Lee v Diesel and Auto Service

[1993] QCA 6

IN THE COURT OF APPEAL	[1993] QCA 006
SUPREME COURT OF QUEENSLAND

Appeal No. 144 of 1992

BETWEEN:

ROBERT ROLAND LEE

(Plaintiff) Respondent

AND:

DIESEL AND AUTO SERVICE

(Defendant) Appellant

The President
Mr. Justice Pincus

Mr. Justice de Jersey

Judgment of the Court delivered the 5th day of February 1993

Appeal allowed to extent of substituting for the amount of judgment given in the District Court, the amount of $62,704.93.

Respondent to pay the appellant's costs of and incidental to

the appeal to be taxed.
IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 144 of 1992

Before the Court of Appeal

The President
Mr. Justice Pincus

Mr. Justice de Jersey

BETWEEN:

ROBERT ROLAND LEE

(Plaintiff) Respondent

AND:

DIESEL AND AUTO SERVICE

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the fifth day of February 1993

MINUTE OF ORDER:  Appeal allowed to extent of substituting
for the amount of judgment given in the
District Court, the amount of $62,704.93.
Respondent to pay the appellant's costs of
and incidental to the appeal to be taxed.

CATCHWORDS:
Appeal from award of damages for economic loss - whether Judge
failed to give appropriate weight to unchallenged medical

evidence.

Counsel:	P. Goodwin for the appellant A.J. Williams for the respondent
Solicitors:	A.J. Sullivan for the appellant Messrs Finemore Walters and Story for the respondent

Hearing Date: 26 October 1992

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 144 of 1992

BETWEEN:

ROBERT ROLAND LEE

(Plaintiff) Respondent

AND:

DIESEL AND AUTO SERVICE

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the fifth day of February 1993

The respondent was injured on 5th February, 1988 in the course of his employment. He was then 25 years old, and was injured when he fell some 12 feet to a floor at his place of work. He suffered soft tissue injuries to the cervical and lumbar spine and an injury to his left knee. The learned trial Judge in the District Court assessed damages at $97,704.93, including $22,000 for pain, suffering and loss of amenities, $35,000 for past economic loss and $30,000 for future economic loss (which included a sum in respect of the cost of future surgery). The appellant's challenge before us was limited to the components of $35,000 and $30,000 for economic loss.

The Judge found that as a result of the injuries to the respondent's cervical and lumbar spine, he is left with a permanent loss of about 5 per cent of whole body function. Assessing the respondent's loss was complicated by the circumstance that in September, 1986, he suffered injuries in a motor cycle accident. Those earlier injuries included a central dislocation of the left hip with a severe fracture of the acetabulum, and injuries to the lower back and neck. He had returned to work by about 10 months prior to the further accident in February 1988. The condition of his hip had stabilised by then, but in August, 1988 he was implanted with an artificial left hip. The Judge found that that related to the injuries sustained in 1986, and "not from the subject incident at all". Convalescence following the hip replacement operation left the respondent unable to work for approximately five months.

The Judge described Dr Robinson as "the orthopaedic

surgeon most familiar with his injuries from both incidents".
In a report tendered by the appellant, with the respondent's
consent, Dr. Robinson said that the period of incapacity for
employment because of the 1988 injuries would probably have
been only one to three months. The Judge did not however
accept that opinion, notwithstanding that he accepted the rest
of that doctor's views. The Judge referred to the circumstance
that the respondent had resumed work prior to this accident,
and mentioned the need to determine when the respondent would
become "in truth, unemployable". He then concluded in these
terms:

"For past economic loss I allow for contingencies and for the $10,818.50 which has been properly paid to the plaintiff by the board. The award under that head shall be adjusted down to $35,000."

It may be that in making that assessment for past economic loss, the Judge was working from ex. 8, a schedule showing details of the wages the respondent could have earned from the date of the accident to trial had he remained in full employment. The total on that schedule is approximately $63,000. The Judge may have deducted approximately $7,000, covering the period of total incapacity following the respondent's hip replacement operation which was not referable to this accident. But accepting that, there is nevertheless in the end no reliable indication of precisely how the Judge then worked from the balance of $56,000 to the $35,000 which he allowed. He has clearly allowed for a period of incapacity substantially in excess of the maximum three months to which Dr. Robinson referred: so far as one can surmise, the period for which he has allowed, on a straight week by week calculation, would approach two and a half years.

While of course the Judge was not bound strictly by
Dr. Robinson's one to three month estimate, the extent of his

departure from that estimate was not justified on the evidence.

Dr. Robinson's opinion was not tested by cross-examination.

Indeed, that doctor did not give any oral evidence. Dr. Van der Walt, the orthopaedic surgeon who did give oral evidence, did not express any view on this aspect which would support the Judge's approach. When Dr. Robinson's view was put to Dr. Van der Walt during cross-examination, and he was asked to comment, he responded in this way:

"It is very difficult for me to say. I can't be specific about that. I think that his neck injury might have been of sufficient severity to keep him off longer, particularly from manual type work.

If he was doing, say, just office work, banking, filing?-- I think - well, not having seen him I think I'm not in a position to comment on that."

There was therefore simply no evidentiary justification for the Judge's departing as he did, to that apparent extent, from Dr. Robinson's expression of opinion.

Consistently with this Court's observations in FAI General Insurance Company Ltd. v. Elford (No. 1491/85, unreported judgment given on 1st April, 1992) as to the approach the Court should take on appeals of this nature, we should therefore interfere with the assessment of the component for past economic loss.

Giving appropriate weight to Dr. Robinson's opinion, and acknowledging that following the operation in August, 1988, the respondent was incapacitated for approximately five months for reasons unrelated to this accident, it is appropriate to allow, for past economic loss, an amount limited to loss for the period from the date of the accident to the date of that operation. That period is approximately six months, and, in light of ex. 8, warrants an award of approximately $6,000. The component of $35,000 should therefore be reduced to $6,000.

As to the $30,000 allowed for future economic loss, the

Judge said:

"I am satisfied that the motor cycle accident of 1986
would have considerably shortened his working life.
Even though the plaintiff had returned to the
workforce by the time of the subject injuries I think
the combination of his earlier physical injuries and
his low pain threshold would have caused his
effective working life to be over by the time he
reached 45 years. Dr Robinson believes the subject
incident has resulted in incapacity for employment
for only one to three months. Although I have relied
on Dr Robinson's reports in other respects, I do not
accept that as an accurate assessment for it seems to
give too little weight to several of the factors
which I must take into account. These include the
fact that the plaintiff was back to work when he
sustained the subject injuries and the need to
pinpoint, for assessment purposes, the stage in his
life when he will become, in truth, unemployable.
However, I think that in time the plaintiff will
return to the workforce in one capacity or another
and I will allow $30,000 as a capitalised sum under
that head. This includes an allowance for future
surgery."

The Judge appears thereby to have adopted what is customarily termed a "global" approach. For the appellant, Counsel submitted that there was no evidence of inability to work, referable to this accident, after the one to three month period to which Dr. Robinson referred. But as the respondent's Counsel pointed out, to allow nothing for the future would involve assuming that the respondent was unemployable following the hip replacement operation for reasons unrelated to this accident, and that the continuing disability resulting from this accident had no effect on his working capacity. Neither of those assumptions would be justified. In particular, there was in the plaintiff's own evidence, taken with the medical opinion, basis for the conclusion that his continuing disability referable to this accident would make work more difficult, although not of itself rendering him unemployable.

The $30,000 allowed by the Judge would approximately reflect a one third reduction in earning capacity in respect of a period of approximately 10 years. On that basis, the award would be justifiable and this Court should not interfere.

It follows that the award should be reduced by $29,000 (the difference between the $35,000 allowed for past economic loss and the $6,000 which should be allowed) to $68,704.93.

But from that sum, there should then be deducted $6,000 as the amount repayable to the Workers' Compensation Board (cf. s. 9A Workers' Compensation Act). We calculate that as approximately six tenths of the amount of the payments recorded in ex. 3 (p. 35 record) referable to the period of six months for which, we have found, the respondent should be compensated in relation to past economic loss.

It is unfortunate that more detailed reasons were not given for the basis for the conclusion that the damages for economic loss should be set in those amounts. We were left largely to surmise as to that basis, with Counsel forced to engage in speculation. In circumstances like these, it behoves Counsel to request the Judge to descend to particularity, both to ensure that the basis for the judgment is properly understood by the parties, and so that its accuracy may confidently be explored, if necessary, on appeal.

The appeal is allowed, to the extent of substituting, for the amount of the judgment given in the District Court on 17th June, 1992, the amount of $62,704.93. The respondent must pay the appellant's costs of and incidental to the appeal to be taxed.