Staines v Woffenden

[1992] QCA 423

IN THE COURT OF APPEAL	[1992] QCA 423
QUEENSLAND

Appeal No.139 of 1992

BETWEEN:

TERESA STAINES

(Plaintiff) Respondent

- and -

ADRIEN WOFFENDEN

(First Defendant)

- and -

GEORGINA WOFFENDEN

(Second Defendant)

- and -

FLYNNS PTY. LTD.

(Third Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the second day of December, 1992

This is an appeal from a judgment in the Trial Division delivered on 21 May, 1992, but varied by the Trial Judge by increasing the amount of the respondent's damages to correct a mechanical error, on 14 October 1992. The amount ultimately awarded the respondent was $167,501.00. By its notice of appeal filed on 9 July 1992 and understandably, therefore, directed to the initial judgment pronounced on 21 May, the appellant sought an order that the damages awarded to the respondent be reduced and that the respondent pay the appellant's taxed costs of the appeal. Despite the relief sought, one of the grounds of appeal also challenged the trial judge's finding that the respondent's injuries had been caused by the appellant.

The writ by which the action was commenced was issued on 18 December 1985 and named two directors of the appellant as defendants. The endorsement on the writ of summons was as follows:

"The plaintiff's claim is for damages for personal injuries caused by the negligence and/or breach of duty of the Defendants or their servants or agents in the conduct of a Supermarket business conducted by them known as the Ravenshoe "7 to 7" Supermarket, together with interest thereon under and pursuant to section 72 of the Common Law Practice Act 1867-1981."

The only Statement of Claim included in the appeal record is an Amended Statement of Claim. The date when that document was delivered is not clear, but seems to have been early 1990.

In the meantime, the appellant had been added as a defendant on 6 September 1989. No copy of the order is included in the appeal record, but apparently it included a provision deeming the action against the appellant to have commenced on 18 December 1985 when the writ was issued. No appeal was brought against that order, nor was it complained of on this appeal. Eventually, the trial was conducted between the appellant and the respondent and the claims made against the defendants originally named were struck out by consent.

At the commencement of the trial, paragraphs 4, 5 and 6 of the respondent's Amended Statement of Claim were as follows:

"4. The Plaintiff says that, from early in 1982 she was, in the course of her employment with one or more of the Defendants, as part of her duties, called upon to lift heavy cartons and other containers of goods as a result of which she sustained strains and other injuries to her spine and complained to the first and second defendants about this. These injuries and strains appeared to the plaintiff to resolve without any long term consequences.

5. On or about the 20 day of January 1984 the plaintiff, in the course of her said employment, was engaged in loading cartons upon a trolley for the purpose of taking such merchandise through to, and placing it upon shelving in, the said Supermarket. As the Plaintiff was bending over picking up a carton to place it on the trolley she sustained an injury to her back.

6. The injury sustained by the plaintiff and the consequences thereof were caused by the negligence and/or breach of statutory duty of the Defendants or the one or more of them or their servants or agents in that it or they: -

..."
Particulars had been given by the respondent to the

appellant at its request on or about 2nd October 1991. In her particulars, the respondent stated that she could first recall suffering a strain on or about 14th July 1983 when she was lifting a heavy box or a bag of laying mash when she felt her back give and it commenced to cause great pain.

The appellant also said that there were other occasions when she was lifting when she may have suffered strains but that she did not specifically recall the same except that these occasions were mainly after July 1983. Details were given of various articles which she might have been lifting, and she went on to say that the strain or injury sustained on 14 July 1983 "more or less resolved from its worse stage over a period of about 2 months, and thereafter, until the time of the incident in January 1984, she suffered pain and aching in her back from time to time" during or following lifting activities.

Although the injury suffered on 14 July 1983 occurred within three years prior to the issue of the writ, the appellant objected that a claim based on that injury introduced a new cause of action which was statute barred when the Amended Statement of Claim was delivered. According to the appellant, the Amended Statement of Claim had narrowed the endorsement on the writ and abandoned any claims encompassed by the writ endorsement which were not included in the Amended Statement of Claim which, it was argued, was confined to the injury sustained by the respondent on or about 20 January 1984.

However, over the appellant's objection, the trial judge permitted the respondent to substitute the word "injuries" for the word "injury" in paragraph 6 of the Amended Statement of Claim and proceeded to determine the action on the basis of both injuries sustained by the respondent.

The first ground of appeal is that the trial judge erred in law in permitting the respondent at trial to introduce a new cause of action for an injury which the respondent allegedly sustained in or about July 1983 and which was, at the time, statute-barred.

It is convenient to state immediately that this somewhat unmeritorious point fails. Paragraphs 5 and 6 of the Amended Statement of Claim, when taken in conjunction with paragraph 4, do not limit the respondent to the injury she suffered in January, 1984. This conclusion is fortified by the circumstance that the appellant seems to have been of a similar view both when it delivered its Defence and when it made its request for particulars. A perusal of the particulars asked for clearly demonstrates that they had no substantial purpose if the respondent's case did not extend to other injuries referred to in paragraph 4, as well as the specific injury pleaded in paragraph 5, of the Amended Statement of Claim.

The second ground of appeal was that the findings of the trial judge that each of the injuries sustained by the respondent in or about July 1983 and on or about 20 January 1984 was caused by the negligence of the appellant were unsupported by the evidence. The basis for this contention seemed to be in the proposition that, since the trial judge had "no evidence as to the weight or weights which the [respondent] was lifting at the relevant time ... there was no evidence to support the finding ... that the weights were such that the plaintiff should not have been handling them ...".

However, a fuller statement of the Trial Judge's

findings diminishes the force of the appellant's complaint.

His Honour said:

"The [respondent] was regularly required to lift and carry boxes of significant weights. ... . The [respondent] was regularly required to lift weights beyond [acceptable] limits. ... .

...

I find that no warnings or instructions were given. ... Given the weights involved it was plainly forseeable that there was a risk of injury in lifting them. There should have been an appropriate system in force, involving adequate training and instructions, and there should have been continued supervision of employees in relation to adherence of the system. ...

The [respondent] was suffering from what she described as niggling pains before July 1983. The evidence is not very specific about an accident which occurred in July 1983. The [respondent] was lifting cartons when she developed pain in the back which continued over the next two months. I do not have any evidence as to what might have been the weights of the cartons. ...

... The accident of January 1984 occurred in the storeroom. ... I find that on the occasion in question she leaned over one carton or crate in order to pick up another, when she felt a very severe pain in the lower back. She ceased work and has not resumed work, except for one brief and unsuccessful attempt.

... The [respondent] had a long standing problem at the lumbar sacral level. This was probably exacerbated by lifting in the period before January 1984. The incident of January 1984 produced a fresh injury at the L4/L5 level which reduced the [respondent's] capacities to the level which has remained since then. ...

...

... The [respondent] had a long standing condition which would in due course have brought her to her present situation. The significant events in the acceleration of her degeneration where those of 1983 and 1984, the latter being much the more significant.

I have no evidence as to the weight or weights which the [respondent] was lifting at relevant times, but I think it more probable than not, and I find, that the weights were such that the [respondent] should not have been handling them at all, or should not have been handling them except in accordance with adequate instructions. In either event I find that her injuries were caused by the [appellant's] failure to have a proper system in place, and that its failure in that regard was negligent. ... "

It was open to the trial judge to hold that, as the plaintiff was injured when she was lifting and that she was regularly required to lift weights beyond acceptable limits, it was more probable than not that she was lifting weights beyond acceptable limits when she was injured.

The appellant's remaining grounds of appeal related to the damages awarded to the respondent.

His Honour found that, had the injury of January 1984 not been sustained, the respondent "would have been able to continue working until about 1994, when significant symptoms would have developed, reducing her to her current situation over a period of time which cannot be specified, but which I assume for the purpose of assessment of damages to be comparatively short". In the event, his Honour allowed 7 years as the period after the trial for which the respondent would have been able to work but for her injuries.

His Honour also said:

"Since the accident she has suffered from continual low back pain with familiar consequences. She lives in her own home, a marriage and a de facto relationship having broken down. She has with her one child of her own and four small children who have been placed in her care, their mother being deceased. ... She manages the household with help from the children, and with help from friends."

Later, His Honour continued:

"There was a claim for loss of income to date which, if one took a full time basis, would amount to around $70,000.00. The claim covers a considerable period and there is a variety of relevant contingencies. I allow $50,000.00.

So far as the future is concerned the plaintiff's spine in any event would have been deteriorating over a period commencing comparatively soon, and thus she would have increasing difficulties in obtaining employment. I therefore think that the amount which is to be the basis of an assessment should be reduced to $200.00. One could not allow more than 7 years, that is 7 years purchase, which is what I allow. The result is a sum of [$61,605]* ... There is a claim for help, past and future. I allow $16,000.00 for the past and $14,000.00 for the future, a total of $30,000.00. I assess general damages at the sum of $40,000.00.

...

The items then are past economic loss $50,000.00, future economic loss [$61,605]*, costs of assistance $30,000.00, general damages $40,000.00 ... ."

[* Initially, the trial judge had inserted an incorrect
figure at these places]
The appellant submitted that the respondent should not

have been allowed any amount for future economic loss. Even if she had not been injured by the appellant's negligence, her own evidence indicated that she would have ceased work in 1991 to look after the four infant children of her de facto husband's deceased sister. In the circumstances, the award of $61,605 for future economic loss is unsustainable and must be reduced, although the respondent is entitled to some amount to reflect the possibility that, perhaps through changed events, she would have re-entered the workforce prior to the expiration of the period after which she would have been forced to stop work irrespective of her injuries.

Complaint was also made by the appellant of the amounts allowed for past ($16,000) and future ($14,000) care which are asserted to be manifestly excessive. The detail of these claims was contained in an exhibit which sought $19,546.00 for past care and $56.00 per week into the future. The respondent, on the other hand, contended that no basis existed for the reduction of the amounts claimed which, it was asserted, were supported by the evidence.

The Court was asked to draw an inference, based on what had occurred in other cases, that the trial judge had erroneously calculated the cost of past and future care by reference to reduced, rather than commercial rates.

Before dealing further with these matters, it is desirable to notice another matter raised by the respondent. As set out above, when dealing with the respondents' claim for past loss of income, the trial judge said:

"There was a claim for loss of income to date which, if one took a full time basis, would amount to around $70,000.00. The claim covers a considerable period and there is a variety of relevant contingencies. I allow $50,000.00.:

His Honour was incorrect. If, as he said, "one took a full time basis", the respondent's past loss of income would have amounted to approximately $109,000.00. The sum of $70,000.00 was an adjusted figure related to the circumstance that the respondent had previously worked part- time, not full-time. Although it does not clearly appear that the "variety of relevant contingencies" used by the trial judge to discount past economic loss to $50,000.00 included the circumstance that the respondent worked only part-time, that cannot be ignored. Overall, it seems that the trial judge considered that taking into account those factors, including the circumstance that the respondent had only worked part-time, a discount of that magnitude was appropriate. On this footing, the respondent is entitled to some increase in respect of this head of damages.

The net result is that the judgment contains an error in favour of the appellant in respect of past income, a larger error in favour of the respondent in respect of future income and scope for significant dispute each way in respect of past and future care. Fortunately on these last two issues the amounts involved are comparatively small, for there is insufficient detail in the judgment to ascertain how the trial judge arrived at the sums of $16,000.00 for past care and $14,000.00 for future care.

In the circumstances, the most satisfactory course is for this Court to look at the global award and to assess whether, overall, the balancing of the errors would sufficiently favour the appellant to justify the Court's interference: see Elford v. F.A.I. General Insurance Co. Ltd. (unreported decision of the Court of Appeal, Supreme Court of Queensland 1/4/92).

The total error in favour of the respondent seems unlikely to exceed $20,000.00. In the circumstances, this is not a sufficient error in an award of $167,510.00 to warrant allowing the appeal.

Accordingly, although the damages are high, the appeal is dismissed with costs to be taxed.

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No.139 of 1992

Before the Court of Appeal

The President
Mr Justice McPherson

Mr Justice Derrington

BETWEEN:

TERESA STAINES

(Plaintiff) Respondent

- and -

ADRIEN WOFFENDEN

(First Defendant)

- and -

GEORGINA WOFFENDEN

(Second Defendant)

- and -

FLYNNS PTY. LTD.

(Third Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the second day of December, 1992

MINUTE OF ORDER:	Appeal dismissed with costs to be taxed.
CATCHWORDS:
Counsel:	Mr C.A. White for the appellant Mr J. Webb for the respondent

Solicitors: Messrs. Kilner and Black t/a for Messrs.

Murray Lyons and Co. for the appellant

Messrs. Gayler Cleland Towne for the

respondent

Hearing Date: 20th November, 1992

IN THE COURT OF APPEAL

QUEENSLAND	Appeal No. 139 of 1992
BETWEEN:

TERESA STAINES

(Plaintiff) Respondent

- and -

ADRIEN WOFFENDEN

(First Defendant)

- and -

GEORGINA WOFFENDEN

(Second Defendant)

- and -

FLYNNS PTY. LTD.

(Third Defendant) Appellant

The President
Mr Justice McPherson
Mr Justice Derrington
Judgment of the Court delivered on the

second day of December, 1992

APPEAL DISMISSED WITH COSTS TO BE TAXED.