Hore v Costain Australia Ltd

[1996] QCA 382

IN THE COURT OF APPEAL	[1996] QCA 382
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No.1941 of 1996
[Hore v Costain Aust. Ltd]
BETWEEN:

SCOTT WILLIAM HORE

(Plaintiff) Respondent

AND:

COSTAIN AUSTRALIA LIMITED

(Defendant) Appellant

______________________________________________________________________________

Fitzgerald P. Mackenzie J. Cullinane J.

______________________________________________________________________________

Judgment delivered 11/10/1996

Reasons for Judgment - The Court

______________________________________________________________________________

APPEAL DISMISSED WITH COSTS TO BE TAXED.

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CATCHWORDS: PERSONAL INJURY - QUANTUM - plaintiff respondent was a

miner injured in a workplace accident.
- whether the calculation of damages for future economic loss was

excessive.

Counsel:	R.J. Douglas for the appellant. S. Williams Q.C. with him L. Barnes for the respondent.
Solicitors:	Quinlan Miller and Treston for the appellant. Thynne and Macartney for the respondent.
Hearing date:	30 September, 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No.1941 of 1996
Before	Fitzgerald P. Mackenzie J. Cullinane J.

[Hore v Costain Aust. Ltd]

BETWEEN:

SCOTT WILLIAM HORE

(Plaintiff) Respondent

AND:

COSTAIN AUSTRALIA LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment Delivered 11 October 1996

This is an appeal against quantum in a personal injuries action. The respondent was

injured in 1988, when aged 22, by falling 25 metres down a mine shaft. He sustained a wedge fracture

of the eighth thoracic vertebra, fractures of the pelvis and a rupture of the right shoulder joint. The

awards for past economic loss and impairment of earning capacity are the subject of the appeal.

The learned trial judge found that the respondent's pre-accident employment history showed

steady employment and a commitment to heavy work. There was evidence that the plaintiff had

averaged $826 net per week for the 30 weeks he had been employed in the mining industry. It was

conceded that it was open for the learned trial judge to find that the respondent would have continued to

work as a construction miner had the accident not intervened. The learned trial judge accepted the

respondent as a "totally credible witness" as to the extent of his disabilities and their effect on his working

and recreational capacities. He made a finding based on the evidence of a contractor in the mining

industry Mr Gardner, that a good miner would receive about $1,200 a week net at the time of trial.
There was a finding that the plaintiff fell into the category of a good miner and was interested in

improving himself. Mr Gardner also gave evidence that there had been a fairly steady growth in the take

home pay from 1988 until the date of trial.

The argument against adopting the figure of $1,000 per week as the basis for calculating past loss

relied on evidence from tax returns of Mr Rangi which, it was submitted, supported a lower figure. Two

things may be said about this. The first is that the learned trial judge accepted the evidence of Mr

Gardner as to potential earnings. The second is that there was a finding that Mr Rangi provided an

example of the way in which the respondent may possibly have progressed. Mr Rangi, who had family

connections in the industry through Mr Gardner, had obtained a staff position by the time of trial. He

estimated that even if he had not obtained that position, his gross earnings would have been in excess of

$90,000 as an underground drill rig operator in the financial year in which the trial occurred. It was

open to the learned trial judge to accept Mr Gardner's evidence in preference to other evidence to the

extent that it may have conflicted with it. There was no error in principle in deriving a mean figure for the

purpose of calculating past economic loss, and once the evidence of Mr Gardiner was accepted, the

mean figure of $1,000 per week as a basis of calculating past loss was justifiable.

With respect to impairment of earning capacity in the future, the learned trial judge applied the

sum of $800 on the 5 per cent tables up to the conclusion of a 15 year period from the date of injury.

The 15 year period was adopted because of pre-existing scoliosis which would in the normal course of

the plaintiff's lifestyle have become symptomatic by that time. The figure of $800 per week was derived

by starting with the figure at the date of trial of $1,200 for net earnings and discounting by $300, being

the current level of earnings for a storeman which was taken to be a form of employment open to the

respondent, and then deducting another $100 for contingencies. The argument that this component was

excessive depends principally on establishing that the figure of $1,200 net per week as earnings at the

date of trial was incorrect. For reasons which have already been stated there is no substance in that

complaint.

As the fundamental propositions upon which the appeal relies have not been established the

appeal is dismissed with costs to be taxed.