Driver v Stewart & Anor [2001] QCA 444

SUPREME COURT OF QUEENSLAND

CITATION: Driver v Stewart & Anor [2001] QCA 444

PARTIES: BRENDAN JOHN DRIVER / (plaintiff/respondent) / v / BENJAMIN STEWART / (first defendant/first appellant) / MMI GENERAL INSURANCE LIMITED / ACN 000 122 850 / (second defendant/second appellant)

FILE NO/S: Appeal No 3282 of 2001 / DC No 1669 of 2000

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 19 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 18 September 2001

JUDGES: Williams JA, Jones and Douglas JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal dismissed with costs.

CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – GENERALLY – RE-EMPLOYMENT OF WORKER – whether past economic loss was calculated incorrectly given that no allowances were made for contingencies – whether future economic loss was calculated incorrectly given that the learned trial judge limited the plaintiff’s retirement age to 60 years of age. / DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – PAIN AND SUFFERING – whether the amount of damages awarded was excessive or inappropriate given the degree of incapacity and discomfort caused to the plaintiff – whether the award for future aid and treatment (ergonomically designed chair) was appropriate. / Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258 / McDonald v FAI General Insurance Company Ltd [1995] QCA 283

COUNSEL: A P Collins for appellants / R J Lynch for respondent

SOLICITORS: McMahons National Lawyers for appellants / Richardson & Lyons for respondent

WILLIAMS JA: This is an appeal against the quantum of damages awarded in a personal injury action arising out of a motor vehicle accident. The respondent was born on 16 October 1966 and injured on 24 February 1999; thus he was aged 32 at the date of the accident and 34 at the date of trial.

At the time of the accident the respondent was working as a marine trimmer and had been so employed for some time. He continued that employment for some seven months after the accident. A critical finding made by the learned trial judge was that his employment as a marine trimmer ceased because he could not physically manage the work; his work station was such that it precipitated neck and thoracic pain.

The learned trial judge was also satisfied that but for the accident and consequent injury the respondent would have continued working as a marine trimmer until retirement.

It also is clear from the findings of fact made by the learned trial judge that the respondent is restricted in the variety of occupations open to him given the consequences of his whiplash injury. He is currently able to work as a telemarketer but there are obvious limitations on what he may earn in that capacity over the balance of his working life.

The amounts awarded for pain and suffering and future economic loss are on the high side, but in all the circumstances I am not persuaded that the overall award is such as to justify this Court interfering with the assessment.

Other relevant facts and issues are discussed in the reasons for judgment of Douglas J with which I agree.

The appeal should be dismissed with costs.

JONES J: I have had the advantage of reading the reasons for judgment of Williams JA and Douglas J. I agree with those reasons and with the order that the appeal be dismissed with costs.

DOUGLAS J: This is an appeal against an assessment of damages by a judge of District Courts in which judgment was given in favour of the respondent to this appeal in the sum of $113,547.

The respondent’s injuries occurred in a motor vehicle accident on 24 February 1999. The respondent is a 34 year old man. The injuries consisted of an apparent relatively minor injury to his neck and upper back in respect of which he took no time off work. He was employed at that time as a marine trimmer. His treatment consisted, in the main, of three blocks of physiotherapy treatment between March/April 1999, and December 1999/January 2000. At the end of each block of physiotherapy, he had either no or very little back or neck pain whilst at work, although his condition was susceptible to aggravation under load.

Prior to the accident the respondent had a complex medical history, including:

treatment for lower back pain, being a condition which affected him performing heavy work;

poor posture;

depression necessitating medical treatment;

alcoholism resulting in live-in rehabilitation from 1991 until 1996; and

sexual abuse as a child, in respect of which charges were laid against an alleged offender but were withdrawn by the respondent a week after this accident notwithstanding the fact that the alleged offender had been committed for trial.

The respondent continued work as a marine trimmer for some seven months after the accident, and he left of his own accord. He then tried working, for himself, as a car detailer, and began work as a telemarketer in early 2000. He continues in that employment. He has not required medical treatment since January 2000, apart from one treatment by his general practitioner in respect of an aggravation of his spine, including his lower back, caused by the jarring of a boat in rough weather during a fishing trip. He has never required care and assistance as a result of his injuries.

Dr Gillett assessed his injury as causing a 3% permanent impairment of bodily function and noted that the plaintiff described the pain in his neck as an “uncomfortable sensation”. Dr Gillett also stated that if one were strictly applying the American Medical Association Guide for Impairment the plaintiff would be assessed at a 6% impairment of the whole body. It is difficult to really gauge what is meant by such percentage assessments. The real test is the extent to which a trial judge is able to assess the degree of incapacity and discomfort which is caused by an injury or injuries. In this case the respondent had no prior history of neck or upper thoracic pain prior to the subject motor vehicle collision. The learned trial judge assessed general damages at $25,000. This is the first ground of appeal. It must be said that in this case the learned trial judge had the best opportunity of observing the respondent and in assessing the degree of incapacity and discomfort caused by the injury. It cannot be said in view of his findings that an award of $25,000 is manifestly excessive or inappropriate.

The next matter of complaint is the learned trial judge’s assessment of past economic loss. Based on a net income when the plaintiff left his employment as a marine trimmer of $390 per week, the following assessment was made:

“Number of weeks - 80 balance $31,200

Less income earned $19,100

Balance $12,100

Award $12,000”

The appellants’ argument is that economic loss should have been calculated on the basis of $30 per week for 80 weeks being the time since he ceased employment as a marine trimmer. That amounts to $2,400. The $30 is derived from the difference between the $390 mentioned earlier and the sum of $360 net per week earned from his employment as a telemarketer. The evidence as to $360 per week was given by the plaintiff in evidence and when one reads the transcript it becomes obvious that it was an estimate. The best evidence of his actual earnings as a telemarketer is in exhibit 7 which reveals an average net weekly income of not more than $325. The difference between the two amounts is then $95. The learned trial judge was entitled to accept that the respondent would have continued to work as a marine trimmer, and would have continued to earn an income at not less than $390 net per week rising to $420 net per week at the time of trial. His Honour did not reduce the award for any contingencies but, in my view, this was reasonable in the circumstances.

I am not of the view that the learned trial judge erred in principle or in any calculation of his assessment of past economic loss.

The appellant also complains of the amount awarded for future economic loss in the sum of $70,000. His Honour determined:

that if the plaintiff was still working as a marine trimmer he would be earning $420 net per week;

that as a telemarketer he earns about $325 net per week;

that he is unlikely to be able to earn more income; and

this reveals a loss per week of $95 net which will continue for 30 years.

It is correct that the learned trial judge found that he would have continued to work as a marine trimmer until he was ready to retire at “say, aged 60”. In doing this I am not of the view that his Honour was necessarily limiting the period for the calculation of future economic loss until the plaintiff’s sixtieth birthday. What his Honour did then was to allow 30 years assuming an eventual retirement by the plaintiff short of his sixty-fifth birthday. This is not an unusual finding. In fixing the amount of the weekly loss, he had regard to both the sums of $420 net per week and $325 net per week, to which reference has been made earlier.

One cannot assume that the respondent will always work as a telemarketer. It may not be that telemarketing will always be a favoured way of selling products or services. In any event, in such an occupation, being casual employment, he does not receive the benefit of entitlements such as sick leave and holiday pay. Further he is restricted in other occupations for which he is qualified by reason of qualification, skills or experience according to the occupational therapist who gave evidence in the case. These include factory hand, labourer, kitchen hand and bus driver.

The learned trial judge using the 5% discount tables and assuming the loss of $95 per week reached a figure of $78,000 (rounded). The multiplier used was 30 years. His Honour then reduced that figure by some 10% to reach the eventual sum of $70,000 to allow for the possibility of early retirement. His Honour in arriving at his conclusion with respect to future economic loss said:

“In assessing damages speculation can play a part (see for example McDonald v FAI General Insurance Company Ltd CA 127 of 1995). But there is nothing to suggest that the plaintiff would not have continued on at Wynnum Marine until retiring age. He enjoyed the job and was good at it. If I am to speculate that he might have changed his mind and done better for himself I consider I should also speculate that something ill might have befallen him (non-compensable) and he might have done worse for himself. In this case, in my view, these contingencies cancel each other out. I do, however, think that a reduction should be made for the contingency that the plaintiff might retire before the age of 60.”

There are a number of ways of calculating future economic loss in this case. They result in figures above and below $70,000. The range is not great, however. In my view there is no substance in this ground.

The final ground of appeal related to an allowance made by his Honour for the cost of future aids and treatment. It is submitted that the learned trial judge acted on a wrong principle of law in awarding the costs of these items (totalling $1,040) in the absence of evidence from the plaintiff that he would use, and continue to use, them if they were supplied. The major items were a chair to use at work together with a sloped support for use in reading and writing. Those items totalled $665. The chair, in fact, was recommended by an occupational therapist and has been provided by the respondent’s current employer. He may lose the advantage of that if and when he changes his employment and, in any event, such an ergonomically designed chair would assist the plaintiff in any desk or home office work he might do. In my view his Honour was entitled to award the sum but in any event if this was the only matter upon which the appellant might succeed, the amount would not justify interfering with the overall judgment: see Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258.

I would dismiss the appeal with costs.