Reeves v Boral Resources (Queensland) Pty Ltd

[1993] QCA 45

IN THE COURT OF APPEAL

[1993] QCA 045

SUPREME COURT OF QUEENSLAND

Appeal No. 88 of 1992

BETWEEN:

DAVID PHILIP REEVES

(Plaintiff) Appellant

AND:

BORAL RESOURCES (QUEENSLAND) PTY LTD

(Defendant) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(Third Party)

Appeal No. 89 of 1992

BETWEEN:

DAVID PHILIP REEVES

(Plaintiff) Appellant

AND:

ADELE LARAE LUCAS

(Defendant) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(Defendant by Election) Respondent

JUDGMENT OF THE COURT

Delivered the Tenth day of March 1993

These appeals are brought by a plaintiff who complains of the amount of damages awarded to him in two actions for damages for personal injuries. The actions were heard together in the District Court; liability was admitted and it was agreed that each defendant was equally responsible for the appellant's condition.

The first action related to an injury which the appellant suffered on 2 November 1984 while working as a concrete technologist for the respondent Boral Resources (Queensland) Pty. Ltd. ("Boral"). The appellant injured his lower back and underwent treatment which produced some improvement. He went back to work, but on 16 October 1985 - nearly a year after the first accident - his back was hurt again, in a motor accident.

On that occasion, he sustained fractures of transverse

processes of L3, L4 and L5 and a crush fracture of L1.

Since this second accident, the appellant has undergone conservative treatment of various kinds, but ultimately it was thought desirable, in view of an apparent lack of improvement, to perform a laminectomy. That was done in March 1990 and produced some alleviation. The most recent report from the neurosurgeon who performed the operation, dated 16 January 1991, said that the appellant was not fit to return to work when the surgeon last saw him (27 July 1990). It went on:

"if his backache improves further then he may be able to return to some form of light work in the future, but I would regard him as being totally and permanently disabled for the purpose of returning to heavy work involving lifting and bending. His working life, in a heavy occupation has been terminated by his injury and he may find it difficult to find lighter work later on because of his disability".

The surgeon also remarked:

"With increasing degenerative change he may well experience increasing backache at a later time. I would regard his disability in the lumbar spine as being in the region of about forty percent expressed as loss of day to day general activities, but he is totally disabled for the purpose of returning to his former heavy occupation involving heavy lifting and bending".

For pain, suffering and loss of amenities, the judge awarded a sum of $55,000, together with certain interest. His Honour also awarded an agreed sum of $60,000 for past economic loss and $100,000 for future economic loss. Further, the award included a sum of $32,721 for special damages including interest.

The appeal is brought on the ground that the sum awarded for future economic loss, $100,000, was too low. The issue appears to be a purely factual one and it is not suggested that the learned trial judge misunderstood any of the evidence or made any other specific error; in those circumstances, this Court would ordinarily be rather reluctant to interfere with his Honour's conclusion. The case is one in which the appellant accepts the judge's primary findings of fact, but argues in effect that the sum awarded for future economic loss did not accord well with those findings.

It is necessary to deal with the facts in some detail, but the broad picture as set out in the reasons is that the appellant, aged 41 at trial, was a hard working man who was employed in the concrete industry, his job involving supervising others together with some manual work. He continued to work after his accidents, but lost his last job, in circumstances discussed below, about two years ago. Since then he has tried hard without success to get another job and his counsel submit, in effect, that his capacity to get and keep employment in future must be regarded as doubtful. It was common ground at the trial that he was a very hard worker. It was then agreed that if he had still been working he would have been earning about $580 net per week. The judge's award for future economic loss, $100,000, is about a quarter of the present value of a loss of $580 per week, taken to age 65. The appellant contends this is, on the primary findings, a figure which represents too optimistic a view of his economic prospects, having regard to the fact that he had been out of work for about two years at the date of trial.

The appellant's history was as follows. He left school at the age of 15 years and worked at various low-level jobs such as messenger boy, assistant storeman and the like, until he obtained employment with the Main Roads Department as a trainee soil technician. He spent five years with that department, finishing as a "third year soil technician"; during his time with the Main Roads Department, he worked at other part-time jobs. In 1972, he moved to Cairns to run a fruit shop. He then worked for fairly short periods as a locksmith/gunsmith assistant, a distributor of dairy foods and a labourer with a firm of builders suppliers. In 1982, he obtained employment with the respondent Boral in the concrete industry. He stayed with Boral for six years and it was, as is seen from the dates set out above, during that period that he sustained both the injuries the subject of the actions in question. Shortly before the second injury, he became Boral's plant manager in Mount Isa and he said that he hoped to become a regional manager for Boral - i.e. manager of one of Boral's five Queensland regions. It should be remarked that in awarding damages for future economic loss, the Court should have had regard to the possibility that the appellant's displacement from his former employment might have deprived him of a chance of obtaining a substantially better paying job.

In view of the submissions made to us, it is necessary to go into detail with respect to the termination of the appellant's last two jobs.

The circumstances in which the plaintiff left Boral, as derived from the judge's findings, were as follows. About a year after the second accident, the appellant had to do extra work at the concrete plant at which he was employed, at Mount Isa, because of a reduction in staff; this increased the level of pain in his back. He underwent physiotherapy, but became depressed and contemplated and indeed attempted suicide. (The judge found, in effect, that the depression had largely subsided by the time of trial.) In March 1987, the appellant was provided with the assistance of a loader operator to undertake most of the physical work which he had previously been doing, but still experienced a lot of pain. In September 1988, he was told by Boral to transfer to Rockhampton and did so under protest. He was promised better assistance, but this did not occur and he was again obliged to do manual work which he had been able to delegate in Mount Isa; this increased his back pain. He was sent to see Boral's doctor in Brisbane and a psychiatrist to whom that doctor referred him. The judge inferred from correspondence between those doctors that Boral might have been arranging for the appellant to carry on without doing manual work, but the appellant said that he was not given a position with modified tasks. He resigned from Boral in January 1989 and obtained similar employment with Pavex Construction Pty. Ltd. ("Pavex"), a company owned by Mr. A.S. Hegh, who gave evidence.

Initially, the appellant's work at Pavex was able to be carried out without much pain, but as a result of his success at his tasks, the Pavex business increased, resulting in the appellant's doing more physical work, such as driving loaders and this made his back worse. In January 1990, he felt he could not carry on and, as we have explained, a laminectomy was performed. It was initially thought that he would be able to return to work after three months, but at that stage he was still suffering considerable pain and did not return to the job. The judge found as follows:

"In September 1990 he spoke to ... Mr. Hegh about returning to work but was told the job was no longer available to him. It appears that during his absence Mr. Hegh had discovered something which he regarded as reflecting adversely upon the plaintiff and it was for this reason that he was no longer prepared to retain him in the company's employment ... Mr. Hegh had a high opinion of the plaintiff as a worker and would have reemployed (sic) him had it not been for this other matter, as to which no specific evidence was given".

Mr. Hegh also said that although the plaintiff did manual work in his job with Pavex he was not required to do so, but that the appellant was a man who would "work under water" which meant that he was very hard working.

Counsel for the respondents stressed that, on the findings, the appellant had left Boral voluntarily and that his losing the job with Pavex was not due to his injuries. As to the first matter, the judge's finding, which was not challenged, was as follows:

"I consider that his leaving Boral was influenced by his desire to return to Mt. Isa and that he made no great effort to retain employment with a modified job description. In these matters, however, I consider that the depression which he was then suffering affected his conduct and, as I have said, I accept that his depression was reactive to his pain as well as to other circumstances".

The judge found, in effect, that the appellant would have been taken back at Pavex, after his operation, but for the "other matter". It therefore appears to us to be correct, as the respondents contend, that such loss of employment cannot be laid at the door of the respondents. However, he had been with Pavex for only a year and there was no finding as to how long he would, but for the "other matter", have been likely to have a job with them; the evidence was that the business in which he was employed was a losing proposition. Further, having regard to the neurosurgeon's opinion with respect to the appellant's condition after he recovered from the laminectomy, it would seem perhaps unlikely that the appellant could have handled the work at Pavex, in the long term.

The evidence was to the effect that the appellant had for a considerable time before trial made strenuous efforts to obtain other employment, but all he had got was a few days work in a car wash operation. He said he had made about 100 applications for employment, many of them in writing; a bundle of correspondence was tendered. The appellant was cross- examined, as we understand, on the basis that it was unwise to mention (as he admitted he did) to quite a number of these prospective employers the fact that he had had back injuries.

We think there is nothing in that criticism. It was not suggested in cross-examination, or submitted before us or before the trial judge, that the appellant had been other than genuine in his attempts to obtain employment. As we have mentioned, he was portrayed by the evidence as a keen and hard worker.

At the time of trial (March 1992) the appellant was a full-time student at a high school and he had in mind qualifying to attend university and study law. The judge found that this was not a "viable option for him", for reasons he gave. It was also found that the appellant's skills would enable him to manage a concrete or crushing plant or both and that he could do that work "provided he confined his activities strictly to management and did not undertake any manual tasks".

However, the judge found as a fact that the appellant was incapable of actually carrying out his duties of a soil technician or concrete technologist.

It was also held that the appellant was capable of carrying out purely administrative duties; the judge held he had lost the capacity to engage in manual work. His Honour said:

"This has left the plaintiff with the ability only to pursue administrative or sedentary occupations and even with these it does appear that the mere mention of a bad back has a dampening effect upon any prospective employer's enthusiasm. There is no doubt that the plaintiff's employment prospects have been gravely affected, and there is no indication that his physical situation will change for the better.

Nevertheless, I consider that if the plaintiff exhibits enough single minded determination he will obtain employment which he could handle".

The last sentence quoted was the subject of some criticism by counsel for the appellant. It does not appear to us to have any specific foundation in the evidence; although there was quite detailed evidence as to the appellant's unsuccessful attempts to obtain work, nothing was put in cross-examination on behalf of either respondent to suggest that there was any particular prospect of getting work. Further, the judge gave no indication as to when he thought the appellant might obtain work or precisely what sort of work that might be. On the face of it, the appellant's position is none too promising, as the jobs for which he was trained appear to be now beyond him. It is by no means evident that a man in his early forties who was unable to obtain a job in the two years before the trial, has limited education and is fit for light work only will find it easy to get a steady job, whatever the level of his determination. Further, if the sentence to which exception was taken on behalf of the appellant implies that the appellant has shown inadequate determination in trying to get a job, that seems inconsistent with the evidence; nor was it suggested by the respondents' counsel at the trial.

The way in which the judge fixed the damages for future lost earnings involved three steps. His Honour reduced the agreed current loss of $580 per week to $200 per week. Next, his Honour treated the appellant's working life as terminating at age 60 and calculated a present value of $125,000 on the 5% tables. Thirdly, his Honour discounted that sum by 20% for contingencies, producing the figure of $100,000.

The appellant's senior counsel, Mr. Dorney Q.C., who led Mr. Eliadis criticised all three steps. It was suggested that the reduction from $580 to $200 represented too optimistic a view and that there was on the evidence no warrant for the assumption that had the appellant suffered no injury he could not have worked past 60; then it was said that the discount of 20% for contingencies was excessive.

It is convenient to deal now with the second point. There was evidence, to which Mr. Richard Trotter for the respondent in the second appeal referred us, that the appellant had a congenital defect consisting in a narrowing of the spinal canal in the lumbar region. None of the doctors' reports discusses the question whether that would have been likely to produce any disability, had there been no such injuries as were suffered.

It appears that the judge simply assumed that a reduction of five years in working life to account for the possibility that the pre-existing condition would ultimately have put a stop to the appellant's work was appropriate. His Honour's view was supported by the respondents before us, although no submission to that effect was made at the trial. In our view, the implicit finding against the appellant was not open. The appellant's unchallenged evidence was that he had no trouble with his back before he suffered the injuries for which the respondents accept liability. If they wished to make anything of the point, it was necessary for the respondents to produce evidence to justify a finding that the congenital narrowing would have produced later disability: Purkess v. Crittenden (1965) 114 C.L.R. 164 at 168. In our respectful opinion, the reduction of projected working life from 65 to 60 years had no adequate foundation in the evidence and was erroneous. This makes a difference of $19,200 to the award.

In our opinion the assessment of loss of earning capacity as equivalent to $200 per week, based on the judge's view of the likelihood of the appellant's obtaining employment, was also substantially too low. We would add that we find it difficult to understand, particularly in view of the limitation of working life to 60 years of age, why the judge has discounted the loss of earnings by so high a figure as 20%, having regard to all the circumstances of the case.

We are of opinion that the appellant has shown that the award for future economic loss was substantially too low and we propose to increase it by $80,000 - i.e. from $100,000 to $180,000. The result will be that each judgment will be increased by $40,000.

In each case, the appeal will be allowed by increasing the amount of the judgment in favour of the appellant. In Appeal No. 88 of 1992, the judgment will be increased to $153,764.68 and in Appeal No. 89 of 1992, it will be increased to $168,236.

It will further be ordered that the respondent in Appeal No. 88 of 1992 pay the appellant's costs of that appeal to be taxed and that the respondents in Appeal No. 89 of 1992 pay the appellant's costs of that appeal to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 88 of 1992

BETWEEN:

DAVID PHILIP REEVES

(Plaintiff) Appellant

AND:

BORAL RESOURCES (QUEENSLAND) PTY LTD

(Defendant) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(Third Party)

Appeal No. 89 of 1992

BETWEEN:

DAVID PHILIP REEVES

(Plaintiff) Appellant

AND:

ADELE LARAE LUCAS

(Defendant) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(Defendant by Election) Respondent

_______________________________________________

Mr. Justice Pincus Mr. Justice Davies Mr. Justice McPherson

_______________________________________________

Judgment of the Court delivered on 10th March,
1993.
_______________________________________________

APPEAL NO. 88 OF 1992 ALLOWED BY INCREASING THE JUDGMENT TO $153,764.68 AND APPEAL NO. 89 OF 1992 ALLOWED BY INCREASING THE JUDGMENT TO $168,236. IT IS FURTHER ORDERED THAT THE RESPONDENT IN APPEAL NO. 88 OF 1992 PAY THE APPELLANT'S COSTS OF THAT APPEAL TO BE TAXED AND THAT THE RESPONDENTS IN APPEAL NO. 89 OF 1992 PAY THE APPELLANT'S COSTS OF THAT APPEAL TO BE TAXED.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Before the Court of Appeal
Mr. Justice Pincus
Mr. Justice Davies

Mr. Justice McPherson

Appeal No. 88 of 1992

BETWEEN:

DAVID PHILIP REEVES

(Plaintiff) Appellant

AND:

BORAL RESOURCES (QUEENSLAND) PTY LTD

(Defendant) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(Third Party)

Appeal No. 89 of 1992

BETWEEN:

DAVID PHILIP REEVES

(Plaintiff) Appellant

AND:

ADELE LARAE LUCAS

(Defendant) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(Defendant by Election) Respondent

JUDGMENT OF THE COURT

Delivered the Tenth day of March 1993

MINUTE OF ORDER:	Appeal No. 88 of 1992 allowed by increasing the judgment to $153,764.68 and Appeal No. 89 of 1992 allowed by increasing the judgment to $168,236. It is further ordered that the respondent in Appeal No. 88 of 1992 pay the appellant's costs of that appeal to be taxed and that the respondents in Appeal No. 89 of 1992 pay the appellant's costs of that appeal to be taxed.
CATCHWORDS:	DAMAGES - PERSONAL INJURY - Work accident - back injury - future economic loss - loss of earning capacity
Counsel:	K. Dorney Q.C., with him M.. Eliadis for the Appellant P. Cleary for the Respondent, Boral Resources (Queensland) Pty. Ltd. R. Trotter for the Respondent, Suncorp Insurance and Finance
Solicitors:	Graham Davies & Associates, t/a for Gary Gear & Associates for the Appellant Neil O'Sullivan & Rowell, for the Respondent, Boral Resources (Queensland) Pty. Ltd. Neil O'Sullivan & Rowell, t/a for L.A. Evans for Respondent/Defendant by Election Suncorp Insurance and Finance
Hearing Date(s):	16 September 1992