Tomasic v Mount Isa Mines Ltd

[1995] QCA 307

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 202 of 1994
[V. Tomasic v. Mt Isa Mines Ltd]
BETWEEN

VLADIMIR TOMASIC
(Plaintiff)

Respondent

AND

MOUNT ISA MINES LIMITED
(Defendant)

Appellant

Fitzgerald P. Davies J.A.

Shepherdson J.

Judgment delivered 14/07/1995

Separate reasons for judgment; all concurring as to the order made

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS:  DAMAGES - PERSONAL INJURIES - Appeal Against Quantum -

challenged component for impairment of earning capacity (past economic loss -

$230,088.00, Interest - $88,789.00, future economic loss - $292,735.00)

Counsel:	Mr I. Callinan QC. and Traves for the appellant Mr W. Sofronoff QC. and T. North for the respondent
Solicitors:	Thynne & Macartney for the appellant Conroy & Conroy for the respondent
Hearing date:	31/05/95
IN THE COURT OF APPEAL	[1995] QCA 307
SUPREME COURT OF QUEENSLAND	Appeal No. 202 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. Shepherdson J.

[Tomasic v. Mount Isa Mines]

BETWEEN:

VLADIMIR TOMASIC

(Plaintiff) Respondent

AND:

MOUNT ISA MINES LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 14/07/1995

The circumstances giving rise to this appeal are set out in the reasons for judgment of Shepherdson J.

In my opinion, the respondent was extremely fortunate in the award which he received; a discount

of his past economic loss, and a greater discount of his future economic loss, would ordinarily be

expected on the evidence given at trial. However, the position in relation to the future economic loss

was ameliorated by a significant error in the appellant’s favour made by the trial judge and, all in all,

I do not think that this Court should interfere.

I agree that the appeal should be dismissed with costs to be taxed.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 202 of 1994

Brisbane

Before Fitzgerald P.
Davies J.A.
Shepherdson J.

[Mount Isa Mines Ltd. v. Tomasic]

BETWEEN:

VLADIMIR TOMASIC

(Plaintiff) Respondent

AND:

MOUNT ISA MINES LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 14th day of July 1995

I have read the reasons of the President and Shepherdson J.
Like the President I think that the total award of damages was
generous even accepting, as I do, that the learned trial Judge was

entitled, as she did, to take a view of the evidence most

favourable to the respondent.

However the error identified in the reasons of Shepherdson J. which resulted, on the learned trial Judge's findings, in an award which was $82,000 less than her Honour appears to have intended, had the result, in my view, that the award, though high, is not one which I would be prepared to conclude was so high as to be outside the appropriate range.

I therefore also agree that the appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 202 of 1994
BeforeFitzgerald P.

Davies J.A.

Shepherdson J.

[V. Tomasic v. Mt Isa Mines Ltd]

BETWEEN

VLADIMIR TOMASIC
(Plaintiff)

Respondent

AND

MOUNT ISA MINES LIMITED
(Defendant)

Appellant

JUDGMENT - SHEPHERDSON J.

Judgment Delivered 14 July 1995

The respondent sued the appellant for damages for personal injury suffered while working

for the defendant on 24 October 1985. On 23 September 1994, after a trial of the action, the

learned trial Judge gave judgment for the respondent against the appellant for $633,526.97. She

assessed total damages at $687,156.92 and from that sum deducted a Workers' Compensation

Board charge of $53,629.95.

The damages assessed included the following components:-

Past economic loss	$230,088.00
Interest thereon	88,789.00
Future economic loss	292,735.00

The appellant has challenged each of these components and to succeed must show that the
particular component was plainly an overestimate and that the substitution of a figure which this

court thinks proper for that component will substantially alter the total award. If this court

considers there is nothing more than a wrong estimate of one component which had no substantial

effect on the total this court will dismiss the appeal (Elford v. FAI General Insurance Co Ltd (1994)

1 QdR 258).

1.        Past Economic Loss

The above was the amount awarded for impairment of the respondent's earning capacity to

the date of judgment. The trial was on 9 and 10 June 1994. The respondent was 43 years old at

the time of injury and aged 51 at trial. He suffered injury to his lumbar spine at L4-5 resulting in

considerable pain and loss of movement not removed by medical intervention and physiotherapy.

Eventually, following a myelogram the plaintiff underwent a laminectomy which as the learned

trial Judge found was not entirely successful and he continued to suffer pain and a lack of feeling

in his legs. In June 1991 he had a second laminectomy. His employment history was principally

that of a miner. He had been a miner in Yugoslavia before coming to Australia in 1970. In

Yugoslavia he received training in a trade school and a technical college. He came to Mt Isa in

1971 and in 1973 began working underground as a labourer with the appellant. By 1979 he had

been promoted to shift boss (a supervisor) which position he retained until he resigned in 1984. He

then attempted to operate a small business and this attempt was made to accommodate his wife's

then need for company and support at night. The learned trial Judge found that his preference was

to continue working in the mine and that his wife took it upon herself to approach the appellant for

a position for her husband. On 2 September 1985, he returned to work with the appellant as a

labourer in the lead smelter. When injured on 24 October 1985 he was working there as a

tradesman's assistant.

Despite the disabilities from the injury, the respondent continued to attempt to retain some

form of employment and in this was assisted by the appellant whose policy was to assist injured

workers as far as possible. In April 1986 he commenced work as a gardener for the appellant but found difficulty with some tasks; he then worked as an attendant in the change house and

undertook some other duties in the process of attempts to find him suitable light work. After a

period when no such work was available, he resumed work in May 1987 at the milling research

station and in February 1990 obtained a staff position as a foreman in the Minerals Processing and

Research Section. This required only office work but the pain in his back continued to cause him

difficulty until the second laminectomy was performed. While recovering from surgery he was

advised he had been retrenched - this retrenchment was unrelated to the accident injury. The

learned trial Judge found that since that time the respondent had undertaken a rehabilitation

program and she considered he had made every reasonable effort to obtain employment. She

found that whilst the second laminectomy had succeeded to the extent that it had reduced the level

of lower back pain and removed the symptoms to the legs, he still suffered pain which was easily

caused by sitting or standing for long periods, twisting his back, lifting heavy objects and that he was

unable to walk at a normal pace.

One issue at the trial was whether assurances were given to either the respondent or his wife

about the respondent returning to underground work and to the position of supervisor. The

learned trial Judge found it likely that the then Manager of the Personnel Division did say that the

respondent could reapply after a few months for a position in the mine and that there would

"probably" be no difficulty in his obtaining a position. The learned trial Judge then considered the

question as to whether or not the respondent was likely to have been re-employed in his former

position as shift boss or supervisor.

She considered the evidence and then said:-

"The issue of both past and future economic loss requires me to assess the chance of the plaintiff attaining a position underground and then as a supervisor or in some other capacity (as to the approach see Malec v. J.C. Hutton Pty Ltd (1990) 169 CLR 638, 643).

The prospect of the plaintiff obtaining work as a miner underground was very high, almost certain. Mr Beard [the then Manager of the Personnel Division] gave evidence that a good worker underground (and there was no suggestion that the plaintiff was otherwise) had prospects of becoming a contract miner and that contract miners earned at least as much as their supervisor and often more. There was no specific evidence as to when these positions become available but given the scale of the defendant's operation and the availability of supervisory positions, I infer that these positions also became available reasonably regularly. The plaintiff has claimed that he would have obtained either this or a supervisor's position by 1 July 1986 and this seems to me a reasonable approach. For the period from the fortnight ended 10 November 1985 to 1 July 1986 a claim based on a trades assistant's average net weekly income of $577.19 is made. Whilst the figure claimed of $13,145.38 is slightly less than an exact calculation I have allowed that figure. For the period from 1 July 1986 to date of trial I have accepted that there was a very good chance that the plaintiff would have become a contract worker. The chance of him obtaining the position of shift boss prior to 1988 was not good, but thereafter I consider his experience would influence a promotion. I assess it at eighty percent and no doubt it would increase as he continued to carry out his duties well. In these circumstances I have allowed for the balance of earnings lost to date of trial on the basis of what a supervisor or shift boss would have earned by reference to the plaintiff's Schedule B and adding to it another 15 weeks to date of judgment at $886.84 net per week. Since he would likely in any event have earned the same, or more, as a contract worker I have not reduced that sum. The total so far reflected is, rounded off, $331,000. From that must be deducted net earnings received as shown in Schedule E ($100,911.38)."

The balance remaining was $230,088 which was the component for past economic loss as

it was called. The learned trial Judge then went on to deal with interest and I shall return to that

later.

The chief criticism of appellant's counsel is that the learned trial Judge erred in making no

discount. Counsel submitted that the evidence did not go so far as to support certain of Her

Honour's conclusions. In particular, he said there was no evidence from the respondent that he

intended or had even contemplated becoming a contract miner and that in his previous

employment by the appellant he had never been a contract miner; the respondent had apparently

progressed from being a miner to a supervisor and there was no evidence, he submitted to suggest

that, as he got older, he would have had any inclination to again become a miner; that the evidence

concerning contract miners did not go to any details of earnings although he conceded there was

evidence that people working underground on contract generally earned more than their

supervisors and although the learned trial Judge found the prospect of the respondent obtaining the

position of shift boss prior to 1988 was not good she found that thereafter he had an 80% chance

of being so employed. He argued that the learned trial Judge, in assessing the value of impairment

of earning capacity from 1 July 1986 to date of judgment, was in effect over-generous in basing that loss on what a shift boss or supervisor would have earned despite her finding that the respondent's

prospects of obtaining a position as shift boss prior to 1988 were not good.

It appears from the learned trial Judge's reasons that she rejected discounting the component

for impairment of earning capacity to date of judgment because the respondent could have

increased his income by working as a contract miner. Counsel's strongest point is that the

respondent never worked as a contract miner in all the years for which he did work for the

appellant. However, it must be remembered that the learned trial Judge was assessing the damages

for impairment of earning capacity and as Her Honour found there was a very good chance that

the respondent, in the period from 1 July 1986 to date of trial, would have become a contract

worker. One should not lose sight of the fact that the respondent was a man of considerable

experience as a miner. A contract miner can earn more than the supervisor or shift boss and the

respondent was a man who, on his recommencing work with the appellant, was obviously keen to

return to the earning level which he had enjoyed before leaving the appellant's employ in 1984.

To do this might well have required him to work as a contract miner.

In my view the learned trial Judge was justified in not discounting the component for past

economic loss. If one assumes for the purpose of debate that she should have discounted by the

20% figure which she applied when assessing the future economic loss component, then the

component for past economic loss would reduce to $184,071.

I have performed this exercise, without conceding that the 20% deduction should have been

made, so that its effect can be considered against what happened when the learned trial Judge

assessed the component for future economic loss to which I now turn.

2.        Future Economic Loss

The learned trial Judge said this:-

"He was a fit man and there was no evidence that would suggest that he would retire earlier than the usual retirement age of sixty-five. Something would of course need to be allowed for the prospect that that might be so. If the plaintiff had remained in work which regularly required him to undertake heavy labouring tasks, such as contract miner, then one might need to discount earlier for the vicissitudes of such work. However it seems to me that in this period the plaintiff was much more likely to have achieved his supervisory position and indeed that the chances of that would by this time have been very good. The plaintiff despite efforts of rehabilitation is significantly impaired in his ability to obtain employment. While some positions such as office work or selling in small business might be possible the fact of his injury and his inability to sit or stand for any significant period realistically is likely to disbar him from such employment. Further, such opportunities are likely to be less in a city such as Mount Isa. There remains a prospect that he might conduct his own business but it could not be put any higher. Taking all these matters into account I have allowed a discounting factor of twenty percent."

She then in calculating the plaintiff's future economic loss purported to apply the present

weekly wage for a shift boss ($886 per week) on the 5% table for 14 years as she said "to age 65".

This total she calculated at $365,918 and then after discounting at 20% arrived at $292,735. The

difficulty is that the multiplier applied to reach the figure of $365,918 was that appropriate to 10

years and not 14 years. Had the correct multiplier been applied the total should have been

$468,694. When that amount is discounted by 20% the figure of $374,956 results. This sum is

about $82,000 higher than the amount actually awarded for this component.

There has been no cross appeal by the respondent. The error in the component for future

impairment of earning capacity favours the appellant. If the assumed 20% discount in the

component for past impairment of earning capacity were adopted, and set off against the above

$82,000 the respondent is still disadvantaged.

I have concluded that the amounts awarded for components for past and future impairment

of earning capacity are such that this court should not interfere with them.

3.        Interest

This leaves the matter of $88,789 interest on the component for past impairment of earning

capacity.

Counsel has argued that because of unexplained delays in bringing this action to trial the

assessment of interest was too high.

The learned trial Judge for the purpose of calculating interest on this component deducted

from the $230,088 the sum of $45,110.88 being the total of Workers' Compensation Board weekly

compensation and a sum paid for disability settlement. She went on:-

"As to the period for which interest is to be allowed generally, I am conscious of the fact that there have been delays in prosecuting the action, it is said by the plaintiff's former legal representatives. The defendant has however had the use of the money. I would then be inclined to allow interest for the whole period. An interest rate of six percent per annum for nearly 9 years (and ignoring earlier inflationary rates) would likely overcompensate for notional recent earnings lost and I have therefore shortened the period to eight years [total $88,789]."

I am not persuaded that the learned trial Judge erred in the exercise of her discretion in

awarding interest on this component.

In summary then the appellant has failed to satisfy me that the damages assessed are a wholly

erroneous estimate such as to justify this court interfering with the award.

I would dismiss the appeal with costs to be taxed.