McNamara v Oaky Creek Coal P/L
[1999] QCA 485
•26 November 1999
SUPREME COURT OF QUEENSLAND
CITATION: McNamara v Oaky Creek Coal P/L [1999] QCA 485 PARTIES: PATRICK DANIEL McNAMARA
(Plaintiff/respondent)
v
OAKY CREEK COAL PTY LTD
ACN 010 202 936
(Defendant/appellant)FILE NO/S: Appeal No 5366 of 1999
Appeal No 5367 of 1999
SC No 80 of 1994
SC No 15 of 1996DIVISION: Court of Appeal PROCEEDING: Appeal ORIGINATING COURT: Supreme Court at Mackay
DELIVERED ON: 26 November 1999 DELIVERED AT: Brisbane HEARING DATE: 11 November 1999 JUDGES: Thomas JA, Williams and Atkinson JJ ORDER: (i) Appeal No 5366 of 1999: Appeal allowed, substitute the figure of $167,924.04 for the figure of $252,532.57 appearing in the judgment. Order that the respondent pay the appellant’s costs of the appeal to be assessed.
(ii) Appeal No 5367 of 1999: Appeal allowed, substitute the figure of $17,129.75 for the figure $32,129.75 appearing in the judgment. Order that the respondent pay the appellant’s costs of the appeal to be assessed.
CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS IN TORT – measure of damages – personal injuries – past economic loss – respondent employed by appellant as a Protection Services Officer – position required high level of physical fitness – whether evidence established that three physical factors, for which appellant was not responsible meant that it was unlikely that respondent would have remained a Protection Services Officer throughout the period – whether trial judge erred in failing to discount award – award reduced to $72,000.00.
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS IN TORT – measure of damages – personal injuries – future economic loss – whether respondent’s position had worsened because of his compensable injuries – respondent has been virtually in full time work since redundancy – non-compensable physical conditions would also have affected respondent’s future working life – respondent would not have been able to work for appellant as a Protection Services Officer from September 1999 because of changes to appellant’s operations – no award in Action No 15 of 1996 and award reduced to $60,000 in Action No 80 of 1994.COUNSEL: Mr R C Morton for the appellant.
Mr J R Baulch for the respondent.SOLICITORS: Corrs Chambers Westgarth for the appellant.
Taylors Solicitors for the respondent.
THE COURT: At all material times the respondent was employed by the appellant as a Protection Services Officer (PSO), but most of his time was spent fulfilling storeman’s functions in the warehouse. The position of PSO required the respondent to perform functions of safety and rescue should the occasion arise and that demanded, as will be discussed later, a fairly high degree of physical fitness.
The respondent sustained injuries in the course of his employment to his right shoulder on 13 September 1991, 11 February 1992, and 9 April 1992 and on 15 January 1993 he sustained an injury to his left shoulder. In Action No 80 of 1994 in the Mackay Registry he claimed damages with respect to those injuries.
On 11 March 1993 the respondent sustained an injury to his lower back in the course of his employment and by Action No15 of 1996 in the Mackay Registry he claimed damages with respect thereto.
The two actions were heard together and the learned trial judge found that negligence was established with respect to each incident. There is no challenge to those findings. The learned trial judge then proceeded to assess quantum as follows:
Action No 80 of 1994
Past economic loss $119,217.67 Interest on past economic loss $29,800.70 Future economic loss $75,000.00 Loss of superannuation benefits $11,653.66 Medical and pharmaceutical expenses and provision of care $6,000.00 Pain and suffering $32,500.00 Special damages $21,799.64 Loss of subsidised housing $16,380.00 Interest on loss of subsidised housing $2,866.50
Those figures actually total $315,218.17 but the learned trial judge arrived at the figure of $315,228.17. Thereafter $62,695.60 had to be deducted, being the amount of WorkCover payments. His Honour gave judgment for $252,532.57 whereas the correct amount should have been $252,522.57.
Action No 15 of 1996
Future economic loss $15,000.00 General damages $12,500.00 Interest $840.00 Special damages $4,485.70 Total: $32,825.70 Less WorkCover payments $695.95 Net damages (judgment) $32,129.75
The appellant contends that the awards were manifestly excessive; in particular it was submitted that the amounts awarded in Action No 80 of 1994 for past economic loss, interest thereon, future economic loss, loss of subsidised housing and interest thereon, and the amount awarded in Action No 15 of 1996 for future economic loss, were manifestly excessive.
Past Economic Loss – Action No 80 of 1994
The learned trial judge effectively awarded the respondent, without any deduction whatsoever, the full amount of the difference between what the respondent had earned between the date of the first injury and trial, and the earnings of a comparative employee during that period. At the outset of the trial counsel for the appellant informed the court that it accepted that an employee by the name of Kirby was a “comparative employee” and that the amount put forward by counsel for the respondent as to Kirby’s earnings was accurate. Of course that meant no more than that those figures indicated what the respondent could have earned if he was fully fit and remained employed as a PSO throughout the whole of the period. It was not an admission that the respondent was entitled to the amount as calculated; it was still for the learned trial judge to determine whether the evidence established that the respondent would have earned at that level throughout the whole of the period.
The principal contention of counsel for the appellant is that the learned trial judge failed to make any discount because of the probability that the respondent would not have been able to continue in the relevant position because of physical factors independent of the injuries for which the appellant was responsible.
The appellant pointed to three matters which, on its case, should have resulted in a discounting:
1. Dr Bulwinkel, the orthopaedic surgeon who operated on each of the respondent’s shoulders, considered that the respondent suffered from a congenital condition of the shoulders which “significantly pre-disposed him to this type of tendon failure under stress”.
2. The respondent suffered from a degenerative condition of his neck which commenced to trouble him from on or about 1 April 1993. That was assessed by Dr White, an orthopaedic surgeon, as constituting in January 1996 “a permanent partial disability of 10% of the body as a whole”. In the doctor’s opinion the respondent “was obliged to be very careful with his neck.”
3. The respondent suffered from a degenerative condition of his thoracic spine producing interscapular pain. The respondent’s evidence pointed to the initial onset of this pain sometime shortly after July 1993, and he specifically complained of it to Dr Fraser in July 1996.
Counsel for the respondent in re-examination of Dr Bulwinkel obtained a concession that the doctor could not say precisely when a precipitating event for the onset of symptoms given the congenital condition of the shoulders would have occurred. He expressed the view that the respondent’s presentation of symptoms “in his mid 40’s fits pretty much within the medium range and is certainly in the more common age group for the presentation of this type of problem”. Though in his reasons the learned trial judge refers to treatment given by Dr Bulwinkel there is no reference at all to the doctor’s opinion with respect to the congenital condition of the shoulders. There was no evidence to the contrary, and there does not appear to have been any great challenge to the doctor’s evidence in this regard. The only question was when would the condition have become significant in the absence of the specific instances which gave rise to the cause of action. The matter was clearly an important part of the appellant’s case at trial and the failure to advert to the issue in the reasons cannot be explained by saying that the learned trial judge was concentrating on the real issues raised at trial.
During cross-examination of the respondent counsel for the appellant went in some detail through his complaints of neck and interscapular pain. Without quoting in detail from that cross-examination it is sufficient to note that the respondent was taken through statements he made to and relevant to treatment received from Dr White and Dr Fraser and was generally cross-examined as to the impact of those conditions on his physical fitness. The cross-examination ended as follows:
“You see what I suggest to you is throughout this period from about April 1993 whilst you had the headaches and then when you had the interscapular back pain, you really wouldn’t have been able to do a PSO’s job anyhow would you because of those problems? – Yes.
Do you agree with that? – I agree.”
After quoting that passage in his reasons the learned trial judge went on:
“Mr Morton having got that answer placed great store in it. However, when one looks at the early part of the evidence on page 95, it is apparent that the interscapular pain has largely affected him in the mornings rather than throughout the whole day, and that the neck pain, which had been causing problem, was substantially relieved by a chiropractor. Consequently, it did not seem to me in the light of all the evidence that the answer really attributed much to an overall understanding of the nature of Mr McNamara’s problems.”
A careful analysis of the passages in question does not support entirely the observation of the learned trial judge. There were clear concessions by the respondent that he suffered from the interscapular pain for some two years and that it was a problem when he was driving to work. Though he did make mention of the pain being present “in the mornings” it does appear that he was really saying that the pain was more associated with a particular activity, and particularly in the morning.
Further, all the evidence suggests that the neck pain continued after chiropractic treatment. In 1996 the respondent described the headaches associated with that pain as chronic. Whilst chiropractic manipulation relieves the symptoms such treatment is required on a reasonably regular basis. The chiropractor was not called as a witness.
The respondent had in fact been removed from his position as a PSO in September 1992 because of his physical fitness consequent upon the three injuries to his right shoulder. At all times he was aware of the reasonably high level of physical fitness required for continued work as a PSO, and his answer quoted above was a clear acknowledgment that his neck and interscapular problems would have prevented him from working as a PSO from about April 1993. There was no reason for not accepting his statement in that regard.
It follows that there were three factors established by the evidence which required careful consideration when assessing past economic loss. Counsel for the appellant conceded that he could not contend that a clear cut-off point for such loss was established by the evidence. Rather he submitted that because of the three factors there should be a significant discounting in the calculation. Given that the evidence as to the respondent’s congenital condition was not challenged, and that the other relevant factors and their impact were clearly established by the evidence of the respondent himself, the learned trial judge erred in not making a significant discounting. Though there is a discretionary element in the assessment of quantum in situations such as this the award for past economic loss was manifestly excessive and should be reduced.
Given the unchallenged finding that the respondent was a conscientious, hard worker – a person who would endeavour to work despite some disability – it should not be assumed (as contended for by the appellant) that he would not have been able to work as a PSO from approximately mid 1993. If that was the cut-off point then the award for past economic loss would have been of the order of $32,000.
As already observed the three considerations combined require a significant discounting from the optimum amount the respondent could have earned. A discounting of 40 per cent was called for and that would reduce the award for past economic loss in round figures to $72,000. That should be the award under this head.
Interest on Past Economic Loss
Workers’ compensation benefits totalling $19,892 have to be bought into account when assessing interest on past economic loss. It was agreed that interest should be allowed for 7.5 years at five per cent per annum. Interest is therefore allowed in the sum of $19,540.
Future Economic Loss
The respondent received a total in the two actions for future economic loss of $90,000. That represents slightly more than $162 per week from trial until age 65 and approximately $226 per week until age 60.
The findings establish that the impairment to the respondent’s earning capacity arises from an inability to use his arms on a sustained or repetitive basis at or above shoulder height and an inability to perform heavy manual labour arising from his back condition.
The learned trial judge found, in accordance with the evidence, that the appellant’s operations were changing significantly from September 1999, so that from that date the respondent would not have been able to continue working with the appellant in any event. September 1999 was only four months after the trial. In other words apart from that four month period future economic loss had to be calculated on the basis that the respondent would have lost his long standing employment with the appellant for reasons not connected with his compensable injuries.
The appellant’s case is that the respondent’s position after September 1999 was not worsened in any way because of the compensable injuries. Because of an earlier back injury the respondent had given away heavy manual work in the early 1970’s. Given his problems with his neck and thoracic spine it was contended that it was unlikely he would take up heavy manual work post September 1999. However, he did work prior to trial for a short period as a labourer for Grainco; it is not clear what physical activity that involved. Of somewhat more importance is the fact that the respondent has been virtually in full-time work since made redundant from his employment with the appellant on 30 November 1995. The respondent has a variety of skills and has undertaken various courses to keep abreast of modern developments; for example, he completed a TAFE course with a view to upgrading his occupational health and safety qualifications.
Against that is the fact that his future working life has been affected by his shoulder injuries. There was at least a possibility that he could have gone the whole of his working life without the congenital condition interfering with his capacity to work.
Given his non-compensable disabilities, the injuries for which the appellant is liable are only at best partially responsible for any present and future diminution in earning capacity. On the evidence the back injury the subject of Action No 15 of 1996 did not further diminish his earning capacity. In those circumstances a total award of $90,000 is manifestly excessive.
The total award for future economic loss should be reduced to $60,000 and the whole of that should be attributable to the injuries the subject of Action No 80 of 1994. That represents approximately $120 per week over a 10 year period to age 60 and $90 per week over a 15 year period to age 65. That more accurately represents the weekly loss of earning capacity consequent upon the injuries for which the appellant is responsible.
Loss of Superannuation Benefits
It was agreed between the parties that this head of damage should be allowed at six per cent of the assessments for past and future loss of earning capacity. Accordingly $7,920 should be allowed under this head.
Loss of Subsidised Housing
The learned trial judge allowed a claim for loss of subsidised housing after 30 November 1995 (the date of the respondent’s redundancy) until the date of trial at the agreed rate of $90 per week. There was no discounting; the whole of the amount so calculated was allowed. In other words the loss was calculated on the assumption that the respondent would have been able to work as a PSO from 30 November 1995 until the date of trial.
For the reasons given above in relation to past economic loss such an assumption is not justified. A discounting must be made because of the factors discussed when dealing with the assessment of past economic loss which made it probable that he would not have worked as a PSO throughout the whole of that period.
As was done in calculating past economic loss a discounting of 40 per cent should be made. That reduces the claim from $16,380 to $9,828. Interest should be allowed on that sum in the amount of $1,032.
Summary
The quantum calculation can therefore be summarised as follows:
Action No 80 of 1994
Past economic loss $72,000.00 Interest on past economic loss $19,540.00 Future economic loss $60,000.00 Loss of superannuation benefits $7,920.00 Medical and pharmaceutical expenses and provision of care $6,000.00 Pain and suffering $32,500.00 Special damages $21,799.64 Loss of subsidised housing $9,828.00 Interest on loss of subsidised housing $1,032.00 Total: $230,619.64 Less WorkCover payments $62,695.60 Net judgment $167,924.04
Action No 15 of 1996
General damages $12,500.00 Interest $840.00 Special damages $4,485.70 Total: $17,825.70 Less WorkCover payments $695.95 Net judgment $17,129.75
Orders
(i) Appeal No 5366 of 1999: Appeal allowed, substitute the figure of $167,924.04 for the figure of $252,532.57 appearing in the judgment. Order that the respondent pay the appellant’s costs of the appeal to be assessed.
(ii) Appeal No 5367 of 1999: Appeal allowed, substitute the figure of $17,129.75 for the figure $32,129.75 appearing in the judgment. Order that the respondent pay the appellant’s costs of the appeal to be assessed.
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