Laskowski v Burgess

[1996] QCA 131

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 212 of 1995

Brisbane
[Laskowski v. Burgess]

BETWEEN

STANLEY JOHN LASKOWSKI

(Defendant) Appellant

AND

KEVIN JAMES BURGESS

(Plaintiff) Respondent

Pincus JA
Williams J

Byrne J

Judgment delivered 21/05/1996

Separate reasons for judgment. All concurring as to the order.

APPEAL ALLOWED. THERE SHOULD BE SUBSTITUTED FOR THE SUM OF
$174,903.63 APPEARING IN THE JUDGMENT THE SUM OF $125,385.62.
THE RESPONDENT TO PAY THE APPELLANT'S COSTS OF AND INCIDENTAL

TO THE APPEAL.

CATCHWORDSTORT - QUANTUM - DISCOUNTING - ECONOMIC LOSS.

Master/servant - whether trial judge appropriately discounted past and future economic loss in light of respondent's pre- existing condition and employment history.

TORT - Master/servant - whether Griffiths v. Kerkemeyer component accurately reflected the respondent's needs.

Counsel:	Mr M Hinson for the appellant Mr R Trotter for the respondent
Solicitors:	Ebsworth and Ebsworth town agents for Corser Sheldon & Gordon Lewis & McNamara for the respondent

Hearing Date: 13 May 1996

IN THE COURT OF APPEAL	[1996] QCA 131
SUPREME COURT OF QUEENSLAND

Appeal No. 212 of 1995.

Brisbane

Before Pincus J.A. Williams J. Byrne J.

[Laskowski v. Burgess]

BETWEEN:

STANLEY JOHN LASKOWSKI

(Defendant) Appellant

AND:

KEVIN JAMES BURGESS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21/05/1996

I have read the reasons for judgment of Williams J. and agree with his Honour’s conclusions.

I am also in substantial agreement with the reasons given; but I would add for myself that, apart

from the detailed analysis given by Williams J., the basic facts of the case suggest that an assessment

of damages of about $230,000 less worker’s compensation is much too generous. Before the accident

for which damages were given, the respondent had a patchy working history. In the financial year

preceding the accident he is said to have earned absolutely nothing; his employment record after the

accident was for some months better than it had generally been before the accident. But in May 1992,

as Williams J. has pointed out, the respondent’s employment ceased and he never worked again. According to Dr Curtis’ medical opinion, the respondent had a pre-existing defect in his back, the ill-

effects of which were accelerated by the accident. Dr Curtis thought that the activities of which the

respondent was capable, as shown by the video, were considerably more extensive than those of which

he had previously claimed to be capable. The judge tended to discount this circumstance by reference

to the evidence that the respondent had his good days and his bad days. But in a case of this sort the

Court, like the examining doctors, is much dependent upon the reliability of the injured person, as to the

severity or otherwise of the symptoms of the back condition; there was little to be found by way of

objective signs. The account the respondent had, before the existence of the video was revealed, given

to the doctor did not include the information that he could ever - whether on good days or on bad days

- do what the video showed he could. To treat the respondent’s evidence about his condition and his

account of it given to the occupational therapist as substantially acceptable, as the judge apparently did,

was in my respectful opinion an entirely inappropriate course.

We were told from the bar table, in effect, that the revelations of the video should be treated

with suspicion, on the theory that perhaps the person who took it edited out any depiction of activities

being performed with apparent difficulty, and that on the "bad days" the respondent would not have

emerged from his house. But there was no evidence to support these suggestions; in particular, no

attempt was made to put them to the person who did the filming. One can understand a reluctance to

act upon evidence of an injured person’s capabilities obtained by snooping, as against that person’s own

sworn account. But in many instances the camera may be a more objective guide to the true extent of

the disabilities than the plaintiff who, however honest and decent he appears to be and may in fact be,

will on some occasions be influenced by the possibility of the damages being such a handsome sum as

was assessed here - a sum equivalent to nearly 30 years of his average pre-accident earnings.

I agree with the orders proposed by Williams J.

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered : 21/05/1996

I agree with Williams J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 212 of 1995

Brisbane

[Laskowski v. Burgess]

BETWEEN

STANLEY JOHN LASKOWSKI

(Defendant) Appellant

AND
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 212 of 1995

Brisbane

Before Pincus JA
Williams J
Byrne J

[Laskowski v. Burgess]

BETWEEN

STANLEY JOHN LASKOWSKI

(Defendant) Appellant

AND

KEVIN JAMES BURGESS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 21st day of May 1996

This is an appeal by a defendant against the quantum of damages assessed by a learned Judge of District Courts sitting at Maryborough. The action arose out of an accident which occurred in the course of the respondent's employment with the appellant on 20 August 1991. Prior to the trial the parties reached agreement that liability was to be apportioned 90/10 in favour of the respondent.

The assessment of the learned trial judge can be summarised as follows:

Pain and suffering	$ 30,000.00
Past economic loss	$ 55,000.00
Interest on the above	$ 8,660.00
Past Griffiths v. Kerkemeyer	$ 10,000.00
Interest on the above	$ 810.00

Future Griffiths v. Kerkemeyer $ 16,000.00

Future economic loss	$100,000.00
Board specials	$ 2,417.81
Other specials	$ 371.90
Interest on the above	$ 22.00
Future pharmaceuticals	$ 4,410.00
Fox v. Wood	$ 3,160.00

TOTAL: $230,852.31

After making the necessary adjustment for the 10% contributory negligence, and deducting the amount refundable to the Worker's Compensation Board, judgment was given for the respondent for $174,903.63.

On the appeal the appellant targeted the amounts for past economic loss, future economic loss, and future Griffiths v. Kerkemeyer. With respect to past and future economic loss it was submitted that the learned trial judge fell into error in not making a sufficient discount for a variety of contingencies. In relation to the assessment for future Griffiths v. Kerkemeyer the primary submission was that the assessment was against the weight of evidence, though in that instance there was also, it was said, a failure to make appropriate discounting.

In the incident the respondent suffered an injury to his back in the lumbar region. Prior to the accident, as the learned trial judge found, the respondent was "already undergoing some natural degeneration" but he had not to that time "suffered any problems with his back".

The only medical evidence came from Dr Curtis, an orthopaedic surgeon. In his pre-trial reports he spoke of the respondent suffering a "developmental or congenital deformity which was in existence at the time of his injury". There would, in his opinion, have been a natural progression of that condition so that within some 10 to 15 years the plaintiff would in any event have been suffering from the condition which manifested itself after the subject accident.

In those reports the doctor assessed the disability as "representing some 20% loss of function of his spine as a whole which is permanent." He concluded by saying:

"However, at present he is incapable of resuming his former occupation as a labourer and has difficulty coping with alternative lighter duties. There will remain considerable and permanent curtailment of his recreational and sporting activities."

At the outset of the trial Dr Curtis was shown certain videos depicting the respondent working on and about a motor vehicle. He said in evidence that in consequence of seeing that material he wished to modify his previously expressed opinions. As a result of what he saw he reduced the percentage disability to something in the region of 5-10% loss of function. The following are relevant answers which he gave on those issues:

"My opinion is based upon the observed range of motion of his back and presumed difficulties with performing certain tasks. During the video I observed him performing tasks without difficulty and observed virtually, if not fully, normal range of motion of the spine. On the basis of that, I would be prepared to reduce the assessment of disability."

"Again on re-examination this morning he still displayed a reduced range of movements of his spine, but the exertion of movements was generally greater than it had been on the occasion in the previous examination. ... As a result of this morning's observation on examination I would assess disability at 10% loss of function of his spine."

Clearly the doctor considered that the respondent's condition had "improved quite considerably" in the interim between his last examination and the date of trial. He also indicated that in the light of the video material there would be no indication of surgical intervention; that was something he had advocated in his earlier written report.

In evidence the respondent described himself as a labourer, and most, if not all, of his occupations over the years had been in an unskilled area. His work history in the four years prior to the accident was detailed in a schedule tendered as an exhibit. In the year ended 30 June 1989 he worked for a period with Brentwood Homes and earned $5,345 gross; he says that the net figure for those earnings is "not known". That gross figure is almost identical with his earnings from WE Moller & Sons in the same year which resulted in a net of $4,133.40. I will therefore assume the net for his earnings with Brentwood Homes was $4,133. With that adjustment the following gross and net figures are established by the evidence:

(i) Year ended 30 June 1988 $12,984 Gross

$10,375 Net

(ii) Year ended 30 June 1989 $14,232 Gross

$10,994 Net

(iii) Year ended 30 June 1990 $14,331 Gross

$11,197 Net

(iv) Year ended 30 June 1991 Nil Gross

Nil Net

The accident in question happened on 20 August 1991, which was about a month after the respondent had commenced work for the appellant as a delivery driver. He did not cease work immediately he sustained the injury; it appears that he ceased work in November of that year. Between 15 July 1991 and 18 November 1991 the respondent received $6,602 gross (or $5,565 net) from his employment with the appellant. During the pre-trial period he also had periods of employment as a security officer and a truss fabricator. In the first position he was employed from 28 November 1991 to 27 April 1992; there he earned $10,973.60 gross or $8,420 net. In the latter position he was employed from 7 May 1992 to 21 May 1992 earning $1,251 gross, $1,015 net.

It should be noted that on that material he appears to have worked continuously from the time of the accident until April of 1992; indeed it is not disputed that he was dismissed as a security officer, apparently for inefficiency, on or about 27 April 1992. He has not worked gainfully since May of 1992.

The learned trial judge in his reasons notes most of the matters I have referred to, but does not make any finding as to what if anything occurred in about May 1992 which made the respondent unemployable. He does speak of the plaintiff continuing to work "despite suffering increasing pain from his back injury", but no more specific finding is made. Indeed the respondent did not consult Dr Curtis until more than 12 months after ceasing work for the last time; the first consultation was on 20 July 1993.

In dealing with the respondent's pre-accident employment it should also be noted that he changed jobs regularly. From November 1988 to the date of the accident he had some 10 employers and never stayed in the one job for more than about three months.

The respondent claimed past economic loss on the basis of
the calculation set out in exhibit 9. The learned trial judge
noted that calculation involved a number of assumptions.
Firstly that the respondent would have been in full time
employment for the whole period of approximately four years
prior to trial; and secondly that employment would have been as
set out in the exhibit and on those terms. That involved
working for 172 weeks continuously as a truss fabricator at
approximately $507 net per week. As the learned trial judged
noted, the calculation in exhibit 9 (after deducting moneys
actually earned in the sum of $9,436) established a pre-trial
economic loss of $86,774. Because the respondent had told the
occupational therapist that had he not been injured he would
have remained in continuous employment with the appellant, the
learned trial judge thought it more appropriate to assess past
economic loss on the basis that over the four year period prior
to trial he would have been in continuous employment with the
appellant; on the basis of his wage as at the date of the
accident remaining constant throughout that resulted in a total
net loss of $65,018. After bringing into account actual
earnings that left a pre-trial loss in the sum of $55,581.

The learned trial judge referred to "the usual imponderables involved in these types of assessment". He referred to the "substantial periods of unemployment before accepting work with the defendant". But on the other hand he referred to evidence from two former employees who "speak highly of him". The learned trial judge was also influenced by the fact that the respondent may have been motivated by the fact that he had fathered a child to maintain more regular employment. For all those reasons he did not discount his calculation other than to allow the round figure of $55,000 as past economic loss.

The main complaint raised by counsel for the appellant was that there was no discounting because of the significant periods of unemployment prior to trial, and because the respondent's pre-existing back condition which could have resulted in his being unemployed in any event during those four years. When asked to put a figure on the extent of the discounting which should have been made, counsel for the appellant nominated 10%, a rather conservative figure.

Were that the only complaint it may well be that this court would not interfere with the assessment. But there are other matters which will be addressed which justify the intervention of this court. For that reason it is appropriate for this court to make a discounting.

Given the plaintiff's pre-accident working history, and given the pre-existing back condition from which he was suffering, a discounting of at least 10% was required in this case. The figure of $55,000 for past economic loss should therefore be reduced to $49,500.

There has to be a consequential adjustment to interest allowed on past economic loss. The respondent received $19,749.14 by way of weekly payments from the Worker's Compensation Board, and that amount must be deducted before assessing interest. Interest should therefore be allowed on the sum of $29,750. The learned trial judge allowed interest at the rate of 6% per annum over the four year period and that is appropriate. Interest will therefore be allowed in the sum of $7,140.

The plaintiff claimed a total of $19,110 for past care on the Griffiths v Kerkemeyer principle (exhibit 8). The learned trial judge allowed $10,000 and there is no appeal against that award. That is so, even though the video evidence at least strongly suggested that the respondent was able to do much more for himself than he was prepared to admit in evidence.

The attack is on the $16,000 awarded for future care. In making that calculation the learned trial judge referred to "imponderables" and observed that "predicting the future is even more problematic". He went on to make a calculation based on services of one hour per day for five days per week over a ten year period; he arrived at a figure of $20,500. He then noted that if the same calculation was made on the basis of four days a week one arrived at a figure "of little over $16,000".

In my view the learned trial judge erred in not directing his mind to the specific evidence before him as to the respondent's likely future needs. He failed to have due regard to the video material and to the evidence of Dr Curtis that at least on "good days" the plaintiff would be able to do most, if not all, of the tasks with respect to which this claim was concerned.

The learned trial judge did not make any allowance for the fact that the respondent's disabilities at trial were less severe than they were in the past. His calculation appears to be at odds with his assessment for past care.

The appellant contended for a reduction to $8,000 under this head, and that is the most which could be justified on the evidence.

In approaching the assessment of future economic loss the learned trial judge began by quoting extensively from the report from the occupational therapist. That is not all that helpful, particularly given the video evidence of what the respondent was able to do not long before trial.

Notwithstanding the occupational therapist's evidence, the learned trial judge was "not prepared to find that he is unemployable on a commercial basis". He directed his mind to what the respondent earned shortly after the accident as a delivery driver, a security officer, and a truss fabricator in making his calculation. Taking the net earnings in each of those occupations over a ten year period and discounting at 5% he arrived at a range of $63,000 to $100,000 on the basis that the plaintiff's loss was of the order of 50% of his earning capacity. Because he considered the respondent would have difficulty finding employment, and would probably spend significant periods without any employment, he allowed the higher figure of $100,000 by way of future economic loss.

That does not, in my view, contain any appropriate discounting for a number of factors. It does not have regard to the respondent's pre-trial work history with the significant periods of unemployment there found. It does not make any allowance for the pre-existing back condition from which the respondent was suffering, and recognise that he was vulnerable to the onset of back pain in any event. At all points the learned trial judge adopted figures most favourable to the respondent. The calculation was based on the top earnings for the maximum period. There are only two concessions to the appellant. Firstly Dr Curtis put the loss as between 50% and 60% of the respondent's earning capacity and the judge adopted 50%. But that was on the high side given that the occupational therapist had placed the loss as of the order of 40% of the earning capacity. Secondly, no allowance was made for increases in wage levels.

On the evidence the chances of the respondent exercising his earning capacity continuously at the upper level was remote. Taking that into account, his past employment history, his pre-existing back condition, and discounting for the usual vicissitudes of life, an award of approximately $60,000 is more than adequate to compensate the respondent for future loss of earning capacity.

In summary, the award of $55,000 for past economic loss should be reduced to $49,500, and the interest component thereon should be reduced from $8,660 to $7,140; the award for future Griffiths v. Kerkemeyer loss should be reduced from $16,000 to $8,000; and the award for future economic loss should be reduced from $100,000 to $60,000. When those adjustments are made the total assessment becomes $175,832.31.

That has to be reduced by 10% because of contributory negligence, giving a reduced figure of $158,249.07. There then has to be deducted the refund to the Worker's Compensation Board of $32,863.45, leaving a final balance of $125,385.62.

The appeal should be allowed, and there should be substituted for the sum of $174,903.63 appearing in the judgment the sum of $125,385.62.

The respondent should pay the appellant's costs of and incidental to the appeal to be taxed.