O'Connell v Hansen

[1994] QCA 274

IN THE COURT OF APPEAL  [1994] QCA 274

SUPREME COURT OF QUEENSLAND

No. 10 of 1994

Brisbane

BETWEEN:

EDWARD ISADOR O'CONNELL

(Plaintiff)Respondent

AND:

VIOLET HANSEN

(Defendant)Appellant

Pincus JA
  Davies JA
  Williams J

Judgment delivered 03/08/1994

Judgment of the Court

APPEAL DISMISSED WITH COSTS

CATCHWORDS:   CIVIL - damages for personal injury - male aged 42 - 10% loss of function of spine - 5% loss of function of knee  - 10% loss of function of left shoulder - assessment of damages in question - poor previous work history - held total assessment of $117,363.45 not manifestly excessive - costs - award in excess of respondent's offer to settle - alleged inconsistencies between statement of loss and damage  and evidence - held respondent entitled to solicitors and client costs

Counsel:     R Oliver for the appellant
             S R Lumb for the respondent

Solicitors:   Mahoney & Hesford for the appellant

Kenyons for the respondent

Hearing date: 22 July 1994

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 10 of 1994

Brisbane

Before Pincus JA

Davies JA

Williams J

[O'Connell v. Hansen]

BETWEEN:

EDWARD ISADOR O'CONNELL

(Plaintiff)Respondent

AND:

VIOLET HANSEN

(Defendant)Appellant

JUDGMENT OF THE COURT
Judgment delivered 03/08/1994
     The respondent sued the appellant in the District Court for damages for personal injuries sustained in a motor vehicle accident which occurred on 23 August 1991.  At the trial, liability was admitted and the only issue for determination was that of quantum.  For reasons which he gave, the learned District Court Judge assessed the damages to which the respondent was entitled in the sum of $117,363.45.
     Because the award of damages exceed $115,000, the amount of the respondent's offer to settle in accordance with O. 118(1) of the Rules of the District Court, the respondent was awarded solicitor and client costs.
     The appellant appeals to this Court against the assessment of quantum on the grounds that the assessment was contrary to the evidence adduced at the trial, that the learned trial Judge failed to take into account or give sufficient weight to a number of factors, and that in assessing economic loss the learned trial Judge did not make any allowance or reduction for tax payable.  There is also an appeal against the order for costs.
     In the course of submissions by counsel for the appellant, it became clear that essentially the contention was that the learned trial Judge failed to give due weight to certain issues raised at the trial and that he took too favourable a view of the plaintiff.  In the circumstances, it is not necessary to refer to the evidence at any great length.  The plaintiff was aged 40 years when injured, and 42 years at the trial.  In broad terms, the most significant injuries as found by the learned trial Judge, were the following:

1. Soft tissue injury to the cervico-thoracic spine involving the musculo-ligamentous structures.  The respondent has limited movement in his neck and experiences pain at the base of his neck, particularly with physical activity.  The finding in the judgment is that the respondent "has now a permanent disability to his spine of about 10 percent loss of its effective function";

ii)Damage to the chrondral or meniscal structures of the left knee.  The learned trial Judge held in his judgment that the respondent had "about 5 percent loss of the effective use of his injured leg";

iii)Injury to the rotator cuff and shoulder joint musculature of the left shoulder.  The learned trial Judge in his judgment found that the respondent had about 10 percent loss of the injured shoulder function.

All of those findings were supported by evidence, particularly the evidence of Dr Pentis. 
     It is also clear, at least by inference, that the learned trial Judge accepted that the respondent had experienced headaches which "became part of his existence".  He made an express finding that in the accident the respondent sustained "a blow to his head".  There was evidence on which such a finding could be made, though a complaint in those terms was not made to the first medical practitioner the respondent consulted about 20 minutes after the accident.  Nor was a complaint of headaches made to Dr Toakley.  The learned trial Judge referred to those matters, and to the submissions made by counsel for the appellant with respect thereto, but went on to make the findings mentioned.  Clearly, he was entitled to do so.  The learned trial Judge was entitled to accept the oral evidence which the plaintiff gave as to his headaches. 
     The learned trial Judge assessed damages under the heading "pain and suffering and loss of amenities" in the sum of $27,500.  In the circumstances, that cannot be said to be manifestly excessive nor against the evidence.  Interest amounting to $560 was allowed thereon.
     Special damages in the sum of $378.45 and interest thereon in the amount of $25 was allowed.  No attack was made on those items.
     For reasons which he gave, the learned trial Judge considered that he should assess a global sum for past and future economic loss.  The figure allowed was the total sum of $87,500.  Interest in the sum of $1,400 was added to the assessment for economic loss. 
     The strongest challenge made by counsel for the appellant in his submissions was with respect to the assessment of economic loss.  The argument relied heavily on the fact that the respondent did not file tax returns, nor pay income tax, after approximately 1979.  It was contended that he did not lead cogent evidence as to the income he earned in the years preceding the accident; in particular, he produced no independent evidence or documents to support his claim that he had lost the capacity to earn income to the extent assessed by the learned trial Judge.
     The learned trial Judge, in his reasons, took those matters into account.  The following extracts from the reasons suffice to establish his Honour's approach to the assessment of damages under this head:

"Save for alcoholism terminated by his imprisonment for drunken driving for twelve months to about May 1991, O'Connell had had an active life pursuing, in a quite irregular manner, his employment in and sub‑contracting for vehicle spray painting and panel beating which was preceded by his working as a kangaroo shooter and a boner in the meat industry.  For some time prior to the imprisonment O'Connell was intent on concealing his whereabouts from process which led to his service of that imprisonment.  That added to the irregular employment he pursued.  He received his earnings in cash, expended much of it on rum, and, for sometime prior to the imprisonment mentioned, he had lived a very furtive lifestyle which included irregular short intervals of hard work together with intervals of intoxication. 

. . . could not follow his occupation as a spray painter/panel beater because his disabilities rendered him not an employable economic unit in an industry which required physical exertion which he could not furnish.

. . .

. . . Hansen's submission was that that addiction history together with the predictions which should normally accompany it justifies a conclusion that O'Connell's notionally uninjured earning capacity was flawed, . . . by a likely addiction re-occurrence were O'Connell not injured.  My conclusion . . . is that there was such a flaw but that its extent after August 1991 should not have been great in a notionally uninjured O'Connell. 

. . .

Another submission by Hansen is . . . that O'Connell's pre-injury lifestyle did not exert fully or evenly substantially any capacity to earn income which O'Connell then had. 

O'Connell exerted certainly no more than one half of his notional uninjured capacity to earn income and, on the probabilities, that exertion did not exceed one third of that capacity.  The net value of his weekly earning capacity were it exerted fully prior to injury and imprisonment was about $500.  The economic consequences of the injury from August 1991 to now could not have worked greater damage than about $30,290 in value - if one relied on but arithmetic to make a calculation which does not take into account those past hypothetical facts which must be heeded in this assessment - those past hypotheses being a fact and relevant to what would have been the value of the notionally uninjured O'Connell's earnings from injury to now.

One consequence of that injury is that he has been unable, to now, to secure employment of those impaired employable skills which he retains."

It also seems clear that the learned trial Judge included in the assessment of $87,500, amounts to compensate the respondent for the probability that in the future he would incur actual expense in consequence of his injuries.  Reference was made to the fact that he may require knee surgery at a cost of approximately $3,000, that there was a real possibility of future treatment to the shoulder costing about $2,000, physiotherapy at a cost of about $1,400, and expenditure in an unspecified amount on obtaining pain killers and the like.
     All of the findings made by the learned trial Judge are supported by evidence given by either or both the respondent and Dr Pentis.  The latter was of the view that the respondent was not fit to carry out any manual jobs, and he was qualified for little else.  Given the passages from the reasons which have been quoted, it is clear that the learned trial Judge addressed the problems created by the respondent's previous work history.  His assessment cannot, in the circumstances, be said to be unsupported by the evidence.
     The learned trial Judge considered all relevant matters and attributed such weight to them as he considered appropriate.  There is no demonstrable error in his approach.  It cannot be said, given the broad discounted figures he worked with, that he failed to have regard to income tax properly payable on earnings.
     The total award of $117,363.45 cannot be said to be manifestly excessive for a male in his early forties with the physical injuries established by the medical evidence. 
     In all the circumstances, no proper basis is made out for this Court to interfere with the assessment of quantum.
     In relation to the order for costs, the argument advanced by counsel for the appellant was that the Statement of Loss and Damage filed by the respondent, and the respondent's answers to interrogatories were so vague and internally inconsistent that it was impossible for counsel to evaluate properly the offer to settle.  Given the absence of income tax returns or other documents independently supporting the claim for economic loss, it is said that there is no proper basis upon which an assessment of damages could be made by the appellant.  In consequence, it is asserted that the appellant was not in a position to accept or reject the offer of settlement. 
     But the fact remains that the respondent made an extremely accurate assessment of the quantum of damages to which he was entitled and in the circumstances he ought not be deprived of the benefits of the offer to settle.  The appellant had the various medical reports which were tendered in evidence and which provided a firm basis upon which the findings of the learned trial Judge were made. 
     In all the circumstances, the appeal should be dismissed with costs.