Evans v Brambles Australia Ltd

[1998] QCA 309

IN THE COURT OF APPEAL	[1998] QCA 309
SUPREME COURT OF QUEENSLAND
Appeal No. 10235 of 1997
Brisbane
[Evans v Brambles Aust. Ltd]
BETWEEN:

KEVIN ALEXANDER EVANS

(Plaintiff) Appellant

AND:

BRAMBLES AUSTRALIA LIMITED (ACN 000 164 938)

(Defendant) Respondent

Pincus JA
Thomas JA

Mackenzie J

Judgment delivered 13 October 1998

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	DAMAGES - quantum - future economic loss.
Counsel:	Mr J. S. Douglas QC for the appellant Mr T. I. Morgan for the respondent
Solicitors:	Vincent Morrin Associates for the appellant Quinlan Miller & Treston, town agents for Macrossan & Amiet, for the respondent
Hearing Date:	17 August 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10235 of 1997

Brisbane

Before Pincus JA
Thomas JA
Mackenzie J

[Evans v Brambles Aust. Ltd]

BETWEEN:

KEVIN ALEXANDER EVANS

(Plaintiff) Appellant

AND:

BRAMBLES AUSTRALIA LIMITED (ACN 000 164 938)

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13 October 1998

1. The issue in this appeal is whether the learned trial Judge’s assessment of future economic loss

is inadequate with the consequence that the damages overall are manifestly inadequate.

1. The appellant was a comparatively young man, 26 years old, when he suffered an accident at

work in which a heavy object fell and pinned him against a structure supporting a conveyor belt. This

caused considerable pain principally in the chest and right shoulder area. Medical practitioners found

difficulty in identifying the precise nature of the abnormalities which persisted, but in the event he has

been left with disabilities variously described as 15% loss of use of the right upper limb (by an

orthopaedist); 5% loss through neck pain and headaches, and 5% loss of use of the hand through sensory loss (according to a neurosurgeon); or 5% impairment of the whole patient (in the opinion of

Dr Macfarlane who assessed disability in the right arm and neck). The fact of major relevance for the

purposes of an assessment of damages is that the appellant cannot work effectively above shoulder

height. Although he had worked in various capacities, he was by the time of the accident an

experienced sandblaster and industrial painter. Many of the activities associated with such work require

physical activities above shoulder height, and it was accepted that he cannot now carry out work of this

kind.

1. The learned trial Judge assessed damages at a total of $262,022.21. The following components

were assessed in relation to lost earning capacity -

Past economic loss	$ 90,000.00
Future economic loss	$100,000.00
Loss of employer’s contribution to superannuation
(past and future)	$ 11,400.00

1. Apart from making some unsuccessful attempts to resume work with his former employer, the

appellant had not returned to work between the date of accident (15 June 1994) and the time of trial

(October 1997, judgment 10 November 1997).

1. In this particular case there was considerable difficulty and uncertainty in making any reliable

estimate of the likely future level of earnings by the appellant but for the accident, and also the likely

earnings that he will now make with his disability. He has certainly retained a reasonable earning

capacity, but of course he is cut off from sandblasting and spray painting work which he was well

qualified to perform. The learned trial Judge’s reasons included the following statement:

“For future economic loss, I have indicated that it seems to me the most likely employment that will be open to Mr Evans is the security work. Taking Mr Pons’ recent income as a guide of the kind of income available for industrial painting and sandblasting, the difference between security work and that is about $120.00 per week. If all of the bright prospects which the defendant pointed to in the course of the trial fell into place for Mr Evans, he will in fact be able to earn considerably more than Mr Pons has been earning. However, it seems to me that there is no high probability that this will happen but there is a certainty that he is now not as fit and strong and capable for work as he was before his injury, which is not something that can be calculated with precision but the loss of $120.00 over 30 years would amount to approximately $100,000.00, and this seems to me to indicate the extent of his economic loss. He may, of course, have been able to earn much more than Mr Pons over a long period and he may still be able to earn a considerable sum of money, but this does indicate what is reasonably foreseeable.”

1. The principal submission for the appellant was that the $120.00 per week which His Honour

projected over the next 30 years was said to be an inadequate measure of economic loss over that

period. We did not understand counsel for the appellant, Mr J.S. Douglas QC, to challenge seriously

His Honour’s projection of future earning capacity at a level approximately that at which a security

worker would earn, namely about $331.00 per week. Mr Douglas submitted however that it would

be quite unrealistic to assume that he might also engage in occupations or positions (e.g. painting

supervisor) which would earn substantially more than this. Such possibilities obviously existed, but we

do not understand His Honour to have placed any store by them, or to have paid them any greater heed

than recognising them as theoretical possibilities.

1. The difficulty about projecting a high rate of future earnings on a continuous basis over many

years is that his actual earnings up to the time of the accident, although satisfactory, were not particularly

high. Although qualified to perform industrial painting, and having for a period at age 21 been a

“supervisor” (which means that he was in charge of some other painters) for various reasons he seems

not to have engaged in highly paid work for continuous or lengthy periods. There are for example

periods of unemployment and periods of relatively low earnings in a gymnasium or assisting a relative

in a nightclub. Mr Douglas referred to the circumstance that the appellant’s de facto partner was

pregnant with their first child at the time of the accident, and that this event would have been likely to induce him to settle down and thereafter to choose to exercise his maximum earning potential. Whilst

that submission may carry some degree of persuasion, it is one that the learned trial Judge was in a far

better position to assess than this Court, and it is not a sufficient basis to require the assumption that

there would have been a substantial upward change in the patterns that emerged in his economic history

up to that time.

1. The evidence of Mr Pons shows that some work was available at which an industrial painter

might earn $990.00 net for a six day week. However, despite the alleged availability of such work, and

the fact that the appellant on occasions performed such work, his past record (on the basis of his tax

returns) shows that he achieved only the following approximate average weekly net earnings during the

four years preceding the accident -

Year ended 30 June 1991	$262.00
Year ended 30 June 1992	$486.00
Year ended 30 June 1993	$292.00
Year ended 30 June 1994	$356.00

1. For the future such figures might reasonably be projected upwards by taking into account that

during the 23 weeks immediately before the accident his earnings were at a relatively high rate, around

$650.00 net per week. It was also reasonable to take into account, as His Honour obviously did, the

limited information given to the Court by Mr Pons in relation to his 1996 and 1997 earnings, as a

measure of what could be achieved with appropriate application, and the stated intention of the

appellant to pursue such work. Further there was the additional incentive that fatherhood would

provide.

1. His Honour’s assessment of future economic loss cannot be described as inadequate unless His

Honour ought to have projected prospective earnings on the part of the appellant over the next 30 years

at a level of greater than $550.00 per week net. It cannot be said that His Honour erred by failing to

take a more optimistic view of the appellant’s economic future than this. In the first place, the projection

carries forward until the appellant would reach an age of almost 60, and the projection of highly paid

work over such a long period would be unrealistic. In the second place the appellant’s pre-accident

record, despite the availability of such work, does not provide a good enough basis to require a more

optimistic projection to be made.

1. In this case fine calculations were impossible. The projection over 30 years at $120.00 per

week should be taken only as an indicative example in a case where a broad brush approach was

necessary. It is impossible to say that this award for future economic loss was erroneous or inadequate.

1. The appeal should be dismissed with costs.