Telstra Corporation Ltd v Gourley

[1994] QCA 79

IN THE COURT OF APPEAL	[1994] QCA 079
SUPREME COURT OF QUEENSLAND BRISBANE

Appeal No. 195 of 1993

(Mount Isa Writ No. 31 of 1988)

[Telstra Corporation Ltd v. Gourley]

BETWEEN

TELSTRA CORPORATION LIMITED

(formerly Australian Telecommunications Commission)

Appellant

and

ROBIN DAVID GOURLEY

Respondent

Mr Justice McPherson Mr Justice MacKenzie Justice Kiefel

Judgment delivered 06/04/1994

Judgment of the Court
Appeal dismissed

Appellant ordered to pay the costs of the appeal

CATCHWORDS:

Negligence - Personal Injuries - Quantum - Future economic loss - Past gratuitous care

COUNSEL:	Mr Wall Q.C. for the Appellant Mr Clifford Q.C. with Mr T.D.O.J. North for the Respondent
SOLICITORS:	Australian Government Solicitor for the Appellant; Murrell Stephenson as town agents for Conroy and Conroy for the Respondents
HEARING DATE:	22/3/94

IN THE COURT OF APPEAL
SUPREME COURT OF
QUEENSLAND

BRISBANE

Appeal No. 195 of 1993

(Mount Isa Writ No. 31 of 1988)

Before McPherson JA
MacKenzie J
Kiefel J

[Telstra Corporation Ltd v. Gourley]

BETWEEN

TELSTRA CORPORATION LIMITED

(formerly Australian Telecommunications Commission)

Appellant

and

ROBIN DAVID GOURLEY

Respondent

JUDGMENT OF THE COURT

Judgment Delivered 6th April 1994

The plaintiff in this action suffered injury to his left ankle on 10 November 1987 which, despite numerous surgical interventions, resulted in January 1993 in the amputation of his leg below the knee. He was 41 at the date of the accident and was employed by Telecom as a linesman.

Prior to the accident he had suffered from a back condition which had first occurred following an injury in 1975 and was probably aggravated by another event in 1976. His evidence was that in the following years it had caused him difficulty in bending and in lifting heavy objects, that he suffered some referred pain in his legs and sometimes aching at the end of the day and that standing on ladders for long periods of time later caused him pain. His back condition did not constantly cause these problems, but the symptoms, when it did, remained the same. He did not notice that they were getting progressively worse up to the time of the accident.

Some few months prior to the accident in question, in August 1987, he had consulted Dr Foreman. The result of that was a communication by the doctor to his employer to the effect that, in view of the state of his lower back, he ought not to undertake heavy manual work. The evidence was that a regime to accommodate the plaintiff was implemented prior to November 1987. The plaintiff was given a "supervisory" role which means he occupied a position akin to that of a ganger or team leader but undertook most of the tasks of a linesman except for heavy manual work. As the circumstances of the accident itself show his duties continued to include climbing ladders.

The appeal concerns His Honour's award with respect to future economic loss and for past gratuitous care by the plaintiff's partner.

Three grounds were argued concerning the award for future economic loss. Firstly, it was submitted that His Honour had given insufficient weight to the pre-existing back injury with its likely curtailment of his working life. On this ground alone, it was argued, there ought to have been more significant discounting. Then it was submitted His Honour did not allow, and further discount, for the general vicissitudes of life. When taken with the first ground it was said to strengthen the case for further reduction. Additionally it was submitted that His Honour ought to have taken into account the plaintiff's capacity to obtain alternative employment.

His Honour found that the plaintiff's future lay only in largely physical labour and that what little clerical skills he had (having regard to his education and literacy) remained. He was, as a consequence of the injuries, largely unfit for anything except the lightest of work. So much seems incontrovertible. There was unlikely to be any such work available to him. The effects of the 1987 injury on the plaintiff's pre-existing back condition continued for some time, but by trial it had returned to its pre-accident status. The question for His Honour was then whether it would have restricted the plaintiff's ability to continue work and when this might occur.

Although the new working conditions of the plaintiff, following Dr Foreman's advice, had only been in place for a few months prior to the accident, there was no suggestion in the evidence that it was regarded as temporary or that the plaintiff, in that period, was unable to carry out his work. The employer's memorandum putting that system into effect suggested only that the matter was to be

kept under review. Absent the accident, if the plaintiff was to suffer further disability from his back affecting his ability to work no doubt his employer would have considered his future. But the prospect of that occurring was the question His Honour had to decide.

His Honour did take account of the fact that the plaintiff's back had from time to time incapacitated him from work, but that the plaintiff had managed, with the assistance of his employer, to continue and there was no reason to doubt that he would continue to work. His Honour held that the plaintiff would have lost some time off work and that there was a "very real possibility" that he would be unable to continue work until aged 65 or that he would be required to seek alternative employment. His Honour also took into account that the plaintiff would not likely have been in a position to accumulate wealth or otherwise to find himself in a position where he was unable to have the choice of early retirement.

His Honour then proceeded to deal with future economic loss on the basis of a reduction of the plaintiff's working life, taking into account those contingencies relating to his back condition and allowed a loss of his earning capacity limited to 18 years attributable to the injury (a reduction of 6 years from his working life). The current figure for net weekly loss used for the calculation is not in dispute.

The appellant's argument, that a more substantial discounting was warranted, we consider in this case would have required that His Honour ought to have found that the plaintiff's pre-accident state was such that his back would have become progressively worse. This was said to be the conclusion to be drawn from the medical evidence and from the plaintiff's evidence of difficulties he had encountered to the date of the accident.

Neither Dr Watson nor Dr Low base their opinion as to his prospects of continuing work, having regard to the back condition, on clinical x-ray evidence. Dr Low's comments that radiologically there was some progression of degeneration was qualified. Both doctors considered that there was not a necessary correlation between the x-rays and the effect it might have upon him. The more important indications of the condition worsening were to be obtained by reference to pain suffered and other symptoms, and the time the plaintiff had off work. Neither doctor expressed the view that the course thereby charted showed a progressive deterioration.

The plaintiff himself gave evidence that from 1975 to 1987 he had not noticed any progression in the severity of his back condition. Rather, specific activities caused him pain. There was no evidence of an increasing level of absenteeism to the date of the accident. It was part of Dr Low's evidence upon which the appellant placed much reliance. The doctor said that usually persons with such a condition look for lighter work at about age 40 and, if such work is unavailable, can be expected to have a higher degree of absenteeism. But this does not necessarily imply that such persons have conditions which will progressively deteriorate if they are involved in lighter work.

The plaintiff had, following August 1987, been placed in a position where, on that doctor's evidence, he would be unlikely to have serious trouble. Dr Watson, in his report, said there was no evidence of progression and that the plaintiff would likely have worked up to retirement. In his oral evidence however the doctor conceded that there was a real chance that, in his old age, the plaintiff would have incurred difficulties with his work, and that is of course the finding His Honour made.

Consistent with that evidence His Honour did not hold that the plaintiff's inability to work in the future to be referrable only to the accident in question. In reducing it to age 59 it can be said to refer to the latter part of his working life, the age the doctor spoke of. This discounting was not insignificant, and it must be recalled that His Honour also concluded that the plaintiff was likely to continue for as long as he possibly could. There was in our view no evidence which suggested the plaintiff's condition was worsening, such as to compel a conclusion that his working life would be further shortened. In these circumstances this ground fails.

In light of our conclusion just expressed, any further reduction for the general vicissitudes of life could only be small. The factors which are encompassed in the phrase are, upon examination of the cases, generally early death, illness or unemployment (see Bresatz v. Przibilia (1962) 108 CLR 541; Cullen v. Trappell (1980) 146 CLR 1) against which ought be balanced more favourable possibilities. This was not a case where such questions were left entirely at large. The fact that His Honour did not say regard was had to other possible contingencies is not of itself conclusive as to whether the award, in consequence, is demonstrably too high. We consider, given that His Honour had already discounted some 6 years of the balance of the plaintiff's working life no further discounting is warranted.

The question of alternative employment may be disposed of shortly. The caretaking positions held by the plaintiff in the period after the accident were prior to the amputation of his leg and there was nothing to suggest that they would be available to him in his present condition nor that they were productive of income. The possibility that the plaintiff might convert his hobby as a gunsmith to a business, producing any substantial income out of profit is not, as His Honour found, realistic. The plaintiff has only some basic qualifications in this area. In the past he earned sufficient from this exercise only to pay for further tools. The plaintiff would have to overcome what has been described as considerable obstacles which would require him hiring other staff to undertake the clerical work which he was not able to do himself. It could not be suggested that there was any real likelihood of any substantial income being earned.

With respect to past gratuitous care, His Honour allowed for the care provided by the plaintiff's partner at 10 hours per week over a 5½ year period from the date of the accident, together with interest and then rounded the figure down to $30,000. The question as to whether interest ought to be allowed on this sum was not the subject of submission. It was submitted that it could be shown that 10 hours would not always have been provided on a weekly basis but it is clear that His Honour was using this as a guide only. In the course of 5½ years, over which the plaintiff had some 10 operations and during which there was evidence that he was rarely off crutches, it is clear that at times he would likely be provided with a great deal more assistance and at other times much less. However, there was a period of either 12 or 18 months when the plaintiff was caretaking on properties in between the operations referred to and in the absence of his partner. This was not taken into account by His Honour in allowing for care over a 5½ year period. The total award was however some $669,086.17 and an adjustment to take account of this would not substantially alter that award. For the reasons expressed in Elford v. FAI General Insurance Co Limited (1993) QLR 30 (Judgment 1 April 1992) the award should not be corrected.

The appeal must be dismissed. The appellant will be ordered to pay the costs of the appeal.