MacPhee v Wanless

[1998] QCA 322

COURT OF APPEAL

[1998] QCA 322

de JERSEY CJ
McMURDO P

McPHERSON JA

Appeal No 2335 of 1998

KENNETH PETER MacPHEE	Appellant (Plaintiff)
and
LEIGH DOUGLAS WANLESS	Respondent (Defendant)

BRISBANE
..DATE 28/09/98
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THE CHIEF JUSTICE: The appellant appeals against a 50 per
cent apportionment of contributory negligence against him as
plaintiff and in relation to aspects of the assessment of
damages.
He injured his back on 3 January 1991, employed by the
respondent as a carpenter carrying out repair work at the
Lakes Creek Hotel.

The appellant was then 48 years old. He suffered a musculo- ligamentous strain which probably advanced by a number of years the onset of symptoms flowing from an underlying degenerative condition of his back.

The appellant sustained the injury while he was moving a compressor which was on wheels. He was moving it from a cold room across a small gap onto a verandah.

The learned District Court Judge found that the respondent breached his duty as employer, and there is no challenge to that. He then found the appellant 50 per cent contributorily negligent on the basis that, as an experienced carpenter, he failed to take an obvious, commonsensical step and thereby reasonable care for his own safety.

The appellant could have avoided the risk either by having
another person assist him as he ordinarily arranged, save
that he said that there was no-one readily available this
evening, or by blocking the gap which could easily have been
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done within a few minutes.
The appellant submits that the learned Judge failed to take
proper account of the possibilities of inattention,
preoccupation with matters in hand, inadvertence, fatigue,
distractions and the like, the sorts of considerations
mentioned in Commissioner for Railways and Ruprecht (1979),

142 CLR 563.

The absence of particular evidence about those matters
aside, there is really no basis for reliably concluding that

the learned Judge ignored such possibilities.

In the ultimate analysis, he was strongly influenced and, in
my view, rightly so by the appellant's considerable
experience in the field, by the availability of steps to
avoid the risk, by his having carried out the operation many
times previously, by the fact that he usually arranged
assistance - in circumstances when he had not previously
done so, he had found the task difficult, on his evidence -
and by the obviousness of the other approach which he could
have taken but did not; that is, arranging to block the gap.

In my opinion, the approach taken by the learned Judge in finding contributory negligence was clearly open and in accordance with the approach discussed in the authorities including Commissioner for Railways v. Ruprecht.

The appellant did, however, separately challenge the equal
apportionment. Whether this Court would have imposed an
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equal apportionment is really by the by when one takes
account of the orthodox approach to such challenges as
discussed, for example, in Podrebersek v. Australian Iron
and Steel Pty Ltd (1985) 59 ALJR 492 where, at pages 493-4,
the Court said this:

"A finding on a question of apportionment is a finding
upon a 'question not of principle or of positive
findings of fact or law but of proportion, of balance
and relative emphasis and of weighing different
considerations. It involves an individual choice or
discretion as to which there may well be differences of
opinion by different minds'. (British Fame, owners v.
McGregors, owners, (1943) Appeal Cases 197 at 201).
Such a finding if made by a Judge is not lightly
reviewed."

I consider that if we were of the view that a 50 per cent apportionment against the appellant here was somewhat severe that it would nevertheless involve a departure from the orthodox approach to such issues as indicated by that case, for example, for us to interfere now.

The appeal against the apportionment should, in my view, not succeed.

The challenge to quantum concerns the learned Judge's
allowance in respect of economic loss. Four months
following the incident, and in respect of the period 1 July
1990 to
30 November 1993, the appellant operated a business called

"Lattice Affair".

His claim of loss was based on his being disabled for a day
a week. The Judge accepted that he suffered increasing
problems with his back over that period but the Judge
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pointed out that his role in the business was mainly
managerial. The Judge allowed a global amount of $3,000
which, we are told, calculates out at $24 a week.
The appellant claims this to be inadequate when seen against
the appellant's previous earnings but, as the Judge also
pointed out, the appellant did not establish any particular
days as lost. No attempt was made to prove any particular
financial loss and whether any time in fact lost by the
appellant resulted in financial loss to him was left as a
matter for mere conjecture. The evidence was that the
business was in fact profitable. The appellant has failed

to show any ground for increasing this allowance made.

The next challenge concerns the learned Judge's allowance of
another global amount of $5,000 for what he termed a
presumed diminution in earning capacity over the period 1

January 1994 to trial.

The Judge expressed these findings:

"From 1 January 1994 to 5 November 1994, the plaintiff
did not work. Part of the proceeds from the sale of
the business 'Lattice Affair' was used by his wife to
fund the commencement of a new business, 'Better Built
Sheds' in January 1994. In November 1994, the
plaintiff commenced working in the business, eventually
buying a half interest in the business. He worked in
the business until it went into liquidation in March
1996.

It is not suggested that he suffered any economic loss during the period he worked in the business. Since the failure of the business, however, the plaintiff has experienced difficulty in finding employment. During this period of time the plaintiff was probably disabled from labouring because of the condition of his knees.

On the theory the injury to the plaintiff's back in
January 1996 advanced the onset of symptoms associated
with his underlying condition it can be postulated he

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suffered a diminution in his earning capacity over this
period of time. The diminution would reflect the
additional limitation his back problems imposed on the
range of sedentary work open or potentially open to the
plaintiff.

There is no reasonably precise method of calculating his presumed loss over this period. For most of the period the plaintiff worked at Better Built Sheds and

suffered no loss. For a substantial part of the year
1994 the plaintiff was unemployed. A global amount of
$5,000 is I think adequate allowance for the presumed
diminution in his earning capacity over this period of
time."

In my opinion that approach is all supported by the evidence. One point taken by the appellant in his first outline of argument was a claim that the Judge overlooked his being out of work for the period 1 January 1994 to 5 January 1994 but that is not so when one sees His Honour's reasons, for the $5,000 is expressed to cover the whole of the period.

Now, the evidence shows that in this period following the sale of the business Lattice Affair at the end of 1993 the appellant went on holidays for five to six weeks and then sickness benefits. He undertook a computer-aided drafting course through the Commonwealth Rehabilitation Service and remained on sickness benefits until 5 November 1994. For the following period to trial which occurred in February 1998 the Judge was rightly strongly influenced, in my view, by the medical evidence.

In essence, the appellant's severe and disabling
osteoarthritis in both knees would have prevented his
working as a carpenter after about the age of 51 or 52
irrespective of the back problems.
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Symptoms of the back degeneration accelerated by this strain
would thereafter have imposed some additional but rather
vague and indefinite limitation on his ability to carry out
sedentary work and the Judge's approach to this may be
illustrated through a footnote to his judgment where he

said:

"Dr Douglas theorised the incident advanced the onset
of symptoms by approximately seven years. Although
this is a possible conclusion I am not persuaded the
plaintiff suffered continual back pain from the date of
the incident. Although I think it probable that the
injury advanced the onset of symptoms it is not
possible to be precise. The injury may have advanced
the onset of symptoms by as much as three and a half
years. However, that conclusion is somewhat
problematical in the absence of a satisfactory history
demonstrating the original injury was a relatively
serious one."

The assessment of the loss to trial over this period beginning 1 January 1994 was obviously incapable of precision. The appellant's knee disability was gradually diminishing his capacity to do heavier work while on the other hand the effects attributable to the accident were diminishing.

I note that the appellant said in his evidence that the knee
problems kept him out of work in about 1994. There was no
reliable evidence of actual loss. The claim which was made
- that is, of $522 per week for 1994 was to my mind plainly

unsustainable.

I consider His Honour's award of $5,000 based on a broad and
global approach to be unassailable. Again, whether or not
this Court would have ordered somewhat more is in the end
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not quite to the point. Consistently with authority I do
not consider that we would be justified in interfering with
this amount.
I note in particular my own view that His Honour appears to
have gone about his assessment of damages in a very careful
way as is apparent from the reasons he has expressed.
There was a challenge in the notice of appeal to the Judge's
having made no allowance for future economic loss but that

was not pursued.

In all these circumstances I would dismiss the appeal.

THE PRESIDENT: I agree with the order proposed by the learned Chief Justice and with the reasons he has given.

McPHERSON JA: I also agree with the orders proposed and the reasons given.

THE CHIEF JUSTICE: The appeal is dismissed.

MR BRITTON: If it please the Court I ask for costs.

MR WHITE: I don't oppose the order.

THE CHIEF JUSTICE: With costs to be taxed.

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