Hardy v Gardner

[1994] QCA 482

IN THE COURT OF APPEAL	[1994] QCA 482
SUPREME COURT OF QUEENSLAND	Appeal No. 99 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[Hardy v. Gardner & ors]

BETWEEN:

GAI MAREE HARDY

(Plaintiff) Respondent

AND:

WILLIAM BARRY GARDNER and

VERONICA GARDNER

(First Defendants)

AND:

PAUL FRANCIS SEXTON

(Second Defendant)

AND:

FIRE AND ALL RISKS INSURANCE CO. LIMITED

(Defendant by Election) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14/11/1994

This is an appeal against a judgment in the District Court at Southport on 6 May 1994 by which the respondent recovered against the appellant the sum of $190,266.65, including interest, and the appellant was ordered to pay the respondent's costs of and incidental to the action, fixed on a solicitor and client basis, to be taxed.

The respondent's claim arose out of a motor vehicle accident on 23 August 1985. The respondent was a passenger in one of the motor vehicles, and liability was admitted at the trial.

The components of the award of damages made by the trial judge which are challenged on this appeal are amounts of $16,739.80 for past economic loss, and $116,994.50 for future economic loss.

The respondent was born on 8 August 1963. She has not married, but at the time of the trial had two sons, Douglas, who was eleven, and Daniel, who was three. At the time of the accident, Douglas was almost four years of age, and the respondent was living on the Gold Coast in a defacto relationship with his father. Her evidence, which the trial judge accepted, was that, but for the accident, she intended to work, part-time for about 20 hours a week, as a shop assistant or a nurses' aide after Douglas had his fourth birthday until Daniel was born, a period of about three years. Since then her de facto relationship has ended and she has returned with her children to her home town of Tamworth.

A number of factors affected the assessment of the respondent's damages. She is unskilled. She left school at the age of 16 and, in the years prior to the accident, worked only "for a couple of months as a nurse's aide and for a similar period in a pizza shop". There was no evidence that, but for the accident, work would have been available to her, either before or after the trial.

Further, the accident did not completely deprive her of her earning capacity.

The trial judge dealt with both heads of damage summarily.
He said:

"... under the appropriate industrial award the [respondent] could have expected to have received an amount of $23,419 had she been employed for 20 hours per week for a period of three years. In my view it is appropriate to significantly discount this amount in order to reflect the inconsistent work history of the [respondent] prior to the accident. The amount should, I think, be discounted by 30 per cent. The award for past economic loss is therefore $16,739.80.

...

In relation to future economic loss the thrust of the evidence before me is that although the [respondent] could obtain and retain employment with a sympathetic and tolerant employer, it is unlikely that her brain damage would enable her to compete on the open labour market. Forgetfulness, problems with reading, frustration, lack of confidence and inability to concentrate are all clearly established on the evidence. These factors must be regarded as significantly reducing her employability as a shop assistant. The appropriate industrial award for a shop assistant indicated that the pay scale for such occupation is $277 per week. If that figure is applied to the 5 per cent discount tables for 28 years, a figure of $233,989 is produced. This amount must, in my view, be heavily discounted to reflect her inconsistent past work history, family situation and possibility of remarriage, and the usual vicissitudes of life. A discounting of 50 per cent is appropriate. This results in an award of $116,994.50 for future economic loss."

The trial judge's approach was criticised but, apart from his omission to explain his reasoning more fully, no particular error emerges. While the amounts awarded to the respondent are high, there is no sufficient reason to interfere with the amount for past economic loss. However, the amount for future economic loss cannot be sustained on the evidence available and should, in my opinion, be reduced. Approaching the matter globally, which seems appropriate in the circumstances, and taking account of the trial judge's favourable attitude to the respondent, the figure awarded for future economic loss should be $80,000.

Accordingly, we would allow the appeal and set aside the judgment below except in relation to costs. Judgment should instead be given for the respondent for the sum of $153,272.15. The respondent must pay the appellant's taxed costs of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 99 of 1994
Brisbane [Hardy v. Gardner & ors]
BETWEEN:

GAI MAREE HARDY

(Plaintiff) Respondent

AND:

WILLIAM BARRY GARDNER and

VERONICA GARDNER

(First Defendants)

AND:

PAUL FRANCIS SEXTON

(Second Defendant)

AND:

FIRE AND ALL RISKS INSURANCE CO. LIMITED

(Defendant by Election)	Appellant
FITZGERALD P.

DAVIES J.A.

MCPHERSON J.A.

Judgment delivered 14/11/1994
REASONS FOR JUDGMENT - THE COURT

APPEAL ALLOWED. SET ASIDE JUDGMENT BELOW EXCEPT IN RELATION TO COSTS AND IN LIEU THEREOF GIVE JUDGMENT FOR THE RESPONDENT FOR THE SUM OF $153,272.15. THE RESPONDENT IS TO PAY THE APPELLANT'S TAXED COSTS OF THIS APPEAL.

CATCHWORDS: DAMAGES - Quantum - Assessment of future economic loss - respondent injured in a car accident - brain damage suffered reduced her employability as a shop assistant - respondent unskilled with inconsistent past work history - not completely deprived of earning capacity - whether assessment for future economic loss excessive

Counsel:	P.L. Feely for the Appellant K.S. Howe for the Respondent
Solicitors:	Peter Lawlor for the Appellant Delaneys for the Respondent

Date/s of Hearing: 3 November 1994