Stanfield v Bane

[1992] QCA 45

IN THE COURT OF APPEAL

[1992] QCA 045

SUPREME COURT OF QUEENSLAND

Appeal No. 54 of 1991

Before the Court of Appeal

The President

Mr. Justice Davies

Mr. Justice Thomas

BETWEEN:

DARRYL ARTHUR STANFIELD

(Plaintiff)          Appellant

AND:

DAVID ALLAN BANE

(Defendant)         Respondent

JUDGMENT OF THE COURT

Delivered the 1st day of April 1992.

MINUTE OF ORDER:
Appeal allowed with costs.  Judgment set aside and in lieu thereof, judgment for the appellant for $161,549.45 with costs of and incidental to the action to be taxed.
CATCHWORDS:
Appeals - damages - error in assessment of components of damage including arithmetical error - whether assessment overall should be interfered with.

Counsel:S.Q. Jones Q.C., with him D.V. McMeekin for the appellant.

J. Griffin Q.C, with him C.F. Bagley for the respondent.

Solicitors:Gilshenan & Luton, town agents for Macrossan & Amiet for the plaintiff.

Barron & Allen for the respondent.

Hearing date: 17th February 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 54 of 1991

BETWEEN:

DARRYL ARTHUR STANFIELD

(Plaintiff)          Appellant

AND:

DAVID ALLAN BANE

(Defendant)         Respondent

JUDGMENT OF THE COURT

Delivered the 1st day of April 1992.

This appeal is based upon the alleged inadequacy of damages ($151,606.45) awarded in favour of the plaintiff in the District Court.  In particular it was submitted that the allowances for past economic loss and future economic loss were manifestly inadequate. 
     The appellant suffered multiple injuries in an accident on 8 November, 1988.  Those with significant long-term effects were to the left leg, and to the left thumb involving the scaphoid.  He has been left with an ungainly limp and considerable instability in his knee.  The medical opinion is that he has a permanent disability in the left leg of the order of 30 per cent, and a permanent disability of the left hand of 20 to 25 per cent with the prospect of some deterioration.  Future surgery is a probability, involving reconstruction of ligaments in the short-term, and possible knee replacement in the long-term (after 15 years).  Three months' inability to work would be involved in each operative procedure.
     At the time of his accident on 8th November, 1988 the appellant was a 40 year old man.  He had left school at age 13 and worked in many occupations including farm hand, stockman, labourer, dump truck operator, plant operator, truck driver and others.  The particulars of his employment over the six years preceding the accident were examined fairly closely at trial, and they show the following record of earnings and periods of employment.

Tax year	Taxable income	Weekly average taxable income	Period employed
1983	$26,940.00	$518.00	11 months
1984	$16,978.00	$326.00	8 months
1985	$11,750.00	$226.00	7 months
1986	$4,560.00	$87.00	3 months
1987	$25,127.00	$483.00	12 months
1988	$2,745.00	$53.00	1 month
July-November 1988 (19 weeks)	$1,200.00	$63.00	1 month

The above figures are only approximations but they are somewhat revealing as evidence of periods of well-paid work followed by periods of unemployment.  They show earnings of about $90,000.00 over six years and five months, or an average yearly taxable income over the period of about $14,000.00 (about $270.00 per week).  They also show that he was in employment for about 55 per cent of the time.  It is surprising that no attempt was made to reduce the figures to nett income, either at trial or on appeal.  For the present it is enough to be aware that the suggestion that the appellant's relevant average earnings during the six years preceding the accident were $270.00 per week errs significantly in favour of the appellant.
     Some attempt was made to suggest that the earnings over part of this period were non-typical.  The low earnings were said to be explicable on the basis that he had separated from his wife in February 1984, whereupon according to the appellant he "dropped his bundle a bit" and "generally threw the towel in".  Whilst it is fair to take his marital separation into account in his favour as affording some explanation of lower earnings for a period, it is by no means a satisfactory explanation for the ensuing history, particularly as it would seem that the 1986-1987 year was one of full employment.  That satisfactory year was then followed by a very low level of employment in 1988.  At the time of the accident he was on unemployment benefits.
     However the appellant has the benefit of findings that at the time of the accident he had a promise of future employment by Rimpac as a plant operator and that he would probably have taken that employment.  Soon after the accident he was advised by Rimpac that a position was available from January 1989, but of course he could not then take it because of his injury.  His expected earnings in such a job were about $490.00 nett per week.  He attempted to recommence employment in late February 1989 as a supervisor for a butchery, but the physical demands of that employment were beyond him, and he left the job after earning only $250.00.  The learned trial judge regarded the appellant's attempt to return to work at that stage as a favourable indication of his character.  A few months later, on 16th June, 1989 he accepted employment with T.T.S. Transport with nett earnings of just under $700.00 per week.  That employment subsisted until 11th August, 1989, when T.T.S.'s contract finished.  His next employment was as a dozer operator at Alligator Creek during November/December of 1989 where his earnings were about $300.00 per week.
     In the following year (August 1990) he sought and obtained employment with the Queensland Government Railways commencing as a labourer and subsequently being employed as a plant operator.  He remained so employed until February 1991, a few months prior to trial, when he resigned.  He was then unemployed until trial in May 1991.
     In the periods between the abovementioned employments he was in receipt of unemployment benefits.
     The learned trial judge made the following observations on the probable future effect of his disabilities:-

"His capacity to engage in work of the type he has hitherto done has been totally destroyed, in my view.  The ability to drive heavy vehicles and earthmoving machinery is the only skill he possesses and his only other attribute was his physical ability to do hard work.  He has no academic attainment and no training which may have fitted him to perform clerical work or light semi-skilled work.  The network of contacts and referees which the plaintiff may have built up by virtue of his past may be of little value in the search for suitable employment in fields where he has no past experience.  In the search for suitable, light semi‑sedentary work he will be at a considerable disadvantage as a disabled inexperienced middle-aged man."

His Honour however regarded him as fit for light, semi‑sedentary employment.  The finding that he "will in the future earn some income from some form of endeavour" seems realistic having regard to his actual history since the accident.  However because of the uncertain nature of his pre‑accident earning capacity, the doubt surrounding the extent to which he would have exercised it, and the difficulty in evaluating his residual earning capacity, His Honour found it necessary "to adopt a very broad brush approach in relation to the assessment of future economic loss".
     Sufficient of the salient facts and findings have now been stated to permit analysis of the amounts awarded by His Honour for past economic loss and future economic loss.
PAST ECONOMIC LOSS
     Although the evidence extended only to the date of trial (13th May, 1991), His Honour made clear his intention to assess past economic loss to the date of the judgment (21st June, 1991).  No objection was taken to this course by counsel for the respondent.  Consistently with this future economic loss should be taken from the same date.
     The past economic loss covering the period between accident (8th November, 1988) and judgment (21st June, 1991) was assessed over three periods as follows:-

Awarded by
  His Honour

(a)Loss between 8.1.88 and 16.6.89              $6,400.00

Interest$1,408.00

(b)Loss between 16.6.89 and August 1990         $8,250.00

Interest  $  907.50

(c)Loss between August 1990 and judgment        $3,700.00

Interest  $   62.00

Total  $20,727.50

With respect to the first period, there was no loss during the first month after the accident because the appellant was unemployed and did not expect to obtain employment until the Rimpac job eventuated sometime in December.  In the event he was unemployed (except for a period of one week) until 16th June, 1989.  If it be assumed that the Rimpac employment would have lasted until June 1989, the calculation of this loss would be a fairly straightforward exercise, because its remuneration is known to be about $490.00 nett per week.  However the evidence that Rimpac ceased trading "a couple of years ago" gave concern to His Honour that any such employment "may well have ceased in the first half of 1989 so that the appellant would have had to seek other employment".  Had that occurred, His Honour considered that the weekly earnings would have been somewhat less.  His Honour therefore concluded that there was sufficient uncertainty to justify taking a conservative approach to the assessment for this period, and assessed the loss at $6,400.00 after bringing into account the sum of $250.00 earned at Petersons Butchery.  It follows that the notional earnings from Rimpac or some substitute employer between December 1988 and June 1989 were assessed by His Honour at $6,650.00, covering a period of 26 weeks.  In other words His Honour allowed an average loss of about $255.00 over this period during which it is reasonable to suppose that for a substantial part of it he would have been earning $490.00 nett, and for at least part of the balance of it, between $250.00 and $300.00 per week.
     On the basis of His Honour's findings with respect to this particular period, particularly having regard to fact that employment with Rimpac for a significant part of the time was a virtual certainty, and to the fact that he was actually offered an alternative position with T.T.S. (at a higher rate of pay) as early as January 1989, the discounting for this particular period seems excessive.
     His potential earnings at Rimpac over this period were about $12,740.00, and, unlike a number of other periods in his working history, the probability of his employment in this particular job or another well-paid job were quite strong.  A proper assessment should have made only a slight discount, and of course would deduct the actual earnings of $250.00.
     For the above reasons the assessment of $6,400.00 seems inadequate, and a proper assessment on the basis of the primary findings of fact would have been in the region of $12,000.00.
16th June, 1989 to August 1990
     The appellant was employed with T.T.S. until 11th August, 1989, when the work "cut out".  The cessation of T.T.S.'s contract at that time was regarded by His Honour as a normal incident of the appellant's working life, and he did not regard the unemployment between 11th August, 1989 and November 1989 as an incident for which the defendant was responsible.  The appellant was then employed as a bulldozer driver in November and December at $300.00 per week.  We do not understand any challenge to be made to His Honour's decision to award no loss in respect of the period June 1989 to December 1989. 
     His Honour then proceeded to assess damages between December 1989 and August 1990 and awarded $8,250.00 for this period, which is equivalent to an average earning loss of about $240.00 nett per week.  There was nothing special about this particular period, and the proper assessment of damages calls for an estimate of his probable earnings but for the accident.  Having regard to the pattern of his pre‑accident activity and earning level, His Honour could not be said to be in error if he assumed a likely earning level of about $270.00 per week, and made a small discount for the contingencies of life.
     No error is revealed in this particular part of the assessment.
Loss between August 1990 and 13th May, 1991
     There was no loss until 1st February, 1991, because the appellant was employed with Q.G.R.  Counsel for the respondent submitted that the appellant unreasonably resigned from that employment, but the findings of the learned trial judge are to the contrary and there is evidence on which such a view could be taken.  The appellant was therefore entitled to an assessment of lost earning capacity between 1st February, 1991 and 21st June, 1991.  It would seem that His Honour intended to compensate the appellant over this period at the approximate level of pay he had been receiving from Q.G.R. up to 1st February, 1991 ($352.00 nett per week).  His Honour then stated "a further four and a half months have passed producing a loss of some $3,700.00 and I allow that sum ...".  There is a mathematical error here, whether His Honour was intending to apply the Q.G.R. rate of $352.00, or a lower rate closer to that revealed by his pre-accident employments.  Although it may be doubted that the appellant would have undertaken employment with Q.G.R. but for the accident he at least revealed a capacity to earn at that rate at the time, and we did not understand counsel for the respondent to submit that it would be unreasonable to apply a rate of around $350.00 to this particular period of loss.  On this basis counsel for the appellant submitted that His Honour intended to award $6,760.00, but due to a miscalculation awarded only $3,700.00.

An error is therefore shown with respect to this component and counsel for the respondent did not seriously challenge that it deprived the appellant of $3,060.00 which the learned trial judge intended to award. 
     If the award is to be adjusted to remove the errors discussed above, the necessary adjustments will be those shown in the following table.

Awarded by       Adjusted
  His Honour         Amount

(a) Loss between 8.1.88 and 16.6.89      $6,400.00      $12,000.00

Interest  $1,408.00      $ 2,640.00

(b) Loss between 16.6.89 and August 1990  $8,250.00      $ 8,250.00

Interest  $  907.50      $   907.50

(c) Loss between August 1990 and judgment $3,700.00      $ 6,760.00

Interest  $   62.00      $   113.00

Total  $20,727.50     $30,670.50

FUTURE ECONOMIC LOSS

His Honour assessed the loss of future earning capacity at $65,000.00.  This of course included periods when the appellant would be unable to work whilst recovering from future operations.  Although there is some doubt whether the medical evidence supports the knee replacement operation as a probability, His Honour's findings that the appellant will undergo both procedures may be taken at face value for the purposes of testing the award.  On that basis the three months' incapacity for work attributable to the second operation will not occur until very late in the appellant's working life, and having regard to the pattern of his pre‑accident working life it should not be assumed that he would have been continuously employed in any event.  It was not necessary that the learned trial judge make a special and separate assessment of six months' loss of earnings for periods when he will be recovering from operations.  In the circumstances of the present case this factor could properly be taken account of in the level of loss to be reckoned over the whole future period of loss. 
     At trial the appellant's counsel submitted that His Honour should allow an average loss of $200.00 per week for the next 20 years, which would have led to an assessment of approximately $130,000.00.  His Honour declined to award such a sum, observing as follows:-

"The plaintiff's pre-injury employment history highlights the difficulties involved in striking for him an average weekly income from work of the nature he was performing.  He might have earned a very good wage when he did work but continuity of work was not assured.  Recent trends in the mining and earthmoving industries and in the economy generally suggest that I should not optimistically presume that the 'good times' and 'good wages' of the early 1980s will resume soon and then continue for what would have been the balance of his working life.  Nor should it be presumed that, as he grew older, the plaintiff would have continued to pursue the higher wages payable at any mine site."

Before us counsel for the appellant submitted that a multiplier of 20 years should be adopted and that a weekly loss of $350.00 would be justified over the whole period.  Such an approach would yield a present value of approximately $233,000.00.
     There is no reason to believe that His Honour adopted a 20 year multiplier, and it is not necessary that this Court should do so.
  Having regard to the fact that the appellant was a 43 year old man at the time of trial, and to the nature of his employment activities a multiplier of 15 years seems more appropriate than one of 20 years. 
     The submission that the figure should be at least $350.00 per week was founded upon the fact that after the accident, for a time, he was employed by Q.G.R. at $350.00 per week, and that that employment was potentially permanent.  The submission overlooks his work history which indicates that he was unlikely to have taken and persisted in permanent employment with the Q.G.R even if able to do so.  The appellant's counsel also referred to the higher level of earnings since the accident from employers such as Rimpac and T.T.S.  These employments however were short-term and terminated for reasons unrelated to the appellant's ability to work.  It is also necessary to take into account the appellant's residual earning capacity, and it may be noted that his actual earnings since the accident, which include the period of his greatest disability, reveal average earnings of just under $130.00 per week.
     It is difficult to say that the learned trial judge erred in taking a conservative approach in order to give effect to the limited proportion of time during which the appellant was likely to have exercised his earning capacity if he had not been injured.
     For purposes of demonstration only, if one took $400.00 as a measure of remuneration in the type of work in which he was likely to be involved and if one assumed he was likely to have been employed 60 per cent of the time (which is somewhat higher than that revealed by his pre-accident record) one would start with a weekly figure of $240.00.  If the residual earning capacity were taken to be $130.00 per week, the figure for future projection would be $110.00.  Applying a multiplier of 15 years on the six per cent tables, the future economic loss would be $61,050.00.  Even allowing a small increase for the aggravating factor of lost time during recovery from future operations, an assessment of $65,000.00 would be within a proper range.  Of course other exercises may be equally appropriate, but it cannot be said that this award reveals error which calls for interference from this Court.
DISPOSITION OF APPEAL
It seems perfectly plain that but for the errors which have been demonstrated, His Honour would have assessed greater sums for past economic loss.  Although the assessments under the other heads are plainly conservative (as counsel for the respondent conceded although he submitted that both components lay within the range), no other amounts assessed forming part of the total award were so low as to justify interference upon appeal.  Nonetheless, this is not a case where the deficit in damages for past economic loss may be offset by generous assessments under other heads.  Further, a substantial part of the error in the assessment of past economic loss in the present matter was in the nature of arithmetical error rather than erroneous estimate.  In the circumstances, it seems consistent with Elford v. FAI Insurance Company Ltd that the error should be corrected.  Accordingly the appeal should be allowed with costs.  The judgment below should be set aside and in lieu thereof there should be judgment for the appellant for $161,549.45 with costs of and incidental to the action to be taxed.