Vouros v Hungry Jacks Pty Ltd

[1997] QCA 494

HUNGRY JACKS PTY LTD	Appellant
BRISBANE ..DATE 05/12/97
051297 D.1 T23/JT18 M/T COA287/97

COURT OF APPEAL

[1997] QCA 494

DAVIES JA DOWSETT J HELMAN J

GEORGE VOUROS	Respondent
and

JUDGMENT 27 August 1996 in the Brisbane District Court in an action brought by the appellant against the respondent, his former employer, for $200,000 damages for negligence and, or in the alternative, breach of statutory duty and, or in the further alternative, for breach of the contract of employment. The respondent admitted its liability to compensate the appellant, leaving the quantum of his damages as the only issue to be determined by the learned trial judge. Judgment was entered for $52,731.77: damages were assessed at $78,646.21 and the refund to the Workers' Compensation Board was $25,914.44. The respondent was ordered to pay the appellant's costs.

There was no challenge before us to the primary facts found by her Honour. The appeal concerned her Honour's assessment of three items of general damages. The three components of the appellant's damages which were challenged as manifestly inadequate were $25,000 with interest of $1,104 for pain and suffering and loss of amenities, $16,380 with interest of $267 for impairment of past earning capacity, and $10,000 for impairment of future earning capacity.

The appellant, who was born on 28 January 1951, was injured on 26 December 1991 when he slipped and fell and slid forward hitting his right knee on a steel safe in an office at the respondent's premises. The appellant felt severe pain in his knee. Despite treatment with ice and pain- killers the pain persisted. On 7 August 1992 Dr Mark Byrne, orthopaedic surgeon, arthroscoped the knee and excised a

2   JUDGMENT

051297 D.1 T23/JT18 M/T COA287/97
calcified haematoma from it. X-rays showed changes
suggestive of degeneration in the knee, but before the
incident there had been no symptoms. No organic cause has
been discovered for the pain the appellant has continued to
suffer, but her Honour found that the fact that the doctors
were unable to find the cause of the pain did not mean that
it was not experienced. She found that there was a
permanent disability of the leg attributable to the fall of
ten per cent. Her Honour based that finding on the evidence
of Dr John Pentis, orthopaedic surgeon, which she accepted
in preference to the evidence of other orthopaedic surgeons
where there was a conflict.

Dr Pentis agreed in evidence that there was pre-existing degeneration shown in x-rays which indicated that the degenerative problems were not marked ones but were merely changes suggestive of degeneration. He reported to Dr Bernard Gerber, a general practitioner consulted by the appellant, that he had looked at the x-rays and there were degenerative changes in the joints. Dr Pentis said:

"If you have had major injury to that cartilage of the knee, even though it may not be visibly arthroscopically or on x-ray, you may be susceptible to it wearing further with time. It can be what you call a microscopic damage, it other words it is not obvious initially but it is weakened and as you continue stressing it, it will weaken further."

Dr Pentis also said:

"We're assuming that if you have had a reasonable enough knock to cause a haematoma and that calcifies eventually, that you have probably bruised the articular surface. When I say 'bruised' there may have been either a fissure or even just a soft tissue damage to the cartilage at the back of the patella - not enough to cause a fissure but enough to cause some damage which may with time degenerate further. If you

3   JUDGMENT

051297 D.1 T23/JT18 M/T COA287/97

have already got some degeneration there, if you have a hard enough bump to that region, it will cause that area probably to degenerate further."

Dr Pentis said further:

"The theory is that if you have a good enough blow and you damage the cartilage to some extent or with time it then wears - wearing means either fibrilisation or tearing - and you get loss of height of the cartilage and fissuring of the cartilage, that is what you get your pain from in the knee."

Dr Pentis disagreed with the opinions of Drs John Morris and Peter Boys, orthopaedic surgeons, that the symptoms were the result of pre-existing degeneration because he said:

"... he has probably damaged his chondral surface if he had a good enough whack of the patella. That is what normally happens... If it is bad enough to require an operation it means there is usually a reasonably severe blow and that sort of blow would give problems with the back of your kneecap."

Dr Pentis was asked:

"If he is still genuinely suffering from pain in the knee it must be as a result of what was there before, what I will call pre-existing degeneration, unless there is this microscopic aspect you refer to?"

He replied:

"Yes, as I said, you can't really say. You would assume if you had a good whack that you will get some problems from it and if he hasn't complained of problems before then you will have to assume a lot of it is coming from the injury that he sustained. It is possible, as I said, to have microscopic damage to the cartilage which may not show any gross problems initially but with time may cause further problems.

You just don't know what is going to rear its head. As I said before in evidence, if you run marathons or jumped up and down as an exercise constantly you would get problems at a sooner rate".

Dr Pentis was asked whether, if there were no symptoms prior to the fall, when degenerative changes might have become

4   JUDGMENT

051297 T24/SJW M/T COA287/97

symptomatic, and he said if he examined everyone at the appellant's age, he might find that thirty per cent. of people have similar sorts of degenerative changes but they are not all complaining of problems with their knee; they might have no problems, they might not get any problems, they might get problems in about twenty or ten years, or if they bump their knee, they might get problems. He later expressed the view that it takes time for the ordinary process of degeneration and usually takes ten years to see major problems.

Dr Pentis expressed the view that there are certain activities that would aggravate the condition of the appellant's knee and they were activities where one kneels or squats on the knee. Other activities that might further aggravate it were those in which the appellant might do a lot of cutting on the knee - in other words, change direction. That puts the pressure on the patella or femoral joint and will cause further problems in the area.

Dr Pentis was of the view that the appellant had a ten to fifteen per cent. disability, two-thirds of which was the result of the fall, and it was on that evidence that her Honour based her finding that there was a permanent disability of the leg attributable to the fall of ten per cent.

At the time of the fall the appellant was employed as an
assistant manager. He remained in employment until
1 September 1993 although he was absent from time to time as

5   JUDGMENT

051297 T24/SJW M/T COA287/97

a result of his injury. Since 1 September 1993 he has not worked. He has been at home and doing as little as possible, resting and elevating the leg. He does a little bit of work around the house. He can do some gardening if he sits down. He does some weeding, he cannot kneel to do it so he sits.

He gave evidence before her Honour that he considered that the pain had become worse and was fluctuating. If he rested it for two or three days it was not very bad. He could stand the pain if he took Panadol tablets. If he walked around a lot or went shopping with his wife, he could do it for half an hour or an hour, but when he came home it was sore.

In October 1994, the appellant's wife of twenty-five years was diagnosed as suffering from breast cancer. The news devastated him. Soon after Mrs Vouros's condition was first diagnosed, she went to hospital. Two days later, she underwent a mastectomy. In August 1995, Mrs Vouros was told she had only two and a half years to live. The appellant was severely affected emotionally by that news. His wife then had to stop work and he did a lot more for her which necessitated his using his knee which became painful.

Prior to the fall, the appellant enjoyed fishing, hiking, and bushwalking. He used to play snooker and ten-pin bowling and go to the cinema. He enjoyed tennis, jogging, weightlifting and push-ups which he was, her Honour found, now unable to enjoy. The injury, her Honour found, had

6   JUDGMENT

051297 T24/SJW M/T COA287/97

affected his intimate relationship with his wife. Prior to the fall, he helped with the housework but was no longer, her Honour found, able to do so.

Her Honour summarized the appellant's remaining problems in this way: he can walk, he will not kneel on his left knee even on a mattress or a carpet because it is too painful.

He is able to bend his knee. If he squats, it causes pain
and he
cannot do it for more than five seconds and therefore he
avoids it. Rather than squat, he sits. He described the
pain in his knee as "like a bit of jagged glass taped to the
front of his knee facing into the knee". Walking causes
pain. The pain radiates from the knee. At times, the pain
goes down his lower leg.

In addition to that part of his claim relating to his physical injury, the appellant claimed in respect of mental disorders from which he has suffered. It was agreed by all the relevant witnesses that the mental disorders were the result not only of the knee injury and his later inability to continue work but also of Mrs Vouros's ill health. Her Honour found that the appellant was experiencing depression in the period between September 1993, when he ceased work, and October 1994, when his wife was diagnosed with breast cancer, which worsened following the distressing news in August 1995. The depression then became more serious.

Since then, following more optimistic prognoses of Mrs Vouros's cancer, his depression has lessened, but it nevertheless continues. He suffers, her Honour found, from

7   JUDGMENT

051297 T25/SA2 M/T COA287/97

a somatoform disorder and chronic abnormal illness the proportion was two-thirds to three-quarters the result of Mrs Vouros's ill health, whereas it would now be approximately 50 per cent., because the appellant has made "some sort of adjustment and has a cautious optimism about his wife's condition".

behaviour. Her Honour accepted the evidence of

At the time of the fall, the appellant was an acting manager. He was earning $390 a week after the deduction of income tax. He has not been employed since 1 September 1993. He is now receiving a pension. He gave evidence that he was now unemployable for two main reasons, namely, that when he discloses problems with his knee to prospective employers, they are no longer interested in him, and he has problems because of his age.

Her Honour found, however, that the orthopaedic and psychiatric evidence did not support the contention that the appellant is wholly unemployable. That evidence discloses that the orthopaedic problems would make it difficult for him to do certain tasks. In particular, Dr Pentis expressed this view:

"The proviso is he stays away from jobs where he squats, kneels and bends on it. He would have to stay away from stairs. He would have to stay away from climbing. They are the main ones. If you can find a job where you can sit and change your position at reasonable intervals, I don't think you would have any major problems with it. Uneven ground may give you

8   JUDGMENT

051297 T25/SA2 M/T COA287/97

some problems but again it is usually knocked out in the fact that you may have to bend and squat in most jobs that traverse uneven ground."

There are no particular employability limitations, her Honour found, related to his psychiatric problems. Dr Mulholland expressed the view that the appellant was able to continue to work, notwithstanding that he was suffering from a major depressive illness. Any inability to work would be attributable to orthopaedic factors rather than psychiatric factors.

When asked what sort of work he thought he could do, the appellant gave evidence that he "would like to do a job where I don't have to walk a lot and if I sat, I would love to be able to get up and stretch the leg now and again. I couldn't sit in one place all day." Ideally, he said, he would like to start his own business. He would need to get advice from a financial or business adviser: "something that did not require a lot of lifting and walking and that sort of thing".

In the seven years prior to coming to Queensland in 1989, the appellant was a self-employed taxi driver. He sold his taxi licence and his home in Sydney and purchased land at Caboolture. On arrival in Queensland he took a couple of months off before he looked for work. He obtained a job as a real estate salesman because he wanted a break from cabs which he had been driving for eighteen years. He earned $4,000 to $5,000 commission as a real estate salesman. He

9   JUDGMENT

051297 T25/SA2 M/T COA287/97

was asked why he could not go back to selling real estate and he replied that that involved a lot of walking showing people around blocks. After working as a real estate salesman he decided he needed a job which paid more money and he applied for three other jobs and obtained a job with the defendant. He began that employment in November 1989.

The appellant's applications for jobs since the fall have been very limited and her Honour found that his present position was that he had not applied for jobs because he considered himself to be wholly unemployable. He undertook a work assessment scheme in January 1994 and worked three to three and three-quarter hours before his leg became swollen and

painful.

Her Honour found that there were periods in which the appellant was unable to continue in his employment with the defendant - or indeed any other employment - because of the disabilities caused in the fall. She found that from 7 August 1992, when he underwent surgery, to his return to work on

22 September 1992 he was unable to work and then later from 3 September 1993 to when he ceased work to 2 May 1994. There was evidence before her Honour that on the latter

date, when the worker's compensation payments ceased, his job with the defendant was still open and he was able to return to work but did not do so. Basing her calculation on

10   JUDGMENT

051297 D.1 T26/SB21 M/T COA287/97

an income of $390 per week after the deduction of income tax her Honour assessed the appellant's damages for impairment of past earning capacity at $16,380.

So far as impairment of future earning capacity was concerned it was suggested to her Honour that a "global" sum based on the premise that the appellant will require two to two and a half years for training and rehabilitation would be appropriate, but her Honour concluded that there was no evidence to support the assertion that the appellant required training or rehabilitation before he became employable. She did allow, however, $10,000, because she concluded that the appellant had continuing problems and because of those problems he was at some disadvantage in the open labour market.

In my view, her Honour's assessment of the appellant's damages for pain and suffering and loss of amenities was a figure within the range appropriate to the injuries in question and I do not conclude that there was any error made by her Honour in making that assessment.

Her Honour's assessment of the damages for impairment of past earning capacity was based on the evidence, and in particular on the evidence, which she was entitled to accept, that on

2 May 1994 the appellant could have returned to work, and his disabilities, physical and psychiatric, did not prevent his doing so.

11   JUDGMENT

051297 D.1 T26/SB21 M/T COA287/97

I therefore conclude that that assessment was open to her Honour on the evidence and no error has been demonstrated in her arriving at the figure in question.

A similar conclusion applies to her assessment of damages for impairment of future earning capacity. It appears from the evidence of Drs Pentis and Mulholland, the evidence her Honour accepted, that the appellant, though restricted in some ways in the range of employment open to him, has not suffered so severe an impairment of his earning capacity as to warrant an award greater than the $10,000 her Honour assessed.

I should therefore dismiss the appeal.

DAVIES JA: I agree.

DOWSETT J: I also agree.

DAVIES JA: The appeal is dismissed with costs.

-----

12   JUDGMENT