Meiers v Gatehouse

[1994] QCA 357

IN THE COURT OF APPEAL	[1994] QCA 357
SUPREME COURT OF QUEENSLAND	Appeal No. 80 of 1994
Brisbane
Before	Fitzgerald P. McPherson J.A. Mackenzie J.

[Meiers v. Gatehouse]

BETWEEN:

GLENNIS JAYNE MEIERS

(Plaintiff/Respondent)

AND:

ELLIOTT GATEHOUSE

(Defendant/Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14/09/1994

The respondent suffered injuries when a motor vehicle in which she was a passenger crashed into a bus shelter and a brick wall on 6 October 1989. She was 22 years of age at the time and suffered injuries, the most serious and enduring of which was a burst fracture of the L3 vertebrae which has interfered with the disc structure surrounding it.

The learned trial Judge accepted evidence that she has instability of the spine which produces pain and that as degenerative changes occur the pain will increase. She will also suffer aggravation of the natural processes of wear and tear to the spine as a result of the injury and there is a high likelihood that eventually surgery will be required either to decompress the nerve canal or to fuse the spine. This will probably occur within the next 12 to 15 years. The operation would if successful achieve substantial but not complete relief from pain. The learned trial Judge was not prepared to accept that she was unemployable but accepted that her back condition would have "a profoundly adverse effect on her ability to earn an income in the future". He accepted that she could neither sit nor stand in the one place for more than five to ten minutes. He accepted that the pain was constant. He found that to obtain relief from the pain she had resorted to large quantities of analgesic tablets and to excessive use of alcohol.

She gave evidence that after the accident she had attempted to obtain

work but when people found out she had a bad back they would not employ her.
She worked for a week at one establishment but left because she could not
stand up for the periods required of her. She also worked for a company which
subsequently transferred its operations to Malaysia and for Luxaflex.
Although she found the work at Luxaflex "pretty easy" she was laid off. The
learned trial Judge was satisfied that she did a number of household tasks but
suffered back pain in doing so. In early 1993 she had a daughter and suffers
discomfort when she has to pick the child up. So far as her future economic
loss is concerned the learned trial Judge found that there would be a
substantial interference with the plaintiff's ability to earn an income in the
future. Although her ability to earn an income had not been destroyed she
would never have the ability to be a normal member of the workforce. He
allowed $100 per week to commence five years in the future thus allowing for
the period when she would be occupied caring for the child rather than
working. Discounting that sum to the age of 60 the figure of $63,400 was
obtained.

The first of the appellant's submissions was that over the two and a half years prior to the accident the respondent had been employed for only about 60% of the time. It was accepted that when she worked for Luxaflex she averaged about $250 per week over the thirteen weeks she worked there. Mr. Forde, for the appellant, attempted to persuade us on the basis of these figures that the learned trial Judge had allowed an excessive base sum of $100 per week for the calculation of future economic loss. He submitted that that sum was not established, having regard to her pre-accident work history and her post-accident employment. He submitted that a global sum of $20,000 should be allowed.

Because of her back condition and the limitations caused by it the range of work she can do is plainly limited. Having regard to the substantial impairment of the respondent's earning capacity found by the learned trial Judge and demonstrated by the evidence we are not persuaded that he erred in awarding the sum of the level awarded.

The award for pain, suffering and loss of amenities was attacked because in his reasons for judgment, the learned trial Judge accepted a submission by counsel for the plaintiff that an appropriate award was $60,000 but also did a mathematical calculation based on the sum of $70 per week which, discounted over a period of 40 years, would produce approximately that sum. It was submitted that the learned trial Judge had erred in principle by performing that calculation. Had the learned trial Judge calculated the component for pain, suffering and loss of amenities solely on that basis it would have been an erroneous approach. However, it is plain from the judgment that the learned trial Judge was minded to accept counsel's submission that $60,000 was an appropriate sum. The calculation performed is no more than an aside which was in no way crucial to the determination of the amount to be awarded under this head of damages. An award of $60,000 for the injury suffered by the respondent, particularly having regard to her prognosis, is not excessive.

Since neither of the grounds argued by the appellant is made out, the appeal is dismissed with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 80 of 1994
Brisbane [Meiers v. Gatehouse]
BETWEEN:

GLENNIS JAYNE MEIERS

(Plaintiff/Respondent)

AND:

ELLIOTT GATEHOUSE

(Defendant/Appellant)

FITZGERALD P. MCPHERSON J.A.

MACKENZIE J.

Judgment delivered 14/09/1994

REASONS FOR JUDGMENT - THE COURT

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS: NEGLIGENCE - QUANTUM - whether award for future economic loss

excessive - whether pain, suffering and loss of amenities

component wrongly calculated

Counsel:  M. Forde for the Appellant
M. Grant-Taylor for the Respondent

Solicitors: W.H. Tutt & Quinlan for the Appellant

Peter Daley for the Respondent

Date/s of Hearing:  7 September 1994