Sinclair v Hope Vale Aboriginal Council

[1995] QCA 306

IN THE COURT OF APPEAL

[1995] QCA 306

SUPREME COURT OF QUEENSLAND

Appeal No. 34 of 1995

Brisbane

Before McPherson J.A.
Demack J.
Shepherdson J.

[Sinclair v. Hope Vale Aboriginal Council]

BETWEEN

NEAL EDWIN SINCLAIR

(Plaintiff) Appellant

AND

HOPE VALE ABORIGINAL COUNCIL

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 14th day of July 1995

The plaintiff, who is the appellant in this Court, was injured in May 1989 when the Landrover vehicle, in the rear of which he was being driven by the defendant's employee Wandel, struck a hole in the ground at the Hopevale airport. He was thrown into the air from the tray, falling front first across the dropside rear of the vehicle, half in and half out of it, with his legs over the side. At the trial there was an issue as to liability, but it was resolved in favour of the plaintiff and not re-opened on appeal. The only question on this appeal is whether the damages awarded were, as the plaintiff contended, inadequate and should be increased.

At the time of injury in 1989 the plaintiff, who was born on 30 December 1946, was 42 years of age. He was a licensed plumber who, however, had worked at a variety of other occupations before being employed by the defendant as a plumber and other activities from May 1988. The learned trial judge considered the plaintiff was someone who was capable of and enjoyed arduous physical work involving long hours. His Honour said he was satisfied that the incident was a significant one, in which the plaintiff suffered injury to his upper and lower spine.

There were two factors that tended to complicate the assessment of damages. One was that the plaintiff had suffered from significant symptoms in his cervical spine, and to a lesser extent his lumbar spine, resulting from injury sustained while working as a firefighter some years before the incident in May 1989. The other was that the consequence of the later injury seems to have been to induce in him an unhappy frame of mind, which, on one view, led him to make more of his complaints than was really justified. His Honour nevertheless accepted medical evidence to the effect that the plaintiff did have an organic basis for his complaints about the lumbar and cervical spine. He assessed damages on that footing, saying later that the plaintiff would but for the May 1989 accident have had increasing difficulties with his spine and that ultimately he would have been precluded from performing heavy work of the kind he had been engaging in.

The appeal is directed to the trial judge's award of $125,000 for past economic loss and $120,000 for the future, both of which were submitted to be inadequate. In making these assessments his Honour said he considered that a significant discount should be applied to the plaintiff's future economic loss, but that there should not be any significant discount for past economic loss.

As regards future loss his Honour adopted a working life of eight years from the date of trial early this year, which would take the plaintiff to age 57. He said at one point that he was not satisfied that there was any residual earning capacity and was persuaded there had been "a curtailment of significance of his working life". At the same time he also said he considered that the plaintiff would have had increasing difficulties in maintaining work as a plumber or any similar physical line of work. It seems clear from the language used that his Honour meant to refer to the effects of the plaintiff's pre-accident condition in 1989. Dr Lewis's expert opinion was that the plaintiff had suffered an aggravation of an already degenerative spine. We do not think that, as was contended on appeal, that his Honour was intending to ascribe the whole of the 25% disability of bodily function, as it was assessed to be by Dr Lewis, to the injury sustained in 1989. The amount to be awarded thus depended on the rate at which the plaintiff's capacity for such work might be expected to decline. In the circumstances it was not unreasonable to adopt, as his Honour did, an amount of $120,000 representing the present value of a loss of $350 per week (based on hourly rates payable to plumbers in Townsville) throughout the eight year period. Given the premises from which his Honour was reasoning, we do not consider that the amount awarded for future economic loss can or ought to be disturbed.

The award for past loss is another matter. It depended partly on how long the plaintiff would, during the five and a half years before trial, have continued to work at Hopevale, where he was earning about $1000 per week before the accident.

His Honour said it was quite unrealistic to proceed on the basis that he would have remained there indefinitely. The plaintiff's own evidence was that he would have worked at Hopevale for another three years, which would have taken him to May 1992. He was not shaken in cross-examination. Thereafter he would have worked as a plumber for another two and a half years. On this footing he could up to trial in 1995 have earned a maximum of $266,370 nett at Hopevale rates, or a minimum of $183,770 nett at the standard Townsville rate.

His Honour's award of $125,000 for past economic loss does, as was pointed out on appeal, represent only 47% of the maximum and 68% of the minimum that could have been earned by the plaintiff. The discounts applied, respectively of 53% and 32%, are so substantial as to be severe, particularly having regard to his Honour's specific finding that he did not think any significant discounting of past economic loss was warranted.

On appeal the defendant argued that the discount was justified by two considerations that were not specifically mentioned in his Honour's reasons for judgment. One was that when the plaintiff arrived at Hopevale, there was a great deal of work to be done, which by his concentrated exertions was being progressively diminished. Later years at Hopevale would therefore not have returned nearly so large an income. The other factor was the plaintiff's past work record. There were periods when the plaintiff did not work, or at least did not earn any or any substantial income. The year 1984/1985 in which he returned nett loss was one in which he had been working as a taxi driver and operating a gym business. With respect to the purchase of that business, he made a successful claim against his solicitor, which later produced a substantial sum in damages of $46,241. In 1985/1986 his return states he was unemployed for the whole tax year and received no unemployment benefits or other assessable income, but lived frugally off capital and assistance he received from his parents. In fact he carried forward a loss of $23,043.

In 1986/1987 his gross receipts from subcontract plumbing
were $23,006 (nett $20,224, or about $400 per week). At
$19,914 they were only a little less in the following year
1987/1988, which was for the 10-month period, before he began
working at Hopevale.

There is no doubt that he worked long hours at Hopevale and that the work available may have diminished as time went on. However, even if the lower rate for plumbing work is used, the remaining five and a half years (including three at Hopevale) might fairly be expected to have produced substantially more than the amount awarded of $125,000. On appeal the plaintiff argued for an increase to $224,500, which is the mean between the highest and lowest potential earnings; but maintaining his Honour's generally conservative approach, and allowing for contingences, we consider that justice would be done by increasing the award for past economic loss by $75,000 to $200,000. This requires a recalculation of the interest sum of $32,126 allowed on that component, after deducting social security payments received of $27,646.88 = $172,353.22. The rate adopted by his Honour of 6% for five and a half years produces a figure of $56,877 on $172,353.

The result is that the appeal should be allowed with costs by increasing the amount for which judgment was given from $329,326 to $429,077.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 34 of 1995

Brisbane
[Sinclair v. Hope Vale Aboriginal Council]

BETWEEN

NEAL EDWIN SINCLAIR

(Plaintiff) Appellant

AND

HOPE VALE ABORIGINAL COUNCIL

(Defendant) Respondent

McPherson J.A.
Demack J.

Shepherdson J.

Judgment delivered 14/07/95

Reasons for judgment by the Court

APPEAL ALLOWED WITH COSTS BY INCREASING THE AMOUNT FOR WHICH

JUDGMENT BELOW WAS GIVEN FROM $329,326 TO $429,077.

CATCHWORDS	PERSONAL INJURIES - QUANTUM OF DAMAGES - Whether damages for past and future economic loss was inadequate - Whether discount for past economic loss was severe having regard to trial judge's findings that no significant discount was warranted.
Counsel:	R. Douglas Q.C., with him M.E. Pope, for the appellant K.F. Boulton for the respondent
Solicitors:	Thompson King Connolly for the appellant Barker Gosling for the respondent

Hearing Date: 9 June 1995