Thomas Borthwick and Sons (Australia) Pty Ltd v Viti
[1998] QCA 406
•1/12/1998
IN THE COURT OF APPEAL [1998] QCA 406 SUPREME COURT OF QUEENSLAND
Appeal No. 5484 of 1998
Brisbane
[Thomas Borthwick & Sons v Viti]
BETWEEN:
THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD
(ACN 006 525 104)
(Defendant) Appellant
AND:
RICKARDO JOSEPH VITI
(Plaintiff) Respondent
McPherson JA
Williams JMuir J
Judgment delivered 1 December 1998.
Judgment of the Court.
APPEAL DISMISSED WITH COSTS
CATCHWORDS:
DAMAGES - quantum - future economic loss - whether finding of unfitness for heavy manual work inconsistent with expert medical evidence - whether proper allowance made for residual earning capacity - no evidence of suitable work being readily available - award for future economic loss neither manifestly excessive nor against the weight of evidence.
Counsel:
Mr K Fleming QC for the appellant. Mr D McMeekin for the respondent.
Solicitors:
Thompson Hannan for the appellant. Macrossan Amiet for the respondent.
Hearing Date: 11 November 1998. IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5484 of 1998
Brisbane
Before McPherson JA
Williams J
Muir J[Thomas Borthwick & Sons v Viti]
BETWEEN:
THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD
(ACN 006 525 104)
(Defendant) Appellant
AND:
RICKARDO JOSEPH VITI
(Plaintiff) Respondent
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 1 December 1998
After a trial in the Supreme Court at Mackay the respondent recovered damages totalling
$284,841.97 clear of the refund to WorkCover Queensland. Liability in the master-servant
relationship had been admitted, and the only issue for the trial judge was quantum. The only item
in the calculation of quantum attacked on the hearing of the appeal was the amount of $170,000 for
future economic loss. It was contended that that award was against the evidence and the weight
of evidence.
The respondent was born on 13 October 1967 and injured on 4 October 1994. He had
left school at age 16, having completed year 10 and had worked as a meat worker for virtually the
whole of his working life. He is of South Sea Island origin.
The learned trial judge accepted that the respondent had sustained an injury to the spine in
the nature of a lesion to the L4/5 disc and the L5/S1 disc. His Honour also found that “there was
some vulnerability at the spine at the time this injury was sustained”. The respondent attempted to
resume work after the incident in question but such activity caused a recurrence of symptoms which
ultimately led to his ceasing work.
The critical passages in the judgment for present purposes are the following:
“Having heard and seen him, I am inclined to think that at least some of the differences between the specialists in this case, at least so far as their understanding of the history of matters, is explicable, as has been suggested by Dr White, by his lack of ability as a communicator. He is a man of few words and tends not to be particularly forthcoming in terms of description when asked questions.
...
All of the orthopaedic surgeons who gave evidence before me consider the plaintiff has a residual earning capacity and I think it is plain that he does. He is not capable of returning to work of a heavy nature such as the work he was doing at the meat works. I think that the probabilities are that given his lack of education and experience, that he would have been likely to have engaged in the course of a normal working life, primarily in this type of work. However, there is a wide range of occupations open to him and full allowance has to be made for the residual earning capacity which he has.
At the same time, care needs to be taken to ensure that this is not overestimated given that, I think, with his lack of qualifications, his relatively limited education and experience outside of fairly heavy work, there may be some difficulties in translating that earning capacity into income. He has attempted work since ceasing work and has earned some modest income. Some of these tasks were, he says and I accept, beyond him. He has attended a rehabilitation service and he has undertaken a boiler making course. He has sought work in a number of fields, many of which I think are probably within his capacity. He has not been successful to date in obtaining anything in the nature of permanent, or for that matter, work for any significant period. However, I think that in the course of time he will be likely to find suitable work, at least on an intermittent basis, if not on a permanent basis. It cannot, however, be gainsaid that he has nonetheless had a significant reduction of his earning capacities and a full allowance has to be made for this in the assessment of his damages.
I accept that the disability he has limits his activities in a general way. The orthopaedic surgeons who have provided reports have expressed his disability in percentage terms variously, in some cases in almost minimal terms. However, I do not find this particularly helpful in terms of trying to reach conclusions as to the impact of a disability on him in his particular circumstances, and prefer to act on his evidence as to what he says is the impact upon him of his back disability. ”
The submissions of counsel for the appellant can be broadly summarised as follows:
(i) The findings of the learned trial judge, and statements in the passages quoted above, were inconsistent with the opinion of all the specialist
doctors;
(ii) Inadequate allowance has been made for the respondent’s residual earning capacity.
Dr White was an orthopaedic surgeon called as part of the respondent’s case. In his report
he expressed the opinion that the respondent was suffering a 10% permanent impairment of the
body as a whole as a consequence of the condition of his lumbar spine. He said that he would
regard the respondent as “permanently unfit for work involving heavy physical labour, prolonged
standing, prolonged sitting, lifting or repetitive bending”. However, in his view the respondent
“would be suitable for lighter semi-sedentary duties having some degree of freedom to sit, stand or
move around as dictated by any discomfort that he may be feeling from time to time”.
In oral evidence Dr White indicated that, but for the incident establishing liability, the
respondent should have been able to stay in his job at the meat works until normal retirement age.
In the light of his current condition Dr White’s oral evidence was that driving unsprung or stiffly sprung machinery was inappropriate. Under cross-examination he confirmed that the respondent
was capable of undertaking “semi-sedentary - light-sedentary employment”.
It should be noted that the appellant did not lead evidence at the trial of any particular job
in or about the Mackay region which was suitable for the respondent and which was readily
available to him. That is of some relevance in the light of the reasoning of the Western Australian
Full Court in Thomas v O’Shea (1989) Aust Torts R 80-251 at p.68,701.
It seems clear that the learned trial judge made findings substantially in accordance with the
opinion of Dr White.
Counsel for the appellant concentrated in his submissions on evidence given by Dr
Macfarlane and Dr Boys, each called by the appellant. In his reports Dr Macfarlane expressed the
opinion that the respondent had recovered from any injury and no abnormality could be detected
either clinically or radiologically. In his written reports he spoke of a disability of between 2½% and
5% of the whole body at most. In his last report he indicated the respondent might not be able to
continue working as a slaughterman, but he considered he could work as a process worker,
gateman and the like. In the course of oral evidence Dr Macfarlane expressed the opinion that the
respondent “could do reasonable manual type work”.
Dr Boys in his report assessed that the respondent had “a 1 or 2% impairment of bodily
function”. There he said that the respondent’s current condition did not preclude all employment;
however, the heavy repetitive bending and lifting involved would prevent him working as a
slaughterman. He concluded the report by saying “vocational redirection would appear to be
desirable”.
| 12 | Notwithstanding the submissions of counsel for the appellant, there does not appear to be any inconsistency between the findings made by the learned trial judge and the weight of the medical |
evidence. It may well be that the findings reflect more accurately the opinion and evidence of Dr
White, but it is clear that each of the three orthopaedic specialists considered that the respondent
was unfit for heavy manual work, particularly of a type which involved bending. Clearly the learned
trial judge was correct in concluding that the respondent was no longer able to work at the meat
works. The appellant has not been able to point to any particular job which the respondent could
immediately take up.
The evidence disclosed that a worker at the meat works in a comparable position to that
previously occupied by the respondent would now be earning in the range $560 to $640 nett per
week. In assessing the quantum of future economic loss the learned trial judge did not specify the
period used in its calculation. However, as the respondent was aged 30 at trial, he had a future
working life of 25-30 years. Given the assessment of $170,000 for future economic loss (and using
the 5% discount table) that reflects a loss of $207 per week over a 30 year period or $225 per
week over a 25 year period. In other words the diminution in the respondent’s earning capacity
was of the order of $207 to $225 per week, which in practical terms means that the learned trial
judge recognised that his current actual earning capacity was in the range of $350 to $425 per
week.
It is also clear on the evidence, and this conforms with the findings made by the learned trial
judge, that some retraining will be necessary before the respondent is able to earn in the future at
his optimum level. For the period of that retraining, and until an appropriate job becomes available,
he will remain totally unemployable. That must impact upon the assessment of future economic loss.
Given all of those considerations it cannot be said either that the award of $170,000 was manifestly excessive, or that that award was against the evidence and the weight of the evidence.
In the circumstances the appeal should be dismissed with costs.
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