Rebb v F J Walker Ltd

[1993] QCA 147

IN THE COURT OF APPEAL	[1993] QCA 147
SUPREME COURT OF QUEENSLAND

Appeal No. 256 of 1992

Brisbane

[Rebb v. Walker]

BETWEEN:

JOHN REBB

(Plaintiff) Respondent

AND:

F. J. WALKER LIMITED

(Defendant) Appellant

Davies J.A.

Shepherdson J.

Judgment delivered 27/04/1993

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	DAMAGES - personal injuries - judge's reasons inadequate in respect of one component in assessment.
Counsel:	Mr. Webb for appellant Mr. Drew for respondent
Solicitors:	Roberts Leu & North for appellant Lee Turnbull & Co. for respondent

Hearing Date: 29 March 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 256 of 1992

Brisbane

Before Davies J.A.
Shepherdson J.

[Rebb v. Walker]

BETWEEN:

JOHN REBB

(Plaintiff) Respondent

AND:

F. J. WALKER LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 27th day of April 1993

The defendant has appealed against the assessment by a trial judge of damages for

personal injury suffered by the plaintiff while working for the defendant as a boner on 3rd June

1985 contending that the total damages assessed are beyond the limits of a sound discretionary

judgment and more particularly that certain components in the assessment are manifestly

excessive.

The learned trial judge's assessment totalled $269,197 which included the following three

components each of which is challenged as manifestly excessive.

1.          General damages - $60,000.

2.          For impairment of earning capacity to date of judgment - $111,000.

3.          For future impairment of earning capacity $77,000.

The plaintiff was 42½ years old when on 3rd June 1985 he suffered, as his Honour
found, injury or exacerbation to injury in the lumbar spine. The plaintiff, who his Honour found

was "illiterate or almost so" was almost 50 years old at judgment. His Honour found that, by age

55, the plaintiff would, in any event, have been disabled, by reason of his pre-accident condition,

to the same extent as he was at trial. This finding was not seriously contested by either party

before us. Consequently, the plaintiff's damages were limited accordingly.

In his reasons, his Honour made few findings on the aspect of pain suffering and loss of

amenities. He said:

"His daily problems are set out in a statement which is Ex.2, and I do not propose to canvass that. He has had surgery but this appears to have been unsuccessful and I think that any success in this field in the future is not likely."

Later in his reasons his Honour said:

"I assess general damages at the sum of $60,000."

Failure to give reasons is not a ground of this appeal. The appellant has not sought a new

trial. In Capaz Pty. Ltd. v. Cupples (Appeal No. 228 of 1992 - judgment delivered 19/3/1993)

this Court referred to the relevant authorities for the principle that -

"in the absence of some strong compelling reason ... the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose"

and

"if he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law."

In our view the learned trial judge did err in not stating, in accordance with that

principle, the reasons for assessing what he called general damages at $60,000. It does not follow

however that because of that error the $60,000 assessment must be set aside. This Court will

only interfere with the assessment of this component in this case if it is plainly an overestimate

and if substituting a proper figure for this component will substantially alter the total assessment

of damages (Elford Ford v. FAI General Insurance Company Limited - No.1491 of 1985 -

judgment delivered 1/4/1992).

Although his Honour did not give adequate reasons for his assessment of $60,000 his

Honour did refer to Ex.2. This was an unsigned and undated typed statement by the plaintiff.

The trial was conducted on 5th and 6th December 1989 and on 5th and 6th October 1992. It

appears that Ex.2 was a 1989 document. At pp.11 and 12 of that statement the plaintiff

described his daily activity and this included a complaint of constant pain in his lower back and

legs. He claimed that as a result of the injury he was unable to partake in any activity of any

nature, could no longer walk any distances and had recently taken up pool and played that once

a week. He claimed also to have attempted suicide in Christmas 1987. He gave further sworn

evidence on 5th October 1992 in which he spoke of his involvement with training boxers -

"verbal training" as it was referred to in argument.

Exactly what his Honour had in mind when he said - "his daily problems are set out in

the statement which is Ex.2" we do not know.

There was no dispute that on 22nd October 1985 the plaintiff underwent an extensive

lumbar decompressive lumbar laminectomy.

In our view, it is impossible on the findings of the trial judge on the evidence to say that

$60,000 was such an overestimate that by substituting a proper figure for that component a

substantial alteration will be made to the total assessment of damages.

The next item challenged was the assessment at $111,000 for impairment of earning

capacity to the date of judgment.

At trial the plaintiff's counsel had tendered a document (Ex.71) described as

'SCHEDULE OF PLAINTIFF'S PAST ECONOMIC LOSS" and purporting to show a loss (net

after tax) from 4/6/1985 to 25/9/1992 of $109,328.21. Although this is not clear from his

reasons, the learned trial judge appears to have added an amount to bring the total in Ex.71 up

to the date of the judgment which was 6th November 1992. In dealing with this component his

Honour said:

"Relating to assessment (sic) of damages for loss to the present, a document was put in by the defendant which would support a figure to the present of some $116,000. Another document put in by the plaintiff marked for convenience as Ex.71 shows calculations which would support a figure of some $111,000. I propose to adopt the latter figure not being able to see any reason, on the material I have for preferring one to the other."

Mr. Webb, for the appellant, has criticized his Honour's reliance on Ex.71 submitting

that his Honour has thereby erroneously treated the plaintiff as continuously in work during the

whole of the period between accident and judgment. Mr. Webb's argument is based upon

evidence of the plaintiff's work history from 1st July 1980 to 3rd June 1985 which evidence he

submitted shows that for about 54 percent only of this period was the plaintiff in actual work.

Thus he argues the amount assessed should have been severely discounted.

Mr. Drew for the respondent submitted that the figures in Ex.71 were based in part upon

other evidence showing the equivalent wages of a fellow worker named Mark Andrew Hardy

engaged in seasonal employment as a meat worker. Hardy's name appears several times in

Ex.71. Ex.42 is a schedule of gross and net earnings of Hardy from 1984-5 to 1988-9. Certain

figures appearing in Ex.42 which purport to show Hardy's net earnings during those years have

been transposed to Ex.71. Hardy gave oral evidence and copies of his income tax returns for a

number of years became exhibits.

Mr. Drew conceded the evidence showed that meatworkers were seasonally employed.

Hardy swore that such employment varied between eight to ten months in a year. Mr. Drew

argued that Hardy's net earnings as shown in Ex.71 were not earnings for each full year (as might

appear when first reading Ex.71) but in effect reflected the seasonal nature of the work. Ex.71,

on this argument, did not therefore show the plaintiff in continuous full employment from 3rd

June 1985 to 25th September 1992.

Closer examination of Ex.71 and copies of Hardy's income tax returns does indeed

confirm that Hardy's earnings as a meatworker were seasonal in the years ended 30th June 1986,

1987 and 1988. Hardy worked as a meatworker for a comparatively short time during the 1989

year and for most of this year was employed by Townsville City Council. When preparing

Ex.71, the plaintiff's legal advisers used Hardy's 1988 year net earnings as a yardstick for

estimating plaintiff's earnings as a meatworker in the 1989 year. Thereafter and up to 25th

September 1992, in compiling Ex.71 reliance was placed on evidence from Australia Meat

Holdings Pty. Ltd. being a letter (Ex.69) showing gross and net after tax earnings of a person in

a similar position to plaintiff.

Consideration of Ex.71 and the evidence supporting it has satisfied us that in allowing

$111,000 for impairment of earning capacity from injury to judgment the learned trial judge did

not treat the plaintiff as if he were fully employed during this period. Ex.71 was based partly on

seasonal employment of Hardy and partly on Ex.69 which did contain discounting within it in

the sense that it purported to be earnings of "a person in a similar position to plaintiff".

In fact the plaintiff had been employed by the defendant as a boner for eleven months

before he was injured and boning, his Honour found, was heavy work. We are not persuaded

that the assessment at $111,000 warrants any interference.

The final component challenged by Mr. Webb was the $77,000 for what was called
future economic loss but which is really for future impairment of earning capacity. His Honour
said:

"The base rate which was put forward for the plaintiff was $407, for the defendant $337, and I should mention in relation to all those figures both in relation to past and future, the basis appears to have been what had been earned or might have been earned by other persons. The differences in future economic loss would be $94,000 on the figures put forward by the plaintiff and $77,000 on the figure put forward for the defendant. I adopt the latter figure. Those comparatively small figures for future economic loss are explained by the plaintiff's limited expectations."

During argument on the appeal neither counsel could confidently tell the court how the

two sums of $94,000 and $77,000 were calculated. Even the source of the $407 base rate could

not be confidently gleaned. Ex.69 which showed (inter alia) net after tax earnings of $5,488 from

1/7/92 to 25/9/92 enable a calculation of some $422 as average net pay for each of the

approximate 13 weeks in that period.

The maximum future period for this plaintiff was almost five years. The present value

of a weekly loss of $407 for five years on the five percent tables is $94,424. If the weekly loss were

$422 that value would have been $107,904.

Whatever the basis was upon which the present appellant put forward the figure of

$77,000 it appears to represent a considerable discount on either of the above amounts. Again,

although the basis upon which his Honour arrived at this amount is not clear, we are unable to

say that it is plainly an overstatement.

On consideration of all the matters raised the appellant has not persuaded the court that

the total of damages assessed was a wholly erroneous estimate. The appeal will be dismissed with

costs.