Simon Transport Pty Ltd v Towell

[1995] QCA 309

IN THE COURT OF APPEAL	[1995] QCA 309
SUPREME COURT OF QUEENSLAND

Appeal No. 214 of 1994

Brisbane
[Simon Transport Pty. Ltd. v. Towell]

BETWEEN:

NOEL ARTHUR TOWELL

(Plaintiff) Respondent

AND:

SIMON TRANSPORT PTY. LTD.

(Defendant) Appellant

Davies J.A.
Demack J.

Shepherdson J.

Judgment delivered 21/07/1995

Joint reasons for judgment by Davies J.A. and Demack J.;

Shepherdson J. agreeing.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS: PERSONAL INJURIES; whether contributory negligence; assessment of damages - loss of economic capacity.

Counsel:	Mr. J. Griffin Q.C., with him Mr. P. Bickford for the appellant Mr. I. Molloy for the respondent
Solicitors:	Clayton Utz for the appellant Shepherd & Associates for the respondent

Hearing Date: 8 June 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 214 of 1994

Brisbane

Before Davies J.A.

Demack J.

Shepherdson J.

[Simon Transport Pty. Ltd. v. Towell]

BETWEEN:

NOEL ARTHUR TOWELL

(Plaintiff) Respondent

AND:

SIMON TRANSPORT PTY. LTD.

(Defendant) Appellant

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND DEMACK J.

Judgment delivered the 21st day of July 1995

Mr. Towell was born on 2 May 1939. On 25 September 1989 he sustained an injury in the

course of his employment with the defendant. When his action against the defendant was heard in

the District Court, judgment was given in his favour in the sum of $147,893 together with costs.

From this judgment the defendant has appealed, contending that the trial judge was in error

in not finding the plaintiff guilty of contributory negligence and in his assessment of damages.

Mr. Towell was employed by the defendant on a casual basis as a truck driver. On

25 September 1989, he lifted a folded tarpaulin, as he had often done before, and felt a severe pain

in his lower back. The tarpaulin weighted between 39 and 60 kilograms. The trial judge found the

defendant guilty of negligence in failing to require the use of a forklift, in failing to warn the plaintiff of

this danger of manual lifting and in failing to supervise and enforce a system of mechanical lifting.

There is no challenge to this finding.

The defendant's contention is that the plaintiff failed to take reasonable care for his own

safety because he did not tell his employer he had back problems and because he did not seek

assistance. These issues were raised at the trial, and it is appropriate to quote from the reasons for

judgment:

" This is to impute too much knowledge to the plaintiff concerning the state of his lower back and too much responsibility for devising a safe system of work on his own behalf. His low back injury had been in 1971 when he had been off work for a week. He had no recollection of low back pain in 1982-1983 tending to focus on the injury to his leg at that time. That seems legitimate as Dr. Blue concedes that the low back symptoms which he experienced at that time were consequential on the leg problem and were temporary. Apart from that he had only experienced discomfort in his lower back at a level that did not prevent him from strenuous work over many many years. No doctor had at any time told him that he was unfit for such work.

Added to this is the fact that the accident occurred on a Monday morning when the depot was very busy and when forklifts were not readily available. It was a common practice for men to handle the tarpaulins manually. The plaintiff was a busy hard-working employee with his mind focused on the job in question.

I should say that I found the plaintiff to be a truthful, reliable witness. He is a working man and not a scholar and he may not have expressed himself as lucidly as he might have on certain occasions. The description of his pain to Dr. Morris as 'occasional' and 'niggling' is one such instance.

Not every careless or inadvertent act of an injured workman will amount to contributory negligence on his part. As was pointed out in the judgment of the majority in Bankstown Foundry Pty. Ltd. v. Braistina (1985-1986) 160 C.L.R. 301 at 310:

' A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of the finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage; see Podrebersek v. Australian Iron and Steel Pty. Ltd. 59 A.L.J.R. 494.'

In the circumstances I find that the plaintiff did not fail to have proper regard

for his own safety. The allegation of contributory negligence therefore fails."
Criticisms were directed at this passage. First, it was submitted that Dr. Blue's opinion was

not in the terms suggested. That is so, but the important part of the passage, so far as medical

matters are concerned, is that no doctor told him he was unfit to work. He certainly experienced

back pain, but he kept working. More significantly he had previously lifted tarpaulins like the one he

lifted on 25 September 1989. It is unreasonable to expect a worker to tell an employer that he is

physically unable to perform a task for which he is employed, when no doctor has ever told him that.

It was also submitted that it appears as if the trial judge treated Mr. Towell's act as

carelessness or inadvertence. When the relevant words are looked at, they do not bear that

implication. They are merely an introduction to the quotation from Bankstown Foundry Pty. Ltd. v.

Braistina (1986) C.L.R. 301. The "circumstances" upon which the trial judge based his decision are

those contained in the whole passage that has been quoted.

The findings expressed in that passage show that no contributory negligence was proved.

Mr. Towell was performing a task he had done before and he was working according to the existing

system with its inherent risks. The appeal in respect of this part of the judgment fails.

The appeal in respect of the assessment of damages was concerned mainly with the question

of loss of economic capacity. Mr. Towell had one week off work but then continued working for

the defendant until 12 April 1991. He was told he was being put off because there was a lack of

work. It seems there were other reasons as well. Towards the end of 1989 Mr. Towell had sought

work with the defendant that involved no lifting. This resulted in a drop in his income.

Mr. Towell had pre-existing degeneration in his lumbar spine. The trial judge accepted

evidence from an orthopaedic surgeon that Mr. Towell would have problems with his back within

five to ten years from 1989. He assessed damages on the basis that the plaintiff would have worked

for seven years after 1989. This was criticised but it is notoriously difficult to make this kind of

assessment. Medical experts disagree, as they did at the trial, and the judge must make an

assessment that is based in part upon the assessment of the plaintiff. Mr. Towell had had previous injuries, but he returned to work after them, and continued to work hard. In such circumstances, it

cannot be said there is an error in selecting seven years as the prospective duration of the plaintiff's

working life as a truck-driver.

In fact, Mr. Towell worked during the first eighteen months of that seven-year period. The

assessment was made on the basis of a past loss of $450 per week for three-and-a-half years and a

future loss of $450 per week for two years. The figure of $450 was chosen by the trial judge because

of the unchallenged evidence from the plaintiff that when he ceased work, truck-drivers were earning

between $400 and $500 per week. Mr. Towell's actual earnings before his injury were $413 per week.

That, of course, was in respect of a period that ended one-and-a-half years before he stopped work.

After his accident, his weekly earnings were $305. According to his evidence, this drop in income was

caused by his injuries. This involved a loss of over $8,000 which was not specifically reflected in the

way in which the trial judge assessed past economic loss. However, his Honour made it clear that in

allowing the amount of $81,900 (three-and-a-half years at $450 per week) for past economic loss, he

took account both of discounting and of the diminished income between accident and termination. If the

weekly loss was only $413, which was the pre-accident average net weekly income Mr. Towell earned

from the defendant, over a three-and-a-half year period, the raw sum his Honour calculated would be

overstated by $6,734. If the other discounting which might properly be applied to a hard-working man

was of the order of $1,000 to $2,000, the figure the trial judge allowed would be mathematically

correct. This demonstrates the soundness of the broad approach the trial judge took.

For the future economic loss, a period of two years is involved. The figure of $450 per week

may be a generous one in the light of the pre-trial weekly income of $413. However that represented

earnings prior to September 1989, and it is impossible to say that the trial judge committed an error

which must be corrected on appeal in making the choice he did.

The fact that interest was allowed on the amount awarded for past economic loss over the whole

period from the accident to the trial was criticised. It is true that the bulk of the loss occurred after April

1991, but there was a diminution in income soon after the date of the accident. The award of interest is

always made on a broad basis and there is no error in the approach that was taken.

In our opinion the appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 214 of 1994
Before	Davies J.A. Demack J. Shepherdson J.

[Simon Transport Pty Ltd v. Towell]

BETWEEN

NOEL ARTHUR TOWELL
(Plaintiff)

Respondent

AND

SIMON TRANSPORT PTY LTD
(Defendant)

Appellant

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered on the 21st day of July 1995

I have read the reasons for judgment prepared by Davies J.A. and Demack J. I agree that the

appeal should be dismissed with costs and for the reasons which they have given.