West v Gilliland and Gilliland
[1997] QCA 4
•14/02/1997
| IN THE COURT OF APPEAL | [1997] QCA 004 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 247 of 1995
Brisbane
[West v. Gilliland]
BETWEEN:
SHANE JASPER WEST an infant by his next friend ALLEN WEST
(Plaintiff) Respondent
AND:
G.D. & R.A. GILLILAND
(Defendants) Appellants Macrossan C.J.
Lee J.
Fryberg J.
Judgment delivered 14 February 1997
Separate reasons for judgment of each member of the Court each concurring as to the order made.
APPEAL DISMISSED WITH COSTS. CROSS-APPEAL DISMISSED WITH COSTS.
CATCHWORDS: | NEGLIGENCE - DAMAGES - Economic loss assessed on global basis and apportioned as to past and future - whether trial judge took sufficient consideration of plaintiff's liklihood of achieving basketball or professional career - whether apportionment between past and future loss is mere mathematical exercise |
| Counsel: | Mr M. O'Sullivan for the appellants Mr C. White for the respondents |
| Solicitors: | Murrell Stephenson T/A for Roberts Leu and North for the appellants Corrs Chambers Westgarth T/A for Middletons Solicitors for the respondents |
Hearing Date: 27 September 1996
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 247 of 1995
Brisbane
| Before | Macrossan CJ Lee J Fryberg J |
[West v. Gilliland]
BETWEEN:
G.D. & R.A. GILLILAND
(Defendants) Appellants
AND:
SHANE JASPER WEST an infant by
his next friend ALLEN WEST
(Plaintiff) Respondent
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 14/02/1997
I have read the reasons prepared in this matter by Lee J. and Fryberg J. and agree with
them that both the appeal and cross-appeal should be dismissed and costs orders made as Lee J.
suggests.
When the trial judge turned to making his assessment for economic loss both pre-trial and
for the future and gave attention to the ways in which the plaintiff's prospects had been affected by
the accident, there were a number of possibilities to be considered and they by no means all pointed
in the same direction. The competing tendencies amongst those possibilities received careful
attention by the judge. Although I think that the component which more than any other attracts the
attention of this Court is the assessment for past economic loss, the award both in this respect and overall does not call for interference on appeal for the reasons stated both by Fryberg J. and Lee J.
I agree with those reasons.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 247 of 1995
Brisbane
| Before | Macrossan C.J. Lee J. Fryberg J. |
[West v. Gilliland]
BETWEEN:
SHANE JASPER WEST an infant by his next friend ALLEN WEST
(Plaintiff) Respondent
AND:
G.D. & R.A. GILLILAND
(Defendants) Appellants
REASONS FOR JUDGMENT - W.C. LEE J.
Judgment delivered 14 day of February 1997
This is an appeal by the defendants against a judgment of the Trial Division delivered on
18th October 1995. Leave was granted, without objection, to extend time in which the respondent
Plaintiff could cross-appeal against the judgment, as notice of the cross-appeal had not been filed
within seven days of the filing of the notice of appeal, as required by the Rules (O.70 rr. 13, 14
R.S.C.). The appellants' appeal is solely against the assessment of damages for past economic loss.
The respondent's cross-appeal is solely against the assessment made for future economic loss.
Liability for the injury caused to the respondent was admitted by the appellant.
The grounds of appeal are:-
"(a) The finding that the Plaintiff had suffered pre-trial economic loss was against
the evidence and the weight of the evidence.(b) That the amount allowed for past economic loss was excessive." The grounds of the cross-appeal are:-
"1.
The Learned Trial Judge manifestly over-allowed for the possibility that the respondent might not have obtained the necessary O.P. score to enter university had he not been injured in the subject accident.
2.
The Learned Trial Judge manifestly over-estimated the prospects of the respondent in the future, successfully pursuing further studies and obtaining tertiary qualification which would improve his employment opportunities and his general prospects.
3.
The Learned Trial Judge has manifestly over-estimated the extent to which the respondent is coming to terms with his disability and the consequential effect this will have on the respondent's employment prospects and earning capacity.
4.
The Learned Trial Judge has manifestly over-estimated the income which the respondent might now earn in the future.
5.
The Learned Trial Judge has manifestly made inadequate allowance for the incomes which the respondent would likely have earned in professional basketball and a professional career and is now unable to earn because of his disabilities."
The respondent was born on 13th May 1975. On 6th December 1988, when he was 13
years of age, his right hand became caught in a meat mincer during the course of his part-time
employment by the appellants, who owned a butcher shop. Three fingers and the distal part of the
respondent's thumb had to be amputated. A large gash was also caused to the respondent's palm.
The respondent had just satisfactorily completed Grade 8 at the time of the incident. He was
obviously prepared to earn income from such sources even whilst he was a student.
Evidence was given that the respondent had shown exceptional talent as a basketball player,
and also had performed quite satisfactorily in school. There was evidence that before the accident
he had been tested and found to have an IQ of 112, which was described as at the higher end of
average. Item 7 of the respondent's quantum statement, which appears at p.110 of the record,
states that at the time of the incident the respondent, as well as considering playing professional
basketball, also had considered careers as a solicitor, an accountant, or a physical education
teacher.
The evidence shows that after the incident his basketball skills were severely impaired
although he later continued to play at a local and representative level, representing North
Queensland in the Queensland Schoolboys Championship in 1992. There was also evidence, which
His Honour accepted, that his school work deteriorated due to his depression and loss of
confidence. He also had great difficulty writing, as it was his right dominant hand which was affected
by the incident. He has since learned to write, somewhat laboriously and in print only, with his left
hand.
He left school at the end of 1992 after completing Year 12 with an OP score of 20 which
was well below average. He obtained employment as a storeman in May 1993 and continued in
that employment until the trial in October 1995. He had missed an opportunity for promotion in that
job, which he said was due to his physical disability.
The learned judge awarded $250,000 in damages for economic loss, of which $50,000 was
attributed to the past, on which interest was allowed in the sum of $19,464 calculated at the rate of
6% per annum for 6.75 years after allowance was made for the sum of $1,940 by way of income
received from the Workers' Compensation Board. His Honour said that this assessment of
damages was not, and indeed could not be, based on any mathematical formulae, but was rather his
impression of a fair amount based on several factors. Counsel for the respondent accepted that this
approach was appropriate but contended that His Honour did not take into account all relevant
factors or over-discounted the award.
His Honour referred to evidence that the respondent had hoped to pursue a career in the
National Basketball League, on the basis of his quite superior talent at basketball before the injury.
His Honour also referred to the fact that the respondent had expressed some desire to be a solicitor
or an accountant, and that this course was now quite restricted because of the deleterious impact the
injury had had upon his school performance. Although His Honour was of the view that the
respondent intended in the future to pursue some sort of "qualifications", he further stated at p.10 of his reasons that the possibility had to be taken into account that "the chance may have been lost
permanently". His Honour expressed the view that it was by no means certain that even without the
injury the respondent would have achieved any of these goals.
As to the respondent's basketball career, the learned judge noted that the respondent was
only 177cm tall which, although it did not preclude a career in professional basketball, limited the
respondent's chances somewhat, especially in the positions he would have been able to play. His
Honour also pointed to the extremely competitive nature of the professional league, notwithstanding
that at the age of 13 the respondent had been an exceptionally talented player, and to the fact that it
was impossible to determine whether the respondent's determination to succeed at such a high level
would have continued throughout his teenage years, although His Honour said that what had
happened since the accident would tend to favour the Plaintiff.
His Honour said that many of the same factors applied to the respondent's chances of
pursuing a professional career. He said it was by no means certain that the respondent would have
pursued a university education, and that such a course was highly dependent on such factors as
motivation and other related attributes. His Honour also said that he was uncertain that if the
respondent had pursued some sort of professional basketball career, he would have continued with
any tertiary studies. One course may have conflicted with the chance of pursuing the other avenue.
However, His Honour accepted that the respondent's chances of future employment were
substantially diminished because of the injury, and that he must therefore be compensated for it.
The appellants, in their outline of argument, submitted that the $50,000 apportioned for past
economic loss was manifestly excessive. It was pointed out that the respondent's own submission
on damages did not include a component for past economic loss, and that the appellants' submission
on damages included only a small amount for this head. In argument before this Court, the figure of
$10,000 was conceded as appropriate. The appellants also pointed to the fact that at the date of
trial the respondent was 20 years of age and so if he had been at university he could not have expected to have been earning a wage prior to that time. The appellants also pointed to the fact that
there was no evidence to support the notion that the respondent would have been receiving prior to
the date of trial a large income from any basketball career undertaken by him at that stage.
Counsel for the appellants agreed during argument that the primary basis for attacking the
$50,000 award for past economic loss was that the respondent was likely, according to the trial
judge's findings, to go on to university at some future stage. Counsel did however concede that the
respondent's school leaving score, an OP of 20, was "probably a below average score". It must
also be pointed out that the trial judge, in deciding that the respondent did intend to pursue some
further qualifications, clearly contemplated that such qualification may be a T.A.F.E. qualification in
business. His Honour had said:-
"The Plaintiff has indicated an intention to pursue a course at the T.A.F.E. College in
general business and still has that plan."
Counsel for the appellants also argued that the $200,000 awarded for future economic loss
was generous in the circumstances, even if a tertiary qualification were pursued, and that the Court
should not, if it lowered the amount awarded for past economic loss, simply tack the difference on
to the award for future loss. Counsel did not accept the suggestion that the two figures of $50,000
and $200,000 had been arrived at by the learned trial judge, simply by dividing up a total amount of
$250,000, on the basis that this figure was His Honour's considered estimate for the total economic
loss to the Plaintiff, past and future. It was conceded however that if the Court took the view that it
was appropriate merely to reapportion the total award, the only issue then arising would be the
allocation of interest on the award for past loss. It was said that on this basis, if the award for past
economic loss was reduced to $10,000, the appropriate reduction in interest would be some
$15,572. It was contended that at approximately 4% of the total award, this sum alone was
sufficient to warrant disturbing the award: Elford v FAI General Insurance Company Limited
| [1994] | 1 Qd.R 258. Counsel for the respondent contended that the apportionment of $200,000 for future |
economic loss was plainly inadequate. It was submitted that it was very likely that the respondent
would have gone on to pursue a career in professional basketball, law, accounting or as a physical
education teacher, with estimates of earnings given ranging between $313,907 for a physical
education teacher, to $630,000 for a partner in a law firm, before discounting. It was submitted that
had the respondent pursued a career in basketball as well as one of the other professions, the figures
would be much higher.
The trial judge's finding that the respondent may well in the future pursue a tertiary
qualification was also disputed by Counsel for the respondent, who submitted that the respondent's
impaired writing ability was a significant detriment. It was also submitted that because His Honour
had nowhere in his reasons specifically referred to the respondent's thoughts of becoming a physical
education teacher, he had not adequately turned his mind to all of the issues involved. It was said
that the award for past and future economic loss could be increased to $550,000 of which $50,000
should be attributed to the past. It was submitted that $50,000 for the past was totally justified
because for example the respondent would probably have earned benefits from basketball and other
part-time jobs which he had clearly undertaken even whilst he was a student, and that in any event,
the sum of $15,572 was too insignificant in comparison to the total award to warrant disturbing it on
the basis finally contended for by the appellants.
The Plaintiff's claim was in effect based upon the loss of a chance to pursue a professional
basketball career and the loss of a chance of proceeding directly from school to university with a
view to fitting himself for a professional career of some type. His Honour took the view that it was
impossible to determine with certainty that the respondent would have undertaken a basketball
career or a career as a solicitor or accountant. The fact that he did not specifically mention the
lowest earning occupation, physical education teacher, does not affect the validity of His Honour's
overall approach.
The respondent's significant basketball ability and his motivation were recognised by His
Honour. However as indicated His Honour referred to the respondent's modest height, the
extremely competitive nature of the competition at a professional level, and also to the fact that such
a career was a matter of some uncertainty, particularly in light of the fact that the respondent may
have decided instead to pursue the somewhat more secure option of a tertiary education.
His Honour also accepted that the respondent's injuries had precluded him from tertiary
education upon leaving school. However His Honour was also of the opinion that the respondent
may yet decide to undertake some further study at a later date, even if at T.A.F.E. rather than
university. It has not been established on the balance of probabilities that the respondent will never
be able to undertake such further studies. It may be more difficult for him than for most students,
but certainly not impossible. Indeed the respondent in his cross-examination admitted that he had
some vague intentions of that sort (p.19). These were all matters for assessment by the learned trial
judge.
His Honour accepted that there was a significant diminution in the respondent's possible
fields of employment because of the injury. Accordingly His Honour made his overall assessment of
damages on that basis, and not merely on the basis of any basketball or professional career as
postulated by the respondent.
His Honour said at p.10 of his judgment:-
"I accept that the Plaintiff has been deprived of chances which I would regard as significant as a result of the accident in both respects although in relation to the professional qualification I am of the view that it may well be that what the accident has done is to postpone any such qualification."
As indicated, His Honour accepted that it was "impossible to approach the matter upon the
basis of mathematical calculations. The chances involved have relevance to both the past and future
aspects of the Plaintiff's impairment of earning capacity." His Honour was required to base his
assessment on a consideration of the Plaintiff's lost or diminished or delayed chances on the basis
that neither of those chances might have been achieved in any event.
It is clear that there was evidence that the respondent had suffered some past economic loss
as a result of his injury. It was submitted on his behalf that he could have had a promising basketball
career with significant earnings immediately upon leaving school. There was also the probability of
part-time employment whilst a student. Indeed he was engaged in such activity at the date of the
accident. It may be also that the respondent, even if he had not pursued professional basketball or
tertiary studies, has had other trades or occupations closed to him with the resultant past economic
loss. It cannot be said that in adopting the overall approach he did, His Honour was not entitled to
attribute $50,000 to past economic loss which carried a calculation of interest as above referred to.
Nor does there seem to be any sufficient reason to interfere with the trial judge's award for
future economic loss. The many "imponderables" referred to by the learned judge, including the
possibility of future study, must be borne in mind in arriving at the appropriate award. His Honour
correctly ascertained that the respondent's prospects in life were significantly reduced, but that they
were not altogether ruined. It cannot be said that His Honour's overall assessment was not justified
in the circumstances.
The appeal is dismissed with costs. The cross-appeal is likewise dismissed with costs.
IN THE COURT OF APPEAL
| SUPREME COURT OF QUEENSLAND | Appeal No. 247 of 1995 |
| Brisbane | |
| Before Macrossan CJ |
Lee J
Fryberg J
[West v Gilliland]
BETWEEN:
SHANE JASPER WEST an infant by his next friend
ALLEN WEST
(Plaintiff) Respondent
AND:
G D & R A GILLILAND
(Defendants) Appellants
REASONS FOR JUDGMENT - FRYBERG J
Judgment delivered 14 February 1997
I agree with the orders proposed by Mr Justice Lee and with his Honour's reasons for them. The learned trial judge approached the problem of determining damages for loss of earning capacity by assessing a total amount ($250,000) for the totality of that loss and then apportioning it to pre-trial and post-trial components ($50,000 and $200,000 respectively). In the circumstances of this case, that approach cannot be (and was not) criticised. I see no reason to differ from the total assessed by his Honour. The amount which his Honour attributed to pre-trial loss was certainly high; but given the methodology adopted, the process of apportionment was peculiarly a matter for judgment, upon which different minds might reasonably differ.
Moreover, given that the total was not wrong, the only component of the judgment which could be affected by a change in the apportionment is interest on the damages for loss of pre-trial earning capacity. The amounts involved are less than the variations in assessment of damages which differences in individual judgment may produce. In these circumstances, interference by the Court of Appeal is not warranted.
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