Skennerton v Suncorp Insurance and Finance

[1992] QCA 457

IN THE COURT OF APPEAL	[1992] QCA 457
SUPREME COURT OF QUEENSLAND	Appeal No. 113 of 1991
BETWEEN:

IAN DAVID SKENNERTON

(Plaintiff) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 18th day of December 1992

This is an appeal by a defendant against an amount awarded for damages for personal injuries caused to the respondent plaintiff in a head-on car collision on 6 June 1987. The respondent was then 39 years of age and was 43 at the date of trial. His main injuries were a serious injury to the front of his head which damaged his right eye, broke his cheek bone and some bones of his forehead and severely damaged 18 teeth, a penetrating wound near the left knee, and an injury to the right ankle.

As a result of his head injury he sustained an 85% loss of vision to his right eye which will probably worsen because of an increasing cataract. He is also prone to retinal detachment for the rest of his life as well as glaucoma. These conditions would be difficult to correct if they occurred. The right eye is also chronically irritated by floating loose cells and a fixed dilated pupil which also makes him ultra sensitive to light. The effect of all this is to reduce his general vision as well as his binocular vision so as to reduce his ability for fine judgment. The pupil in his right eye is dilated and frequently bloodshot.

That and a large scar from his nose across his right cheek bone are noticeable but not seriously disfiguring. There is some sensitivity in his lower jaw and he has lost his sense of taste for anything but the four basic tastes.

Shortly after the accident he started developing low back pain which was the result of his injury having rendered symptomatic a previously asymptomatic degenerative condition in his lumbo-sacral spine. This condition has persisted. It may not have ever produced symptoms of any real seriousness but for the accident.

The injury to his ankle causes him pain which is aggravated by walking or standing for other than a short time, climbing stairs, negotiating uneven ground or slopes, carrying weights and other like activities. His current disability is 15% loss of use of the leg which will increase to 30% loss of use in the future.

By far the most serious disability results from his head injury which has caused a frontal lobe syndrome which will not improve. Before the accident the respondent was of above average intelligence, had a extroverted outgoing personality, mixed well and had a circle of good friends.

He was something of a perfectionist with a strong desire and motivation to excel in these fields in which he was talented and interested. He was a good organiser, had an excellent memory and was, so the learned trial judge thought, capable of performing long hours of concentrated work. He was active in many outdoor pursuits. Since his accident he has been moody, aggressive, emotionally disinhibited, often tearful and has lost most of his friends. He is still a perfectionist but has lost a great deal of his organisational skills and has substantial impairment of his memory and concentration. This causes frequent frustration and of course he can no longer enjoy many of his outdoor activities partly because of his mental changes and partly because of the physical disabilities which we have described.

The above summary of the respondent's injuries and disabilities we have taken, with little alteration, from his Honour's judgment. None of this was criticised by the appellant. Of his Honour's total award of damages of $633,369 the appellant attacked three components; past economic loss of $105,000, future economic loss of $411,000 and pain and suffering and loss of amenities of $80,000.

This last component the appellant simply said was too high.

Its detailed submissions were reserved for the first and

second components referred to.

The respondent graduated from the Queensland Conservatorium in 1967. He was clearly an outstanding student and received a number of prizes and bursaries. For a time he pursued a career as a professional musician. He then performed national service in the army and, upon his discharge in 1970, joined the Northern Command Band in which he served until 1974. Whilst in the army he commenced collecting and researching and writing about firearms. In 1977 he opened a gun shop specialising in collectors' pieces and military books. In 1979 he closed that shop and went to England to pursue the study of British firearms. He remained there until 1981. During that period he continued to buy and sell collectible firearms. In 1985 he worked as a production assistant with a film crew in Thailand, Vietnam and Kampuchea. However, during the five years prior to his accident in 1987 his main source of income was from the sale of books which he wrote on firearms. He also earned some income during that time from playing part time in a rock band and from buying and selling collectible weapons.

His Honour arrived at the above figure for past economic loss by allowing a net weekly sum of $450 over the whole period of four and a half years between accident and trial.

That figure is an average of $300, his Honour's estimate of what the respondent was earning at the date of his accident, and $600, his Honour's estimate of the plaintiff's earning capacity, had he not been injured, at the date of trial. The estimate of $300 was based by his Honour on a rejection of the respondent's income tax returns which showed that he had sustained a loss for income tax purposes in each of the five years preceding the accident and on an acceptance of the respondent's evidence that he had had no difficulty in supporting his family during those years and did not think that he had ever resorted to unemployment benefits for that purpose.

The respondent claimed that his income tax returns were substantially accurate though he said that his "lifestyle was tax deductible" which seems to imply that many of his living expenses were claimed as tax deductions. Mr Fraser, an accountant who looked at the respondent's returns and records over this period, said that the respondent had apparently failed to bring all of his stock in trade, his books, into account in each of the five years preceding the accident.

In view of the above evidence of the respondent that his lifestyle was tax deductible and of Mr Fraser that the respondent had failed to bring into credit in each year stock on hand, we think that his Honour was correct in rejecting the respondent's income tax returns as showing how much he really earned during the years immediately preceding the accident. And we think that in view of that evidence by the respondent and the further evidence by him that he had had no difficulty in supporting his wife and children during these years without, so far as he could recall, resorting to unemployment benefits, his Honour was entitled to arrive at an estimate of $300 a week as his net weekly income at the time of the accident.

His Honour's estimate of $600 per week net at the date of trial bore no real relationship to the sum of $300 per week at the date of accident. It was fixed, not by reference to the estimate of earnings at the date of accident increased by effluxion of time and advancement, but by reference to the capacities which the respondent had to earn income from other sources.

His Honour did not think that the respondent would, in the future, earn more than a relatively small sum from the writing of books. He thought there was not much left to write about on English military equipment of the type which interested the respondent and there were few other possibilities. His Honour's conclusions in this respect are not challenged by either party. Nor does the appellant challenge that the respondent was talented in a number of other fields; as a musician, both as a player and as a composer; and as an adviser to television and film studios on weaponry and as an armourer in the film and television industry. The appellant says, however, that his Honour did not assess the chance of the respondent earning income in one or other or even several of these fields; rather he arrived at the figure of $600 net per week on the assumption that the respondent had become fully employed in the most likely prospect of these, as a clarinettist with the Queensland Symphony Orchestra with additional income from teaching and from other pursuits.

A Mr Jacobson, who had been the respondent's music teacher and a clarinettist with the Queensland Symphony Orchestra, gave laudatory evidence of the respondent's musical talents primarily as a clarinettist but also as a pianist, a saxophonist and a composer. He thought that, given the existence of a vacancy, the respondent would be capable of obtaining the position as one of the two clarinettists in the orchestra. If he attained such a position, Mr Jacobson thought that he would be able to supplement his income from that job with at least twelve hours per week of tertiary tuition at the Conservatorium or privately. The salary of a clarinettist was about $27,000 per year, the income from tertiary tuition an additional $15,000 per year, making a total gross sum of $42,000 or $25,000 net after tax; that is about $500 net per week. His Honour accepted this evidence "in general" recognising that it was "necessarily speculative".

His Honour also concluded that at all times the respondent would have been keen to join the Orchestra and that, if he obtained a position in it, he would probably have remained there until aged 65, treating it as his basic job. The first of these conclusions is inconsistent with the objective facts that, apart from occasionally playing a synthesiser and the saxophone in a rock band, the respondent had not played a musical instrument since 1974 although, it should be added, there was a vague suggestion that he had done some teaching for his mother, who was a music teacher, in the late 1970s; that he had sold his clarinet; and that he did not apply for a position as a clarinettist in the Orchestra which fell vacant in November 1986 only seven months before the accident. And the second is inconsistent with the variety of the respondent's occupations before the accident. However, as his Honour saw and heard the respondent and other relevant witnesses, we are not prepared to disturb these conclusions though allowance must be made for the element of speculation which they also involve.

Allowing for these speculative elements, it does not follow from the conclusions of his Honour referred to in the preceding two paragraphs that the respondent would have obtained one of only two positions as a clarinettist in the Orchestra, positions which fall vacant presumably only when one of the current clarinettists either retires or dies.

Despite the respondent's obvious talents, there are no doubt many other talented musicians in Australia and elsewhere and it may well have been the case that those making the choice would have preferred someone whose career has been dedicated to classical music than someone such as the respondent who, despite his talent, had shown little interest in playing the clarinet for many years. We therefore think that his Honour was wrong in assuming, as we think he must have to reach the figure of $600 net per week, that there was a high likelihood that the respondent would have, by the time of trial, obtained a permanent position as clarinettist with the Orchestra. Even that position with the additional teaching referred to above would have left him $100 net per week below the amount which his Honour assessed as his earning capacity at the date of trial.

His Honour also took into account the lost superannuation benefit which the respondent would have received in an employed position. This was calculated as having a present value of $35,000 approximately which, translated to a weekly sum, we are told represented about $54 per week. It appears therefore that his Honour allowed $50 per week net, in addition to the weekly income from employment in the Orchestra and teaching and the present value of superannuation benefits for income which the respondent would earn from following other pursuits as well.

It seems to us unlikely that, given the decreasing market for books of the kind which the respondent was writing, he could have earned more than a small fraction of that additional sum from that source. His Honour did not suggest that the respondent could have worked as an armourer as well as the above work. He must therefore have thought that he could have earned a substantial part of this additional sum by writing jingles for television or radio as Mr Jacobson suggested; or by writing other music. But as his Honour recognised, Mr Jacobson did not ever write jingles whilst he was employed with the Orchestra, though he has apparently done so since, and the respondent's ability to earn income in either area was never tested.

His Honour thus appears to have assumed, for the purpose of assessing both past and future loss of earning capacity, that by the time of trial the respondent would have been earning income at the rate of $600 per week from all of those sources. This assumption fails, in our view, to take into account the very substantial risk that the respondent would never have obtained employment with the Orchestra and would never have earned income from those other sources.

In summary on this question we think that even the respondent's best chance of earning income at the date of trial did not justify an assessment of $600 per week.

The alternative prospect as an armourer and otherwise as an adviser on firearms in the film and television industry did not appear, on the evidence, to offer the same security of employment as that to which we have just referred. The present armourer employed by the company, in which the respondent had an interest, which provided expertise in this field was earning at the rate of $540 net minimum per week.

However, the income of the company indicated that there were difficulties in continuity of this employment which is not surprising. Consequently the chance of earning $600 net per week from this work at the time of trial and continuously until age 65, or from this and other work, was, we think, more remote. Nevertheless it was an alternative possibility open to the respondent which we accept is now no longer open to him.

We think that his Honour's estimate of $600 net per week must be substantially reduced. Discounting for the risks to which we have referred, we would substitute a sum of $450 per week as the maintainable net weekly earning capacity of the respondent at the date of trial. This affects both his Honour's assessment of economic loss to date of trial and of future economic loss.

We would therefore substitute for the sum of $105,000, the amount which his Honour fixed for past economic loss, the sum of $87,750, being $375 per week for four and a half years; interest for that component is reduced to $23,692.50 and we would substitute for the sum of $411,000, the amount which his Honour fixed for future economic loss, the sum of $308,700 being $450 per week capitalised at 5% for 21 years.

Having regard to the injuries, disabilities and their consequences upon the respondent's way of life, we would not disturb his Honour's assessment of $80,000 for pain and suffering and loss of amenities. Accordingly, we would substitute for the total sum of $633,369 the sum of $509,161.50.

We allow the appeal, set aside the judgment below and substitute judgment for the respondent plaintiff in the sum of $509,161.50 with costs. The appellant should have its costs of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 113 of 1991
Before the Court of Appeal
The President Mr Justice Davies Mr Justice Pincus
BETWEEN:

IAN DAVID SKENNERTON

(Plaintiff) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 18th day of December 1992

MINUTE OF ORDER: Appeal allowed with costs. Judgment

below set aside and in lieu judgment is given for the plaintiff against the defendant for $509,161.50 with costs.

CATCHWORDS:	DAMAGES - APPEAL-MEASURE OF - appeal against awards for past and future economic loss - whether evidence to justify judge's estimate of respondent's potential net weekly earnings - whether estimate inconsistent with evidence - whether ought be substantially reduced
Counsel:	Williams Q.C. with him Hoare for the Appellant Griffin Q.C. with him Egan for the Respondent
Solicitors:	Wonderley & Hall for the Appellant Clayton Utz for the Respondent
Hearing Date(s):	5 August 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 113 of 1991
BETWEEN:

IAN DAVID SKENNERTON

(Plaintiff) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(Defendant) Appellant

__________________________________________________

__

THE PRESIDENT

DAVIES JA
PINCUS JA
__________________________________________________

__

Reasons for Judgment of the Court delivered the

18th day of December 1992

__________________________________________________
__

APPEAL ALLOWED WITH COSTS. JUDGMENT BELOW SET ASIDE AND IN LIEU JUDGMENT IS GIVEN FOR THE PLAINTIFF AGAINST THE DEFENDANT FOR $509,161.50 WITH COSTS.