FAI General Insurance Company Ltd v Charles and Ian Andersen Advertising

[1995] QCA 320

IN THE COURT OF APPEAL	[1995] QCA 320
SUPREME COURT OF QUEENSLAND

Appeal No. 217 of 1994

Brisbane
[FAI & Anor. v. Charles]

BETWEEN:

DAVID SAMUEL CHARLES

(Plaintiff) Respondent

AND:

IAN ANDERSEN ADVERTISING (a firm)

(First Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LTD.

(Second Defendant) Appellant

Davies J.A.
Demack J.

Shepherdson J.

Judgment delivered 25/07/1995

Joint reasons for judgment of Davies J.A. and Demack J.;
Shepherdson J. dissenting in part.

THE APPEAL IS DISMISSED; THE NOTICE OF CONTENTION AGAINST THE AWARD OF DAMAGES ACCEPTED. IN LIEU THEREOF IT IS ORDERED THAT AN ADDITIONAL $10,000 FOR THE LOSS OF EARNING CAPACITY BE AWARDED TO THE RESPONDENT, THEREBY INCREASING THE AMOUNT OF THE JUDGMENT TO $85,777.46.

CATCHWORDS: PERSONAL INJURIES - contributory negligence;

damages for future economic loss.

Counsel:	Mr. P. C. P. Munro for the appellant Mr. D. North for the respondent
Solicitors:	Bradley & Co. for the appellant Wonderley & Hall for the respondent

Hearing Date: 8 June 1995
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 217 of 1994

Brisbane

Before Davies J.A.
Demack J.
Shepherdson J.

[FAI & Anor. v. Charles]

BETWEEN:

DAVID SAMUEL CHARLES

(Plaintiff) Respondent

AND:

IAN ANDERSEN ADVERTISING (a firm)

(First Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LTD.

(Second Defendant) Appellant

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND DEMACK J.

Judgment delivered the 25th day of July 1995

These are an appeal and notice of contention against a judgment given in the District Court for damages for personal injury. The appellant, who was the second defendant and licensed insurer of the first defendant's motor vehicle appeals on the ground that the learned trial Judge failed to find contributory negligence on the part of the respondent and the respondent, who was the plaintiff, contends that the assessment of damages was manifestly inadequate.

Mrs. Van der Kley, who was the driver of the first
defendant's Daihatsu 4 wheel drive motor vehicle, ran out of
petrol when she was driving it in Stenner Street, Toowoomba.
She pulled it into the kerb and left it parked with its near
side wheels adjacent to the kerb.

Stenner Street is a busy road about 12 metres wide. In daytime there would be no impediment to visibility, travelling in either direction, in the vicinity of the defendant's parked motor vehicle. The accident, however, occurred after 7.00 p.m. on 7 May 1991 after darkness had fallen. The Daihatsu vehicle did not have any lights on and, though it had reflector lights at the rear, it was a reasonable inference from the evidence of Mr. Leith, an independent witness, that they were not effective. No street lighting illuminated the vehicle. The colour of the vehicle was described to the learned trial Judge by reference to a chair in the court room.

Counsel in this Court described it as a "dirty brown". The learned trial Judge said that it was not one which could be easily seen at night.

Although Stenner Road was a busy thoroughfare, the area in the vicinity of the parked Daihatsu motor vehicle was not an area in which cars would ordinarily be expected to be parked. The area was not built up either commercially or with residences. There appears to have been open ground on either side of the road for some distance in front of and behind where the vehicle was parked.

Stenner Street runs approximately east-west. The Daihatsu motor vehicle was parked on its northern side facing east. Immediately prior to the collision the plaintiff was riding his bicycle along Stenner Street in an easterly direction. The bicycle was equipped with a battery operated headlight which illuminated the roadway up to six or seven metres ahead of him. He nevertheless collided with the rear of the Daihatsu motor vehicle. The damage to it indicates that the collision occurred on its driver's side rear corner.

The plaintiff had no memory of the accident or of events

immediately preceding it.

The appellant did not submit that the defendant was not negligent in leaving her unlit motor vehicle in the position which we have described at night. However it contended that the learned trial Judge ought to have inferred that the plaintiff had failed to keep a proper lookout and that this had contributed to the collision and his injuries. The appellant's initial difficulty with this contention was that, in the absence of any recollection by the plaintiff, there was no direct evidence of what lookout the plaintiff kept.

A much greater difficulty for the appellant was the
evidence of Mr. Leith which the learned trial Judge accepted.
He had driven along this road during daylight and had noticed
the parked Daihatsu motor vehicle. When he returned at night,
shortly before the accident and travelling in an easterly

direction, he suspected that the car would still be there. there and had to turn his car out to go around it. It was unlit and, if it had reflectors, they were not working in that they did not reflect his headlights on low beam. If the reflectors did not reflect the headlights of a motor vehicle on low beam the Judge was entitled to infer that they would not have reflected a single battery operated light on a bicycle. And if Mr. Leith, knowing the vehicle was there, was nevertheless taken by surprise and consequently had to make a sudden manoeuvre to avoid it, it was reasonable to infer, as the learned trial Judge did, that the plaintiff would not have had a reasonable opportunity to avoid it.

For those reasons the appellant's appeal must, in our

view, fail.

The plaintiff at the time of his accident was a 34 year
old chef employed as head chef at a sports club in Toowoomba.
The learned trial Judge accepted that he intended to work in
that calling until about 65 years of age and his Honour
thought that he would in fact do so. His main injuries were
a compound comminuted fracture of the proximal phalanx of the
left middle finger involving the metacarpophalangeal joint and
a posterior dislocation of the left hip associated with a
fracture of the acetabulum. It is a possible consequence of
the latter injury which forms the basis of the respondent's
contention.

That contention was that the learned trial Judge, in assessing damages for loss of future earning capacity, failed to have regard to the possibility that the plaintiff might have to have an arthrodesis of his left hip which would prevent him working as a chef. The learned trial Judge accepted that the plaintiff had a present disability of 10% loss of use of the left leg, that that disability will increase and that that results in a high possibility that the plaintiff will have to have an arthroplasty, that is a total hip replacement. The appellant did not contest those findings or his Honour's conclusion that an arthroplasty will not result in a substantial reduction of the plaintiff's earning capacity. Indeed were it not for the possibility of an arthrodesis, that is a stiffening of the hip joint, the respondent would not, as we understand the submission, criticise the assessment of $10,000 for loss of earning capacity.

At the trial medical reports from two orthopaedic surgeons, Dr. Meibusch and Dr. Boys were tendered. Dr. Meibusch had seen the plaintiff for his solicitors. Dr. Boys had seen him for the defendant's solicitors. Neither doctor gave oral evidence. Dr. Boys said nothing in his report about the possibility of an arthrodesis. It could not be inferred from his report that he considered and rejected that possibility. It is at least as likely that, as it appears from Dr. Meibusch's reports the possibility is a slight one only and that, for that reason, he did not think it worth mentioning.

Dr. Meibusch was apparently asked to advise on the "worst case scenario". He said that that would be increased pain and increased stiffness which could lead to an arthrodesis of his hip joint within five to ten years. That would cause him great difficulty in returning to his work as a chef. His reports do not disclose what chance there is of this occurring but plainly he thought it a possibility or he would not have mentioned it.

The learned trial Judge does not mention this possibility in his reasons which discuss the possibility of arthroplasty and the fact that it is unlikely to result in a significant future permanent and substantial reduction of the plaintiff's earning capacity. We think it reasonable to infer that his Honour failed to avert to the possibility of arthrodesis.

There can be no doubt that if the respondent were to require an arthrodesis within five to ten years and that resulted in his inability to return to work as a chef he would suffer a substantial loss of future earning capacity, many times that allowed by the learned trial Judge. However the plaintiff's failure to adduce more specific evidence as to the likelihood of this possibility and to invite Dr. Boys to comment on it must have the consequence that it cannot be considered to be any more than a remote one. Nevertheless we consider that the learned trial Judge should have considered arthrodesis as a remote possibility. And because if it occurred the plaintiff's loss of earning capacity would be substantial the effect of his Honour's error is sufficiently great to justify allowance of the respondent's appeal.

For the reasons which we have given it is impossible to attempt with any precision to estimate the amount that should be allowed for this possibility; but having regard to the factors which we have mentioned we would allow an additional $10,000 for the loss of earning capacity making the total assessment under this head for damage $20,000, thereby increasing the amount of the judgment to $85,777.46.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 217 of 1994
Before Davies J.A.

Demack J.

Shepherdson J.

[FAI & Anor v. Charles]

BETWEEN

DAVID SAMUEL CHARLES
(Plaintiff)

Respondent

AND

IAN ANDERSEN ADVERTISING (a Firm)

(First Defendant)

AND

FAI GENERAL INSURANCE CO. LTD
(Second Defendant)

Appellant

JUDGMENT - SHEPHERDSON J.

Judgment Delivered 25 July 1995

I have read the reasons for judgment prepared by Davies J.A.

and Demack J. I agree with them that the appellant's appeal

must be dismissed and for the reasons they give.

In respect of the respondent's contention, I accept the

facts as stated by Davies J.A. and Demack J. and in the course

of the reasons will refer to other matters as well.

Dr Boys, the appellant's expert witness orthopaedic surgeon,

examined the respondent on 13 May 1994 and gave his report on the

same day. In his report he said that his "report is based upon

history, examination, and x-ray obtained on that day. The

medical reports numbered 1 to 7 in Bradley & Co's letter of the

13/5/1994 have been perused."

We do not know exactly what were the medical reports

numbered 1 to 7 but nevertheless I think it proper to infer that

these included Dr Meibusch's four reports given on dates ranging

from 19 November 1992 to 10 October 1993 (both dates inclusive).

Dr Boys was the defendant's expert and I think that he had the

medical reports produced by the plaintiff's solicitors to Bradley

& Co.

It was not until his third report (dated 8.8.93) that Dr

Meibusch mentioned the "worst case scenario" referred to by

Davies J.A and Demack J. In the course of that he said:-

"This could lead to the requirement of a surgical operation within 5 - 10 years. At that time Mr Charles will be in his mid 40's which is not the ideal time for a total hip replacement. I would therefore consider arthrodesing his hip, that is stiffening his hip."

He concluded that report by saying:-

"I sincerely hope that this worst case scenario does not

occur."

His final report (ex.12) discussed hip fusion - again

apparently in response to a letter from the respondent's

solicitors. He concluded this report:-

"I emphasise that this is the worst case scenario that

you are asking me to comment on."

Dr Boys, in his report, has not mentioned possible

arthrodesis of the respondent's left hip. In the opinion portion

of his report Dr Boys said this:-

"It is possible that such degenerative change could be of a sufficient nature to initiate arthroplasty of the left hip prior to normal retirement age. In such circumstances it is reasonable to believe that his impairment would rise to approximately 20% impairment of lower extremity function ... Whether or not significant progression of this man's left hip condition occurs is impossible to quantitate. All that can be said at this point in time is that such surgery is possible rather than probable before normal retirement age."

In my respectful view it can be readily inferred from Dr

Boys' report that he considered and rejected the possibility of

arthrodesis. I say that for these reasons:-

(a) the inference (which is really irresistible given that the

respondent tendered in evidence five medical reports

(including four from Dr Meibusch) and a hospital report)

that Dr Boys considered all Dr Meibusch's reports;

(b) that, as appears from Dr Meibusch's report of 8.8.93, the

mid 40's is not the ideal time for a total hip replacement

and in those circumstances, if they occurred, Dr Meibusch

on a worst case scenario would consider arthrodesis;

(c) Dr Boys' opinion (as accepted by the learned Trial Judge

when His Honour said):-

"Dr Boys in my view also acknowledges that there is some prospect of further deterioration over and above what may normally be expected and deterioration possibly sufficient to require an arthroplasty before normal retirement age."

Dr Boys' failure to refer to arthrodesis does not mean he

did not consider that possibility.

The successful arthrodesis of a hip joint will produce a

greater physical limitation than a successful arthroplasty of

the same joint.

In his report of 24 June 1993 (ex.7) Dr Meibusch

concluded:-

"I do not think that his present symptomatology will change very quickly but it is almost certain now that the symptoms are permanent.

I see no medical reason why this claim could not be settled at this stage. If one continues to wait it could be 15 - 20 years before the final outcome is determined and I think that this is unquestionably too long to wait for the settlement ..."

The 15-20 year period takes the respondent into his 50's.

On my reading of the medical reports of Dr Meibusch it is

implicit that if the need for surgery arises from about age 50

onwards arthroplasty will be preferred to arthrodesis - the

latter (if it did occur) could only occur in the worst cast

scenario when the respondent will be in his mid 40's.

In his reasons for judgment the learned Trial Judge did

not mention arthrodesis; he said:-

"I accept Dr Meibusch's opinion that it is almost certain that the permanent disability will increase albeit at an unpredictable rate over an unpredictable period. Dr Boys in my view also acknowledges that there is some prospect of further deterioration over and above what may normally be expected and deterioration possibly sufficient to require an arthroplasty before normal retirement age. I regard the prospect as sufficiently high to justify an allowance for any increased pain, for the cost and inconvenience of surgery and for any necessary absence from employment. I do not however, allow both for the present uncertainty that it will be required and for the circumstance that, if required, it may be some 20 years away from the present ... "

Later, when dealing with the claim for future impairment

of earning capacity, His Honour referred only to arthroplasty.

He referred to what he saw as "the absence of evidence to

demonstrate that any arthroplasty would probably result in a

significant future permanent and substantial reduction in his

earning capacity." He decided some allowance should be made

and in the event allowed $10,000 "with respect to any such

distant loss."

In my respectful view, it is not possible to infer that

the learned Trial Judge, when dealing with the component for

future impairment of earning capacity failed to advert to the

possibility of arthrodesis. He obviously concluded that

arthroplasty, if it occurred, was a possibility before normal

retirement age. Because he allowed $10,000 describing any

loss resulting from the arthroplasty as "a distant loss", in

my opinion the learned Trial Judge did consider the

possibility of arthrodesis, which if it did occur would occur

only in the respondent's mid 40's and dismissed it, turning

his mind to the possibility of arthroplasty before normal

retirement age.

I recognise that Malec v. J.C. Hutton Pty Ltd (1990) 169 CLR 638 imposed on the learned Trial Judge the obligation to assess the degree of probability that a future event would

have occurred or might occur and to adjust his award to

reflect the degree of probability.

The question here is whether or not this court can infer

that the learned Trial Judge failed to make such assessment.

He certainly failed to say in his reasons that he did so but,

for reasons which I have given I consider that it can be

readily inferred that he did make the assessment, regarded the

chance of arthrodesis as "nil" and disregarded it. In the

circumstances of this case I do not regard it as essential for

the learned Trial Judge to have specifically said that he

regarded the chance of arthrodesis as "nil". However, it may

have been better had he done so. I note that in Parker v. The

Commonwealth (1965) 112 CLR 295 Windeyer J., sitting in the

High Court's original jurisdiction, and dealing with a Lord

Campbell's Act action said (at p.311):-

"I have noticed, so far as seemed to me proper, a number of contingencies and probabilities and I have given a passing nod to what seemed to be mere possibilities."

I accept that "an injured plaintiff recovers not merely

because his earning capacity has been diminished but because

the diminution of his earning capacity is or may be productive

of financial loss." (Graham v. Baker (1961) 106 CLR 340 at

347).

In the circumstances of this case the learned Trial Judge

included in his award a component for future impairment of

earning capacity with which I would not interfere. In my view
the respondent's contention should be dismissed.

I would make no order in respect of costs either of the

appeal or contention but allow each party to bear his and its

own cost of the appeal.