Parnell v Bellina Mackay Pty Ltd

[1995] QCA 502

IN THE COURT OF APPEAL	[1995] QCA 502
SUPREME COURT OF QUEENSLAND	Appeal No. 246 of 1994
Brisbane [Parnell v. Bellina Mackay Pty Ltd] BETWEEN:

DEBORAH MAY PARNELL

(Plaintiff/Appellant)

AND:

BELLINA MACKAY PTY LTD

(Defendant/Respondent)

Fitzgerald P.
McPherson J.A.

Moynihan J.

Judgment delivered 14/11/1995
Judgment of the Court

APPEAL ALLOWED. THE JUDGMENT BELOW SHOULD BE SET ASIDE. THERE SHOULD BE JUDGMENT FOR THE APPELLANT AGAINST THE RESPONDENT IN THE AMOUNT OF $274 969.63. THE RESPONDENT SHOULD PAY THE APPELLANT'S COSTS BELOW AND BEFORE THIS COURT TO BE TAXED.

CATCHWORDS:	TORTS - Damages for personal injuries - whether award for future economic loss manifestly inadequate - likelihood of appellant being able to do light duties beyond the age of 50 - whether lost superannuation benefits should be considered in award for future economic loss.
Counsel:	Mr R. Pack for the Appellant Mr B. Harrison for the Respondent
Solicitors:	K.J. Seaniger & Associates for the Appellant Macrossan & Amiet for the Respondent
Hearing date:	02/08/95

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 246 of 1994
Brisbane
Before Fitzgerald P.

McPherson J.A.

Moynihan J.

[Parnell v. Bellina Mackay Pty Ltd]

BETWEEN:

DEBORAH MAY PARNELL

(Plaintiff/Appellant)

AND:

BELLINA MACKAY PTY LTD

(Defendant/Respondent)

JUDGMENT OF THE COURT

Judgment delivered 14/11/95

This is an appeal from an award of damages for personal injury. The appeal turns essentially on whether it can be demonstrated that the future economic loss component of the award is manifestly inadequate. A total of $246,784.36 was awarded of which $60,000 was for future economic loss.

The appellant was the manageress of a delicatessen in the defendant's supermarket when she suffered the injuries which give rise to her entitlement to damages. The appellant was born on 22 March 1960. She left school in August/September 1975 without having completed what was then called her junior year. She sustained injuries to her lower back on 9 October 1989 and 13 March 1990 for which the defendant admitted liability. At the date of trial (5 December 1994) the appellant had not worked since 14 March 1990. It may be accepted this was as a consequence of her injuries. It seems to have emerged at the trial that there was an indeterminate physical basis for the disabling pain which the appellant suffers and a psychological overlay. The trial judge concluded surgery was not appropriate but the appellant would benefit from attendance at a pain clinic to assist her in developing coping skills and gaining self-confidence. Had she not been injured the appellant would have continued in the employment she was engaged in at the time of her injuries, without easing up, and would have been earning of the order of $346 a week at the time of the trial had she done so. The trial judge concluded that within 12 months of the completion of the pain clinic course the appellant would be fit to return to work and that her loss over that period would be $17,646. He thought that when the appellant initially returned to work it would be part time for 2 years and assessed her loss during that period at $13,300 on the basis of a loss of $140 a week. Thus far, as counsel for the appellant accepted, there is little basis for criticism of the economic loss component of the award.

The trial judge then concluded that once the appellant returned to work on a full- time basis she would work for a further 15 years, that is until she was about 50. He concluded that there was a 20% chance that she would not work to 50. The trial judge concluded the applicant would not work beyond 50 because she was engaged in heavy physical work, she was slightly built and had one leg shorter than the other.

The conclusions canvassed having been arrived at, the trial judge concluded the present value of the 20% loss was $23,302. The various figures totalled $59,248. The trial judge allowed $60,000 remarking that mathematical certainty was not justified by the evidence.

The submissions, in support of the appeal focussed on the conclusion that the appellant would not work past 50. It was submitted to the effect that it did not take proper account of the prospect of her working beyond 50 had she not been injured; the evidence did not preclude her doing light work if she could not do heavy. It was also sought, in a subsidiary way, to derive support for the award being inadequate from the fact that it did not take account of the lost benefit by way of employees' superannuation contributions. Exhibit 26 provided evidence of this. It shows, as a matter of calculation, the lost superannuation benefit for a retirement age of 65 was $25,262.

As has been indicated earlier the appellant gave evidence to the effect had she not been injured she would have continued in her then current employment. It is appropriate to turn to the evidence directed to this issue. In her quantum statement (exhibit 1) the appellant stated that she was a permanent employee of the defendants and "intended to remain there until retirement". In evidence-in-chief she had explained that the reference to retirement in the quantum statement meant when she envisaged finishing work at "60 - 65". In cross-examination the applicant said that the work at Hadfields was fairly hard physically "for the lifting and that" but it was not her intention to look for lighter work apparently on the basis that she thought she would have been able to cope.

The trial judge assessed damages on the basis the appellant would not have worked beyond 50 on three basis. First was the heavy physical work. Her evidence as to that is set out above and the issue does not seem to have been taken any further. There is no doubt that his Honour was entitled to conclude that she was quite lightly built. The evidence founded a conclusion that she had one leg shorter than the other although she did not know of it before the medical examinations to her injury. It is known that such a deficiency can cause stress and hence deterioration to the back although courts are frequently told that a build up can contribute a great deal to rectifying the position. These considerations do not seem to have been particularly addressed by the evidence called at the trial. It remains to remark that the appellant seems to have been accepted by the trial judge as a credible witness.

The evidence would seem to have been capable of founding a conclusion that the plaintiff's earning capacity beyond the age of 50 may in any event have been diminished on account of the factors identified by the trial judge. It seems however to go further than was justified by the evidence to conclude that she would not have exercised any earning capacity at all beyond that date. When one adds to that consideration the position in respect of lost superannuation benefit it seems reasonable to conclude that the plaintiff's damages are inadequate by reasons of the amount awarded for this component.

It remains to consider what would have been an appropriate allowance for future economic loss. On the evidence, the appellant would probably have exercised some level of earning capacity until she was 60 or 65, in employment which would have been paying of the order of $346 or so, per week. That she would have continued to work in the employment she was engaged in at the time of her injury, has to be discounted not least for the factors indicated by the trial judge. The appellant contends that $125,000 would be an appropriate allowance reflecting the foregone superannuation component and 25 years diminution of earning capacity (she was 35 at trial) on the basis of $170 a week.

The matter is not one for mathematical calculation, but the approach provides a point of departure for arriving at an appropriate component for future economic loss reflecting the considerations canvassed.

The appeal should be allowed. The judgment below should be set aside. There should be judgment for the appellant against the respondent in the amount of $274,969.63. The respondent should pay the appellant's costs below and before this court to be taxed.