SUPREME COURT OF QUEENSLAND
CITATION:
Towers v Hevilift Ltd (No 2) [2020] QSC 77
PARTIES:
BRUCE TOWERS
(Plaintiff)
v
HEVILIFT LIMITED
(Defendant)
FILE NO/S:
SC 180 of 2009
DIVISION:
Trial
PROCEEDING:
Trial
ORIGINATING COURT: Supreme Court at Cairns
DELIVERED ON:
15 April 2020
DELIVERED AT:
Cairns
HEARING DATES:
24, 26 and 27 February 2020
JUDGE:
Henry J
ORDERS:
1. The defendant pay the plaintiff damages in the sum of $5,652,072.74
2. The parties will be heard as to costs at 10.00 am on 24 April 2020, by audio or audio-visual link, if the parties have not by then informed the Registry that costs are agreed.
CATCHWORDS:
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff was the pilot in a helicopter crash caused by the negligence of the defendant – where liability determined at previous trial – where quantum in issue – where dispute as to plaintiff’s life expectancy – whether evidence of expert medical witness based on published actuarial evidence establishes life expectancy – whether appropriate to take into account further deduction to life expectancy on the basis of the medical expert’s opinion about individual plaintiff’s conditions
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff was competent but not exceptional helicopter pilot – where plaintiff was working as a helicopter pilot in the PNG Highlands – whether plaintiff would have continued to work until 70 – whether plaintiff would have advanced in his career – whether plaintiff would have continued to work with the defendant or returned home to Australia
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGE – where plaintiff claims damages for household maintenance costs – where plaintiff claims damages for mowing and gardening – where evidence consists of two tax invoices and minimal oral evidence – where plaintiff claims expenses for household cleaning – where plaintiff’s evidence of cleaning amounts to no more than an estimate – where no documentary evidence of cleaning - whether conservative approach should be adopted
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – OTHER MATTERS – where defendant contends there should be a discount of 10 per cent on damages awarded for recurrent future expenses for vicissitudes – whether 10 per cent appropriate figure in the context of grave injuries and risk of undercompensation
Bevan v Wagner Industrial Services Pty Ltd [2018] 2 Qd R 542; [2017] QCA 246, cited
Black v Lipovac (1998) 217 ALR 386, cited
Bresatz v Przibilla (1962) 108 CLR 541, considered
Gerrard v Royal Infirmary of Edinburgh NHS Trust 2005 1 SC 192, applied
Golden Eagle Trading v Zhang (2007) 229 CLR 498, cited
Hevilift Ltd v Towers [2018] QCA 89, cited
Jones v Dunkel (1959) 101 CLR 298, applied
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, cited
Minchin v Public Curator of Queensland [1965] ALR…
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- AGLC
- Towers v Hevilift Ltd (No 2) [2020] QSC 77
- Case
- [2020] QSC 77
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the evidence presented regarding the plaintiff's life expectancy, including expert medical testimony based on published actuarial data. The court found that the data presented showed a seemingly inconsistent trend in standardised mortality ratios (SMRs) between different age brackets and injury categories, which required explanation. Despite acknowledging the apparent anomaly, the court relied on the actuarial data to determine the plaintiff's life expectancy, albeit with adjustments for individual conditions. The court also evaluated the plaintiff's potential career trajectory, considering his status as a competent but not exceptional pilot, and assessed whether he would have continued his work until the age of 70 or advanced further in his career.
Additionally, the court reviewed the plaintiff's claims for household maintenance costs, mowing and gardening expenses, and household cleaning. The court adopted a conservative approach due to the minimal and largely uncorroborated evidence provided, resulting in reduced awards for these items. The court also deliberated on the defendant's contention for a 10 per cent discount on damages for recurrent future expenses due to vicissitudes, ultimately deciding that this figure was not appropriate given the severity of the plaintiff's injuries and the risk of undercompensation.
The court's final orders included the payment of $5,652,072.74 to the plaintiff as damages, with further directions for the parties to address the issue of costs.
Orders
Orders of the court
1. The defendant pay the plaintiff damages in the sum of $5,652,072.74
2. The parties will be heard as to costs at 10.00 am on 24 April 2020, by audio or audio-visual link, if the parties have not by then informed the Registry that costs are agreed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Cross-examination on the seeming anomaly that central estimate SMRs in the C1-C4 ABC category are lower than the C5-C8 ABC category for the aforementioned age brackets, included the following exchanges:“That data is entirely inconsistent with your experience – your clinical experience that we discussed before in the De Vivo case that C5 to C8 had a lesser risk of dying than a C1 to C4 tetraplegia?---So you’re talking about the central estimate or the number of deaths.The central estimate?---The central estimate. Yes, and thank you for pointing that out in the – in the spreadsheets that you sent to me overnight and I agree that it appears to be inconsistent, and I’ve thought what would be the reason and I can’t say that I can give you a terrific answer except to point out that we’re dealing with ratios, not numbers and not percentages. So if the ratio – the central estimate changes in a way that you would think would be counterintuitive. I would accept that, but nevertheless we’re dealing with a ratio and it could be that there is a higher or lower number of deaths that have occurred in the past in that age group because of the point you were making before. …So if we could just work through the central estimates. For C1 to C4, 20 to 29, central estimate’s 5.4. C5 to C8 it’s 6.4, which is again an – it appears to be an anomaly in the context of your clinical experience. The next one is 30 to 39, 8.3 for the central estimate for C1 to C4 compared to 4.8 for C5 to C8. That would be consistent with your clinical experience and research wouldn’t it? … Now, that’s consistent with the fact that the risk of a C1 to C4 dying earlier is going to be higher than a C5 to C8 dying earlier, isn’t it?---Just pose that to me – question again. You are comparing the C1 to C4 to the C5 to C8, central estimate of standardised mortality ratio at aged 30 to 39. Am I correct in---Yes?--- ---what you were just saying? And that does suggest – well, what that says is a standardised mortality ratio is higher in the C1 to C4 than the C5 to C8. That’s correct. …Then 40 to 49 is – 9 is the central estimate for C1 to C4, and 5.3 is the central estimate of C5 to C8?---Yes.At 50 to 59 it’s 4 for C1 to C4 and 5.4 for C5 to C8?---That’s correct.That’s a little surprising that the C5 to C8 has a higher [central estimate] in that range of 50 to 59; you agree?--- …[Y]es, well, I do see the apparent anomaly, yes.Yes?---I would accept that there is an apparent – something that requires an explanation. Yes, I accept that.And you can’t give that explanation because (a) you’re not a statistician and (b) you didn’t create the data?---Well, that’s correct.Can I suggest---?---But I did consider some possibilities and because it’s a ratio it could be consistent with the fact that death[s] are occurring earlier than later – earlier or later in that particular bracket of patients for reasons we don’t understand, but I do accept that there is an apparent anomaly---Can I suggest---?--- ---and the anomaly – the anomaly is probably best understood in terms of the ratio. Standardised mortality ratio reduces with age in all patients and that would initially appear to be counterintuitive, but it does so because the natural death rate in the population catches up with the death due to the particular condition of paraplegia. So I just exhibit some caution in drawing conclusions from ratios rather than raw data.Just---?---You started this argument by looking at survivorship curves which is raw data. We’re now delving into ratios of one divided by another and you can get some unusual mathematical results.The point about the ageing population, though, is really counter to what the research has found. If you look at the bottom of page 808 [of the Middleton article] in the four lines down in the text it says: A consistent trend of reduction in SMR with advancing age was evident?---Which is what you would expect.Yes?---It’s expected because it’s a ratio because the – when you’re a young person there’s very little reason for you to have – a young person’s mortality is lower than an older person’s mortality, and the extra mortality with advanced age with a perhaps continuing added mortality from your spinal cord injury you expect the ratio to go down. …Well, if – on your calculation of life expectancy that appears in exhibit 57 it’s the reality, isn’t it, that Mr Towers’ life expectancy as a C5-8 tetraplegic is worse than a C1 to C5 tetraplegic based upon your calculation?---That is what the calculations say.Yeah, and it would be significantly worse?---By some years, yes.And that just does not make sense, does it, that he would have a worse life expectancy than a C1 to C5 tetraplegic?---I honestly don’t know. On the face of it it does seem unusual, but I go back to my point about we’re dealing with life expectancy calculated on standardised mortality ratios and an explanation would be that most people who were going to have died from their C1 to C4 injury have already died. So I do accept the point that there is an apparent discrepancy … that requires some explanation. One observation is simply to say that the actuarial data has been collated by this, has been presented like this and that’s the way it’s meant to be used and you could argue that the actuarial consultants who collected this data, and that’s how it was performed, are wrong, or you could simply use it. There are other potential explanations that I cannot fully grasp, but one is that people who are already going to die in the more high risk age groups have already done so …Can I suggest to you there’s another explanation and that goes back to the purpose of the data is that it focussed on admissions to spinal cord injury units and what it’s designed to do is to assist in the calculation of a life expectancy soon after the injury so that insurers or families or whoever can plan for the future. That’s what this data of Middleton is for?---I don’t believe so, no.I also gave---?---Because the data, because the data involves follow-up from – all spinal injury units keep registries of deaths and this data is calculated based on death occurring at any time. So whatever the reason that it’s calculated for, it’s calculated from deaths that occur at all time points.”[20] (emphasis added)[20]T2-30 L10 – T2-33 L46.