Kelly v Valnet Pty Ltd

[1994] QCA 368

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 68 of 1994
Brisbane [Kelly v. Valnet Pty Ltd] BETWEEN:

BRIAN JAMES KELLY

(Plaintiff) Appellant

- and -

VALNET PTY LTD

(Defendant) Respondent

____________________________________________________________

_____

Davies JA
McPherson JA

Mackenzie J

____________________________________________________________

____

Judgment delivered 20/09/94

Judgment of the Court
____________________________________________________________

_____

APPEAL DISMISSED.
____________________________________________________________

_____

CATCHWORDS:

NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - appellant employed as labourer to unload vans at respondent's depot - floor of van uneven because of loader tracks - appellant injured when he caught heel in track as he stepped back and turned after picking up carton - evidence that appellant could see loader tracks on van's floor - failure to keep proper lookout - whether finding of contributory negligence open

NEGLIGENCE - DAMAGES - past and future economic loss - whether damages awarded for economic loss were inadequate - doubts as to whether appellant would have remained in employment

COSTS - OFFERS TO SETTLE - damages awarded were less than the respondent's offer to settle - whether trial judge obliged to order appellant to pay respondent's costs after date of offer - RDC r. 118(2)

Counsel: Ms A.M. Hall-Brown for the appellant

Mr L.T. Barnes for the respondent

Solicitors:  Messrs Crawfords for the appellant
Messrs Neil O'Sullivan & Rowell for the

respondent
Date of Hearing: 08/09/1994

IN THE COURT OF APPEAL	[1994] QCA 368
SUPREME COURT OF QUEENSLAND	Appeal No. 68 of 1994
Brisbane
Before	Davies J.A. McPherson J.A. Mackenzie J.

[Kelly v. Valnet Pty Ltd]

BETWEEN:

BRIAN JAMES KELLY

(Plaintiff) Appellant

- and -

VALNET PTY LTD

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/09/1994

This is an appeal by a plaintiff, in an action for damages for personal injuries against his employer, against a judgment in his favour in the District Court at Brisbane for $47,262.05. The learned trial judge found the respondent guilty of negligence but found the appellant guilty of contributory negligence to the extent of 10 per cent. The appellant submits that that finding of contributory negligence was wrong. He also submits that the awards of $7,250 for past economic loss and $30,000 for future economic loss were inadequate. Finally, he appeals against the orders for costs made.

At the time of his accident the appellant was employed as a labourer unloading a refrigerated van at a loading dock at the respondent's premises at Coopers Plains, Brisbane. At the time of his injury he had been engaged in the unloading operation for about 10 minutes. He was unloading the van on his own. The floor of the van was uneven in that there were in it a number of "J" loader tracks consisting of channels running the length of the floor of the van, each approximately two inches deep and three inches wide. They were used for the purpose of unloading pallets by means of trolleys, the wheels of which fitted into the tracks. The goods which the appellant was unloading on the day in question consisted of cartons which were not on pallets and consequently were being unloaded by hand through a door in the side of the van.

Immediately prior to his accident the appellant had picked up a carton which had been against the side of the van opposite the side through which the unloading was taking place. Carrying the carton in front of him the appellant stepped back and turned around preparatory to moving towards the door. As he did so his heel apparently was caught in one of the tracks to which we have referred causing his leg to twist and him to fall over. There was no evidence that there was any pressure upon the appellant to perform the unloading quickly or otherwise any urgency in the unloading operation.

The learned trial judge held that the respondent was negligent in not issuing instructions to the appellant that there was a danger involved in manually unloading goods from a van with tracks in the floor such as this; in failing to provide a safe system to perform the task; in providing inadequate lighting inside the van; and in failing to provide three by two inch timber to be inserted in the tracks so that they no longer posed a danger to the appellant. Negligence in each of these respects was not disputed by the respondent before this Court. As to the lighting, the evidence from the appellant was that, although the lighting inside the van was not good, he was able to see the loader tracks in the floor of the van as he moved across it. It was not suggested that, when he was carrying a carton such as he was at the time of his accident, he could not have seen the tracks in the floor of the van in order to avoid them. As to the insertion of three inch by two inch timber, we must assume that the respondent could have done this before unloading commenced, notwithstanding the presence of cartons loaded in the van.

The negligence found against the appellant was a failure to keep a proper lookout. There was evidence that the appellant was familiar with vans with a floor of this kind.

He had for some years been a salesman selling vans including vans of this kind. In his capacity as such a salesman he had climbed inside vans of this kind on many occasions and, although he had been working in his current job for only about two weeks before the accident, he had, in the course of that work, unloaded vans of this kind on several occasions before.

The case against the appellant for contributory negligence was, in our view, a borderline one. Given the lack of safety in the system of work it would have been permissible, we think, for the trial judge to have held that the appellant's inadvertence, in failing to observe where he placed his feet so as to avoid the sort of accident which in fact occurred, did not amount to negligence. On the other hand, however, we cannot say that the conclusion reached that the appellant's inadvertence did amount to negligence was wrong even if, had any of us been trying the case, we may have held otherwise.

The appeal against the finding of negligence against the appellant must therefore fail.

The accident occurred on 27 April 1988 and the appellant was off work from that date until 3 April 1989. The learned trial judge, in assessing damages, attributed $7,250 of the total assessment to loss of earning capacity during this period. That sum was made up of $2,250 for the period from 27 April 1988 to 1 July 1988 and $5,000 for the remaining period.

The first of these sums was calculated on the assumption that, but for his accident, the appellant would have continued to work for the respondent in the job in which he was employed at the time of the accident until 1 July 1988.

From that date the respondent's business was taken over by another company which closed the depot at which the appellant was working and ceased engaging casual labourers of which the appellant was one. Ms. Hall-Brown, who appeared for the appellant, rightly conceded that it was highly unlikely that the appellant would have been employed with the respondent after that date. As pointed out by Mr Barnes for the respondent, the learned trial judge's assessment of $2,250 was a generous one. It was based on a weekly net income of $250 whereas, during the period up to the accident, the appellant's net weekly income with the respondent had been only $167.

Before this Court the appellant's complaint with respect to past economic loss was that the sum of $5,000 was inadequate for loss of earning capacity for the period from 1 July 1988 to 3 April 1989 when he obtained employment. The difficulty with the appellant's case, however, both in this respect and in respect of future loss of earning capacity, was that the learned trial judge doubted his veracity. That, together with the absence of any corroborative evidence of pre- accident earning capacity except during the two weeks in which he worked for the respondent, made the appellant's case extremely difficult.

For example, the appellant said that immediately prior to and even during his employment with the respondent he worked for a firm called The Truck and Trailer Centre as a salesman. Yet the evidence was that that firm had been de- registered in February. When that was put to the appellant he said that he did not know whether or not he worked for that firm after February. When it was put to him that the business was registered in his name he said at first that it must have been some other Brian James Kelly. In the end he appears to have conceded that it was he in whose name the business was registered.

Although the appellant swore to having earned $18,000 to $20,000 in each of the 1987 and 1988 years he did not put in income tax returns for either of those years. At least one possible reason for this appears to have been that he did not earn sufficient income in either of those years to justify the submission of such returns. He named a person who could verify his income at The Truck and Trailer Centre but failed to call that person.

Although it is not clear when the appellant would have been fit for work after the accident, he gave no evidence of any attempt to obtain employment after the accident and before he obtained the employment which he did in April 1989. In addition, he was convicted of a drink driving offence in June, July or August 1988 and his driver's licence was suspended for eight months. This must have had a substantial effect on his prospects of obtaining employment during this period whether or not he was disabled.

If the learned trial judge had awarded damages on the assumption that, but for his accident, the appellant would have worked for the whole of the period from 30 June 1988 to 3 April 1989 at the rate of $250 per week, she would have awarded $10,000 instead of the sum of $5,000 which she assessed for this period. But at $167 per week, the rate at which the appellant was in fact earning at the time of his accident, the total loss of income for this period would be only $6,800.

Having regard to the generous assessment which Her Honour made for the period from 27 April 1988 to 30 June 1988, and to the justified doubts which she had as to the appellant's likelihood of remaining in employment for the whole of the period from 27 April 1988 to 3 April 1989 but for the accident, we cannot say that the sum of $5,000 which Her Honour assessed for the period from 30 June 1988 to 3 April 1989 was too low.

Her Honour assessed the appellant's loss of future earning capacity at $30,000. The appellant was born on 23 March 1945 and so is now 49 years of age. He has, in consequence of his injuries in the accident, a moderate disability of 15 to 20 per cent loss of function of his right leg. This is due mainly to the development of post-traumatic arthritis of the right knee joint which has occurred as a consequence of bilateral meniscial injuries.

According to Dr Curtis, an orthopaedics surgeon who gave evidence, it was probable that the appellant's former sporting activities have contributed to the development of this disorder and that, had his work accident not occurred, his present condition would have developed in about 15 years from the date of the accident. In other words, his accident has accelerated his disability by a period of 15 years. The appellant will probably need to undergo two total knee replacement operations in his lifetime.

The most important effect of the appellant's disability upon his future earning capacity, according to Dr Curtis, is that he will need to consider an early retirement before the age of 60; whereas, had the accident not occurred, he would probably have been able to continue in light duties until 65 years of age.

Both parties before this Court accepted that the proper basis for assessment of loss of future earning capacity was the difference between the earning capacity of a man who could continue until 65 less the earning capacity of someone who could continue until only about 60. Various calculations were put forward by both parties. The highest of these, based on a net earning capacity of $400 per week, and including loss of superannuation benefits, was about $59,000. And the lowest of these, based on a net earning capacity of $370 per week, and including lost superannuation benefits was about $34,000. Both calculations, and some others between them, assumed that, but for his accident, the appellant would have continued to work until age 65 or thereabouts. Both parties agree that the learned trial judge's starting point of $440 per week net was too high; the appellant accepting that it should be $400, the respondent submitting that it should be $370.

It can be seen from the above figures that the more conservative assessment, which the learned trial judge would have been quite justified in accepting, is only a little more than the amount which she in fact assessed for this period. Moreover, the learned trial judge was entitled, in view of the justified doubt which she had as to the appellant's likelihood of working for the whole of this period whether or not he had suffered this injury, to discount the amount assessed substantially for that contingency. Having regard to both of those matters we do not think that the amount which Her Honour assessed for loss of future earning capacity was manifestly inadequate.

Although the appellant's grounds of appeal raise other matters, only one was pursued. This was the question of costs.

On 17 December 1993 the respondent offered to pay the appellant the sum of $50,000. The offer was made with a denial of liability. The total awarded damages was, as we have already indicated, $47,262.05. It follows, in our view, that the learned trial judge was obliged by r. 118(2), unless the appellant could show that another order for costs was proper in the circumstances, to order the respondent to pay the appellant's costs, fixed on a party and party basis, up to 17 December 1993 and to order the appellant to pay the respondent's costs, fixed on the same basis, after that date. That is what Her Honour did, the appellant having failed to show that some other order was proper in the circumstances. We can see no substance in the argument advanced that the order for costs was wrongly made.

The appeal is therefore dismissed.