Livermore v Wm McQueen and Co Pty Ltd

[1992] QCA 224

IN THE COURT OF APPEAL	[1992] QCA 224
SUPREME COURT OF QUEENSLAND	Appeal No. 53 of 1992
BETWEEN:

GEOFFREY STANLEY LIVERMORE

(Plaintiff) Respondent

AND:

WM MCQUEEN & CO. PTY. LTD.

(Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 4th day of August 1992

The appellant was the defendant in an action for personal injuries by the respondent arising out of an accident which occurred on 2 June 1983 during the course of the respondent's employment with the appellant as a mine surveyor. He was injured when part of the face of a wall of a mine collapsed as a result of which he fell and sustained an injury to his lumbar sacral spine. He was then only 31 years of age having been born on 28 January 1952.

The trial judge awarded the respondent a total of $475,308 and gave judgment for him in the sum of $426,232.80 after deducting the amount required to be refunded to the Workers Compensation Board. It was agreed before us that his Honour had made two arithmetical errors in consequence of which, on his findings, the total damages should have been $519,308 and judgment should have been given for $470,231.81. The two arithmetical errors were in respect of past economic loss and future economic loss. His Honour's assessment of the former at $160,000 should have been $188,000 and his Honour's assessment of the latter at $190,000 should have been $206,000.

The appeal is against the amount of damages awarded, liability not having been in issue at the trial, and specifically against the amounts assessed for past and future economic loss. It was submitted for the appellant that the differences between the amounts which should have been awarded under these heads of damage and those which were awarded were such as to substantially alter the total award.

The respondent's initial injury was a disc hernia at L5-S1 on the right side which was removed by a lumbar laminectomy.

Prior to the operation the respondent had substantial and increasing back pain and impaired mobility requiring him to cease his former employment notwithstanding that he had continued at work after the injury for about three weeks. The operation gave him some temporary relief but he remained and still remains with disc degeneration and instability causing pain from time to time and loss of movement. Assessments of the percentage disability in his back varied between 15 and 20% and his Honour accepted this as the range. His Honour also accepted that the respondent suffers from chronic sciatica, that he is unfit for heavy work or employment involving any degree of lifting and bending and that he is fit for light work, provided he is careful, although he may not be able to work a full eight hour day without resting.

The trial judge found that the respondent was unable to carry out his previous occupation of mining surveyor and that he was totally incapacitated for such work. That finding was supported by the medical evidence and by the fact that he was rejected for such employment, because of his disabilities, after the accident and, notwithstanding a faint argument to the contrary, was plainly right. However, it was equally plain that there was some work which he was capable of doing after the accident and which he remains capable of doing. Whether his Honour's assessments in respect of past and future loss of earning capacity were so high as to make the total assessment erroneous depends on the extent of that capacity.

The evidence on that question was of the most general kind.
Although it was common ground that the respondent had some
residual earning capacity there was no precise proof of what
that was in the sense of identification of the kind of work
which he was capable of doing together with the rates of pay

applicable to that work. We now turn to the evidence and

findings on that question.

The respondent's work as a mining surveyor involved some physical activity, including work underground in mines and exploration and pegging of leases in rough terrain, and some office work. The respondent was incapable of assessing the proportions of each apparently because that varied so much.

Sometimes, as he said, he would spend days underground without doing any office work. There were thus probably two reasons why the respondent could no longer do that work. The first was that there were periods of sustained physical work in bent and other awkward positions, and he was not capable of doing that sort of work notwithstanding that, during other periods, he was quite capable of doing whatever was required. The other was that, once he mentioned his back disability to a prospective employer, he would be unlikely to be offered a job because employers would suspect that there would be periods during which the respondent would not be able to cope with the work.

Nevertheless the respondent's activities since his accident demonstrate a fair degree of physical capacity; a capacity to do light physical work and also occasionally to do quite heavy physical work. He sometimes saddled up horses, both with lighter racing saddles and heavier exercise saddles.

He drove a tractor for periods up to two hours. He broke in horses and though this was not by riding them but by leading them around, it is difficult to conceive that this would not have placed considerable strain on his back. He sometimes controlled stallions when serving mares and although he said they were quiet it is again difficult to imagine that there would not have been occasions when they would not have placed considerable strain on his back. He also unloaded feed bags of 40 kilo weight, shoed horses, rowed a boat and hand winched up a ramp on a horse float; all of which required the exercise of considerable physical strength and back movement. In his favour it must be said that some of these activities caused subsequent pain or ache; and that there is a difference between occasionally performing these tasks and performing them on a continual basis such as might be required in the course of employment.

It is important in considering the plaintiff's earning capacity that it was by no means restricted to labouring type work. He was, according to the uncontradicted evidence of a psychologist, in the superior range intellectually. Moreover, he qualified as a mining surveyor without doing the part-time course at a technical college. He started on this course but, as he explained, his overtime prevented him from attending so he borrowed correspondence papers and literature from other surveyors and students, studied them, and thereby passed the examination. Though there is no evidence of the level of difficulty in such a course, this is some evidence of his capacity to apply himself to study.

On the other hand, a clinical psychologist gave evidence that the plaintiff had neither the "attitudinal or motivational background" to undertake further studies.

Since the accident he has undertaken a six weeks night time course in computers which he enjoyed. However, he was unable to sit at a computer for three hours, the length of each night's lesson. After about an hour and a half he had to get up and thereafter the period during which he could sit without pain decreased. He was, he said, better standing thereafter than sitting. It is not surprising that he could not sit for long periods bending over a computer.

On the other hand, he was apparently quite capable of mastering the computer at least to the level required of him in the course.

Apart from two unsuccessful attempts to obtain employment as a mining surveyor, the respondent has not sought any employment since his accident. However, prior to his accident he had a small horse stud and horse training facility which he then conducted as a hobby. After the accident he expanded it into a business. It was during the course of this business that he has engaged in most of the physical activity referred to earlier. It should also be mentioned that in this business he has relied very much upon the labours of his two elder daughters and his wife as well as some employed staff. He is a licensed trainer and clearly enough has some skills in this area. However, the business, no doubt like many others in the present climate, has not prospered. Indeed, he appears to have consistently made losses as his Honour found. Nevertheless his Honour also concluded, we think correctly, that the respondent acted reasonably for a time in attempting to make a success of this business. His Honour concluded that the respondent ought reasonably to have realised that the business would not make a profit by 30 June 1989. The appellant's alternative submissions that the respondent was simply indulging in his hobby or that at some unspecified time before 30 June 1989 he ought to have realised that it would not be successful and to have sought other employment, cannot, we think, be sustained. The respondent, having a qualification and some skill in training horses, was justified in attempting to earn his income from that source until it became reasonably clear that his efforts were likely to fail.

The result is that, until 30 June 1989, the respondent was entitled to damages at the rate applicable to his pre- accident employment.

As to the period thereafter, the learned trial judge assessed the plaintiff's loss of earning capacity at 60 per cent. As the net income which the respondent would have earned as at 30 June 1989 as a mining inspector was $29,500 per annum, this would have left him with an earning capacity then of only about $11,800 per annum. There is no evidence of what the present equivalent of that income would be or of what categories of employment would have had wage rates at that level. However, Mr Clifford Q.C. for the respondent submitted that this would have been at about the rate of salary of a low grade clerk, presumably someone who does photocopying and filing and such like. Accepting this argument the respondent had an earning capacity after the accident substantially higher than this and that consequently his Honour must have erred in fixing the level of the respondent's loss of earning capacity.

We appreciate the difficulty which his Honour had in the absence of any specific evidence and we accept that his Honour was obliged in the circumstances to fix damages for loss of earning capacity at a percentage figure. However, given that the respondent still had a substantial physical capacity to work, as demonstrated by the work which he did, and that he had both a superior intellectual capacity and what appeared to be a good deal of motivation to apply himself to both physical and mental work, his Honour fixed that percentage loss of earning capacity at far too high a figure. An appropriate percentage loss in the circumstances would have been 40 percent.

Accordingly, the respondent's loss of earning capacity from 1 July 1989 to trial should have been assessed at $30,666.48 making his total loss of earning capacity to the date of trial $179,429 and his future loss of earning capacity, allowing for the usual contingencies, $137,000. Interest upon past loss of earning capacity should, in consequence, be $75,170.94. Substituting these sums for the sums of $188,000 and $206,000, the amounts which his Honour would have assessed, but for arithmetical errors and the further sum for interest upon past loss of earning capacity, there should be judgment for the respondent in the sum of $402,570.59.

The judgment below should therefore be set aside and in lieu thereof there should be judgment for the respondent in the sum of $402,570.59 with costs below. The appellant should have its costs of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 53 of 1992
Before the Court of Appeal
Fitzgerald P. Davies J.A. Lee J.
BETWEEN:

GEOFFREY STANLEY LIVERMORE

(Plaintiff) Respondent

AND:

WM MCQUEEN & CO. PTY. LTD.

(Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 4th day of August 1992

MINUTES OF ORDER: Appeal allowed with costs.

The judgment below is set aside and in lieu thereof there is judgment for the respondent in the sum of $402,570.59 with costs below.

CATCHWORDS:	DAMAGES - MEASURE OF - APPEAL - respondent mine surveyor injured when part of face of wall of mine collapsed - whether trial judge erred in fixing precentage loss of earning capacity at 60% given respondent's substantial remaining physical capacity, superior intellectual capacity and motivation
Counsel:	R.R. Douglas Q.C. with him P.A. Hastie for the Appellant J.J. Clifford Q.C. with him W.A. Martin for the Respondent
Solicitors:	Morris Fletcher & Cross for the Appellant Brittan & Associates for the Respondent
Hearing Date/s:	27 July 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 53 of 1992
BETWEEN:

GEOFFREY STANLEY LIVERMORE

(Plaintiff) Respondent

AND:

WM MCQUEEN & CO. PTY. LTD.

(Defendant) Appellant

__________________________________________________

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FITZGERALD P.
DAVIES J.A.
LEE J.
__________________________________________________

__

Reasons for Judgment of the Court delivered the
4th day of August 1992
__________________________________________________

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"APPEAL ALLOWED WITH COSTS.
THE JUDGMENT BELOW IS SET ASIDE AND IN LIEU
THEREOF THERE IS JUDGMENT FOR THE RESPONDENT IN
THE SUM OF $402,570.59 WITH COSTS BELOW."