as was recognised,
that was more than compensated for by the comparatively
large discount which applied in calculating future economic
loss and the relatively brief period of ten years which was
allowed to the respondent to earn future income given the
medical evidence with respect to his future work prospects

prior to the accident.

Secondly, it seems that the point upon which the appellant
has based its appeal to this Court was not really litigated
in the Court below. It is difficult to find any serious
attempt by the appellant to pursue, either in evidence or in
cross-examination of the respondent or his witness Mr Bess,
the matters which it now contends can be deduced from Ex.5,
and the reasons for judgment indicate that the appellant
sought to challenge Ex.9 on the basis of the respondent's
"work history prior to joining" the appellant, but not his
work record while he was employed by the appellant.
It remains to mention that the appellant sought leave to
amend its grounds of appeal to raise an additional point
with respect to a small amount of interest awarded by the
trial judge on the damages which he assessed for pain,
suffering and loss of amenities prior to trial. Once again,
the point had not been contested below and leave was
refused.
The appeal should be dismissed with costs.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 391 of 1988

Before the Court of Appeal

The President
Mr Justice Davies J.A.

Mr Justice Shepherdson

BETWEEN:

ANTHONY WILLIAM COLLINS

Respondent

- and -

KING & SONS PTY. LTD.

Appellant

JUDGMENT OF THE COURT

Delivered the 1st day of April, 1992

MINUTE OF ORDER:	Appeal dismissed with costs
CATCHWORDS:	DAMAGES - Personal injuries - appeal against assessment
Counsel:	Mr D.R.M. Murphy for the Appellant Mr R.A.I. Myers for the Respondent
Solicitors:	Messrs. Andersen and Co. for the Appellant
Mr John O'Connor for the Respondent

Hearing Date: 10th March, 1992
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 391 of 1988

BETWEEN:

ANTHONY WILLIAM COLLINS

(Plaintiff)

Respondent

- and -

KING & SONS PTY. LTD.

(Defendant)

Appellant

The President
Mr Justice Davies

Mr Justice Shepherdson

Judgement of the Court delivered the 1st day of

April, 1992

APPEAL DISMISSED WITH COSTS