Cullen v Schuler

[1994] QCA 309

IN THE COURT OF APPEAL	[1994] QCA 309
SUPREME COURT OF QUEENSLAND	Appeal No. 12 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[Cullen v. Schuler]

BETWEEN:

DARRYL STEPHEN CULLEN

(Plaintiff) Appellant

AND:

MARGARET ANN SCHULER

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 24/08/1994

The appellant was the plaintiff in a District Court action, judgment in which was delivered on 17 December last. In that action judgment was given in his favour for $46,360.03 damages for personal injuries arising out of a motor vehicle accident. Liability for the appellant's injuries had been admitted by the respondent. Consequently the only question before the learned trial judge was the amount of damages to which the appellant was entitled. He appeals on the ground that the amount awarded for damages was inadequate.

More specifically, the appellant makes two complaints about the award of damages. The first and major complaint is that the amount awarded for future economic loss, in particular that part of it awarded for loss of future earning capacity, was inadequate. The second complaint is that the amount awarded for past care of the appellant was inadequate.

The respondent accepts the correctness of the appellant's criticism of his Honour's award for past care, but says that this was a slip in calculation and offers to have it corrected. Alternatively, the respondent submits that this mistake alone would not entitle the appellant to succeed on appeal: Elford v. FAI Insurance Company Limited & ors. [1994] 1 Qd.R. 258.

The appellant was born on 10 March 1962 and was accordingly 29 when he was injured in the accident the subject of this action on 8 May 1991. He suffered some minor injuries to his left leg, but his major injury was a fracture of the right wrist.

Two orthopaedic surgeons gave evidence about the consequences of that fracture. As the learned trial judge said, there was no significant dispute between them. He referred to the evidence of both and did not need to express a preference for one over the other. A combined view of their opinions is that, at the time of trial, the appellant had a 10-15% disability of the right arm, increasing to 25- 35% in the future. The possibility that it would reach the higher of these percentages, when it would require arthrodesis, was 20-50%. There was an 80% prospect of success of the arthrodesis operation. That would not, however, reduce the appellant's disability. Rather, it would replace a disability caused by pain with one caused by reduction of movement. If arthrodesis were required, it would be in 10-15 years' time. There would, as we understand it, be a gradual deterioration of the appellant's arm over this period. His disability at present consists of restriction of wrist movement and some pain in his wrist.

These are likely to increase to some degree, the latter possibly requiring the arthrodesis. We will refer later to the consequences of this disability upon the appellant's earning capacity.

Prior to his accident, the appellant had worked as a truck driver, as an operator of machinery and heavy equipment, as a milkman, and at the time of his accident as a foreman at a quarry. This last job involved a great deal of physical activity, including carrying heavy buckets of soil for soil testing, using a sledge hammer to adjust parts of the crushing plant, and crawling into confined spaces. His evidence was, however, that he was not sufficiently experienced for the position of foreman and he had agreed with his employer to step down from that position, but to remain an employee at the quarry where he hoped he would be trained to manage and supervise employees. At the time of his accident his nett weekly income was $405. He thought that, working in a lower capacity at the quarry, he would earn about $80 a week less than that. The learned trial judge allowed him past loss of earning capacity on the basis that he would have continued for a further two weeks as quarry foreman and thenceforth until 25 November 1991 when he obtained employment, at the lower rate to which we have referred. The appellant makes no complaint about that, but because the respondent contends that this was high, we should say that we do not think it was.

The work which the appellant commenced on 25 November 1991 was as a line haul truck driver; that is, driving semi- trailers on an overnight express basis between Sydney and Brisbane. It did not require him to participate in loading or unloading. Work was performed on five or six days a week. He worked in this job until 16 October 1993 continuously without holidays for almost two years. He said towards the end he was getting very tired. He would have only one night at home each week and was coming home in a bad mood all the time. The opportunity of a less demanding truck driving job in Perth appeared to come up and he resigned from his employment in the hope of obtaining that job. In the event, it did not become available. During the time the appellant worked as a line haul truck driver, his nett income appeared to be over $600 a week. Not surprisingly, this was used by the respondent, both below and before this Court, to establish that the appellant's loss of future earning capacity was minimal. This contention was accepted by the learned trial judge, who appeared to allow only $2,000 for this.

It must be accepted that during the period in which he worked as a line haul driver the appellant established his present capacity to do that work, notwithstanding that he experienced pain at the base of his right thumb after gripping a steering wheel for some time, that he felt awkward manoeuvring a vehicle without power steering, that he had difficulty in changing a tyre and doing vehicle repairs, and that he also had difficulty in tying knots required when tarpaulins had to be fitted on to vehicle loads.

The job of a line haul driver was obviously a very demanding one. It would be unreasonable to expect a person such as the appellant, even without his injury, to remain in that work indefinitely. The difficulty of the work is reflected in the high income which the appellant earned and it would not be unreasonable to expect that after a period such as he spent in that work, he would seek work which was less demanding. That is in fact what he did.

The difficulty which the appellant has in consequence of his injury is that there are plainly some jobs which he could formerly have done well which now he either cannot do, or cannot do as well as other able-bodied men who are likely to compete against him. This disadvantage on the labour market is likely to increase in the future, as his disability increases. This is a very serious consequence to a man who is dependent upon his physical ability to secure and maintain employment. At trial he was still only 31 years of age. He thus had then approximately 30 years' working life ahead of him in which he would face increasing difficulties competing for work. In the light of that prospect, in our view, the award of damages for loss of earning capacity was much too low. Having regard to the factors to which we have referred, we would award $30,000 under this head.

Counsel for the respondent submitted that the awards for pain and suffering ($20,000) and past economic loss, to which we have already referred, were high. He also submitted that the amount of $4,500 which was allowed for the cost of surgery, including loss of earning capacity during convalescence, were at the high end of the range. It is significant that it was not submitted that any of these sums was outside the appropriate range. We do not think it necessary therefore to deal with them in detail. It is sufficient to say that we think that each of them was well within the appropriate range.

Accordingly, the appeal must be allowed, and the award of damages increased by the sum of $28,065.88, that is $28,000 for loss of earning capacity, and $61.00 being the amount conceded by the respondent upon the claim for past care, together with interest on the latter claim re-calculated to include the sum of $4.88.

The orders therefore are:
1. Appeal allowed.
2. Judgment below set aside.

3.    In lieu, judgment for the appellant for $71,425.91.

4.   Order that judgment be dated as of the date of the judgment below, that is 17 December 1993.

5.    Respondent to pay the appellant's costs here and below.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 12 of 1994
Brisbane [Cullen v. Schuler]
BETWEEN:

DARRYL STEPHEN CULLEN

(Plaintiff) Appellant

AND:

MARGARET ANN SCHULER

(Defendant) Respondent

____________________________________________________________

_____

FITZGERALD P.
DAVIES J.A.
MCPHERSON J.A.

____________________________________________________________

_____

Judgment delivered 24/08/1994

REASONS FOR JUDGMENT - THE COURT
____________________________________________________________

_____

APPEAL ALLOWED.
JUDGMENT BELOW SET ASIDE. IN LIEU, JUDGMENT FOR THE
APPELLANT FOR $71,425.91. ORDER THAT JUDGMENT BE DATED AS
OF THE DATE OF THE JUDGMENT BELOW, THAT IS 17 DECEMBER 1993.
RESPONDENT TO PAY THE APPELLANT'S COSTS HERE AND BELOW.
____________________________________________________________

_____

CATCHWORDS:	DAMAGES - PERSONAL INJURIES - QUANTUM - loss of earning capacity - appellant sustained major wrist injury - restriction in movement and pain - likely to increase in future - presently unable to do jobs which he formerly could do, or as well as other able-bodied persons - disadvantage in labour market likely to increase as disability increases in future
Counsel:	Mr L. Boccabella for the Appellant Mr S. Jensen for the Respondent
Solicitors:	Messrs Baker Johnson for the Appellant Messrs Bowdens for the Respondent
Date(s) of Hearing:	11 August 1994