Hoppe v Burns [2010] QSC 490

[3] The parties seem content to rely upon Dr Nave's assessment of the injury. He described it in the following terms:

"Mr Hoppe has suffered a compound injury to the right upper arm involving deeper structures. The documentation indicated that the biceps muscle belly was completely divided and there was 20 percent division of the median nerve and five percent division of the musculocutaneous nerve. It would appear that there has also been total division of the medial antebrachial nerve, a cutaneous nerve supplying the medial forearm."

[4] The consequence of the injury is that Mr Hoppe has suffered both a sensory deficit and a motor deficit in the right arm together with slight restriction in the movement of the right elbow and right thumb. Mr Hoppe indicated that he has a loss of sensation in his thumb, index and middle finger of his right hand and altered sensation on the medial side of his right forearm.

[5] Dr Nave assessed the impairment at 32 percent loss of efficient use of the right arm and equated that to 19 percent whole person impairment. So much is uncontroversial.

[6] The critical issue debated was the impact that this injury had on Mr Hoppe's earning capacity. In relation to that assessment the defendant submitted:

(a) Mr Hoppe had been guilty of defrauding both Centrelink and the Commissioner of Taxation and it followed that his evidence could not be relied upon when he spoke of his disabilities and his efforts to obtain employment;

(b) Mr Hoppe had suffered injuries prior to the accident that were of significance;

(c) Mr Hoppe's drink driving history was such that it would significantly and adversely affect his chances of getting employment, irrespective of injury;

(d) Mr Hoppe's personality was such that he was likely to present poorly to prospective employers, again irrespective of injury;

(f) Mr Hoppe was not motivated to work after the subject accident.

[7] I am not satisfied that the defendant has made out that the plaintiff was guilty of defrauding either Centrelink or the Commissioner of Taxation. The submission was based on what was said to be discrepancies in the documents evidencing Mr Hoppe's income and his receipt of Centrelink benefits.

[8] One difficulty is that the claimed fraudulent conduct was never put to Mr Hoppe and so he has been given no opportunity to explain the documents. Mr Morton, who appeared for the plaintiff, submitted that there were explanations, and that those explanations depended upon the defendant's failure to compare a like period with a like period and to bring into account amounts that had been paid by WorkCover to the plaintiff.

[9] These explanations may or may not explain the discrepancies that the defendant has highlighted but in the absence of the plaintiff being put on notice of these serious allegations it would seem to me to be quite inappropriate to draw the inferences that the defendant seeks be drawn.

[10] In any case it does not seem to me that the submission leads anywhere - if anything Mr Hoppe tended to understate aspects of his injury. I certainly did not detect any exaggeration. His complaints accorded completely with the analysis made by the medical experts as to what they would expect.

[11] A further submission was made that Mr Hoppe had claimed to various experts that he had worked for the defendant company for some 4 years prior to his injury, that the financial documents did not disclose earnings for so extended a period and hence he had defrauded the Commissioner of Taxation. I had the opportunity to observe Mr Hoppe for a reasonable period of time in the witness box. I think it fair to say that he did not seem to pay any great respect to the detail of the questions that he was asked. In his final address Mr Crow, who appeared for the defendant, submitted that Mr Hoppe's whole attitude to the trial process was inappropriate, he lounging back in the witness box with his arms around his head for some period of the cross examination. The description is accurate. But I think the end result is that it is far more likely that Mr Hoppe was not particularly concerned to be totally accurate in his answers to the doctors and indeed probably not particularly concerned as to how long he had spent working at any one place. I do not think there was any active intention to mislead anybody - Mr Hoppe simply does not care.

[12] The defendant points to two injuries that he claims are significant. The first was an injury to the left knee and the second a fractured clavicle. The knee injury occurred sometime prior to 29 May 2002 and the fractured clavicle on 18 November 2002. The defendant pointed out that in his history to medical practitioners Mr Hoppe had indicated that he was in good health and had no significant time off work due to any prior injury. The defendant submits that those answers were wrong and misleading.

[13] It is evident that Mr Hoppe had left knee problems on and off through 2002. A medical certificate was issued giving him a month off work in August-September 2002.

[14] Mr Hoppe's evidence was that the knee had given him some trouble for "a couple of months at the most". He was very vague as to when this had occurred. There is no evidence that the left knee injury had caused any significant interference with any employment.

[15] In his evidence in chief Mr Hoppe explained that the knee "just slips out from under me, it's just an old injury". He said that it did not stop him working at any stage for the defendant. The defendant was not called to prove the contrary.

[16] Similarly the collar bone injury was not shown to significantly affect his employment in any way. According to the financial records Mr Hoppe was in receipt of Centrelink benefits for the whole of the 2002 and 2003 financial years.

[17] In my view these pre-accident injuries have no significant impact on the assessment of damages or on Mr Hoppe's credit.

[18] Mr Hoppe admitted to five drink driving convictions, the most recent having occurred the night before the start of the trial. Mr Hoppe explained that he had lost his licence for six months on the first occasion, a couple of months on the second, and a year each on the third and fourth occasions. He is yet to be dealt with for his fifth offence.

[19] When questioned about this appalling history the following evidence was given:

"And would you concede that alcohol appears to be a problem in your life? - - No, not at the moment, I've just got bad luck."[1]

[20] This driving history is, as the defendant submits, relevant in several ways. Firstly it would seem highly likely that this conduct will reoccur. Either Mr Hoppe does have an alcohol problem and so cannot control himself or he has no regard for the law. To characterise five significant breaches of the law as "bad luck" demonstrates that Mr Hoppe does not take seriously his obligation not to drink and drive.

[21] Secondly, having no license to drive can impact on your employment chances. The significance of this was explained by Mr Steven Hoey, an experienced occupational therapist. Holding a licence is relevant in three ways to your employment, he explained. Firstly it is required for any courier driving work. Secondly it is useful in getting to and from work particularly where there is no public transport available. Thirdly, many employers require a driving license so that their employees can run errands for them during the course of the day. I would add a fourth restriction - that is that some employers might consider that an employee with such a history is a high risk employee. There would be a perception amongst many people that a person with such an appalling history must have an alcohol problem.

[22] Hence there must be some discounting of any assessment of Mr Hoppe's earning capacity if uninjured, to allow for this factor. Further, as Mr Crow submitted, one would think there is every prospect that Mr Hoppe will be facing a period of imprisonment. Fines do not seem to work. If the presiding magistrate learns that Mr Hoppe's attitude to his offending conduct is that it is "bad luck" that he keeps getting caught then that magistrate will more than likely assume that Mr Hoppe has not the slightest remorse for his conduct and that would almost certainly restrict his or her sentencing options.

[23] The defendant drew attention to Mr Hoppe's behaviour on two occasions when attending at hospitals for medical treatment where he used inappropriate language or acted inappropriately towards staff.

[24] I have studied the Royal Brisbane Hospital nursing notes and I observe that on the day after the occasion of the use of foul language and the inappropriate conduct the clinical staff have recorded "no further reports of foul language have been mentioned. On review patient is cooperative and pleasant".

[25] Mr Hoppe's behaviour towards the nursing staff was reprehensible. Nonetheless the major incident was in the early stages after the subject injury and he was clearly in significant pain. I do not see that any inference should be drawn against Mr Hoppe in terms of his likely impact on a prospective employer.

[26] The plaintiff has a very poor work history. Mr Hoppe explained that in the 17 or 18 years between leaving school and his injury he had performed a variety of types of employment including general labouring, green keeping, bar work, concreting and "irrigation". He agreed that he had been in receipt of unemployment benefits throughout that time.

[27] So far as the documents disclosed by the plaintiffs show he had no employment in 2002 and 2003 financial years and earned only $2,081 in the 2004 financial year. He earned that sum over a period of 14 weeks between 25 March 2004 and 30 June 2004 - an average of $129 per week.

[28] In the 2005 financial year Mr Hoppe received Centrelink in the sum of $4,439 and earned $17,945 gross from the defendant. Thus he was entitled to Centrelink benefits for about one half of the year.

[29] In the 2006 financial year Mr Hoppe received some $2,192 in Centrelink payments - equivalent to about 3 months worth of payments and earned $16,923 gross to the date of his injury of 5 December 2005. His average net weekly income was around $700.

[30] Mr Hoppe explained that he had worked as a labourer on and off for his friend, Mr Burns, the defendant. On the very day of the subject injury he had commenced an apprenticeship as an electrician.

[31] The taking up of an apprenticeship does not seem to reflect any great change in attitude from Mr Hoppe. His evidence in chief was as follows:

"How did it come about that he commenced that apprenticeship?- - Um, he [a reference to Mr Burns] had a lot more work on, coming up.

Yes? - - and yeah, just he felt it would be better for me to acquire a trade.

And what did you think about that? - - yeah, I thought it was a good idea, so that was it."[2]

[32] The strong inference that I draw from the material is that Mr Hoppe was not greatly motivated to work in the years prior to the accident. He did not suggest that the period covered by the documentation that he produced was in some way atypical for his life. He presumably was prepared to work for his friend Mr Burns when work was available. But there is no reason to think that his attitude had changed significantly when he commenced this apprenticeship.

[33] The Uniform Civil Procedure Rules 1999 require that the plaintiff reveal his or her employment history going back for a period of only three years prior to the injury (see rr 547(3)(b)(i) and 548(1)(d)). The theory underlying the rules is that there ought to be some limit to the disclosure that a plaintiff must make and that a period of three years prior to the injury provides the defendant with a reasonable period on which to work for the purposes of estimating the plaintiff's pre-accident earning capacity. Hence, without further disclosure by the plaintiff, all that the defendant might know is his earnings history in the three years prior to the accident. Thus when a plaintiff comes to trial having disclosed no more documentation than the rules require, and that documentation displays a very poor earnings history, and there is no apparent reason for that poor history, then I am not inclined to make any strong assumptions in the plaintiff's favour that had there been full disclosure of any greater period it would display any more beneficial picture.

[34] Allied to the poor work history is the defendant's submission that Mr Hoppe has expressly admitted that he was not motivated to seek work subsequent to his injury. The defendant relied on three pieces of evidence for the submission. The first is contained in a Job Capacity Assessment Report prepared by one Kate Amos of Health Services Australia Limited on 23 January 2009. The assessment was prepared at the request of Centrelink for the purpose of assisting Mr Hoppe in obtaining employment. Ms Amos reported that Mr Hoppe told her:

"...that he has not worked since accident and reported that he can't work and doesn't intend to prior to settling a compensation claim for his injury which he believes is going to court in the next few months...Client has a vague goal of starting a lawn mowing business after receiving his compensation claim".

[35] Secondly, in a report prepared by Miss Lesley Stephenson on behalf of the defendant, Miss Stephenson has recorded Mr Hoppe telling her on 4 November 2008 that "he dislikes waiting before he can return to work".

[36] Finally the defendant pointed to the paucity of the evidence led demonstrating any real commitment to obtain employment. Job search journals were tendered on the plaintiff's behalf but the plaintiff admitted there were only a few such journals in existence. The two pages tendered record 24 prospective employers who presumably had been approached. One document is dated 27 August 2009 and the second bear's dates from 3 October 2007 to 1 February 2007 which I assume should be 2008.

[37] I think that it is clear enough that Mr Hoppe was not greatly motivated to obtain employment before the resolution of these proceedings.

[38] With these observations in mind I turn to the assessment of damages.

[39] It is not in contest that the plaintiff has a serious injury to his right arm. He is ambidextrous to a degree but nonetheless he is clearly significantly restricted. He has suffered a loss of strength and, as I have recorded, some significant sensory impairment. He cannot carry out tasks requiring fine motor skills due to the loss of sensation in his fingers. The injury presents a significant barrier to him obtaining employment. As well the injuries interfere with his recreations of teaching kick boxing and playing golf.

[40] Pain is not a major feature of his condition but is present. Mr Hoppe maintains that he has occasional nerve pain for which he takes paracetamol.

[41] As I have mentioned in my view Mr Hoppe did not overplay his symptoms at all.

[42] The defendant submitted that I award $45,000 and the plaintiff $75,000.

[43] Neither counsel were able to refer me to any awards that were particularly on point. Mr Morton drew my attention to a decision of Byrne SJA of Bathis v Startrack Express & Ors [2009] QCS 331 where His Honour awarded $65,000 for an injury to the hand of the plaintiff assessed by the medical practitioners as involving a 30 percent impairment of the arm below the elbow. As I have mentioned the assessment here by Dr Nave was of a 32 percent permanent impairment of the right arm. Comparison of percentage impairments of course is of only limited use. I note particularly that in his summary of the effects on the plaintiff Byrne J noted that the plaintiff there suffered pain for extended periods, which is not a feature of this case. As well the plaintiff there had suffered further injuries because of the condition of his hand. I bear in mind that Byrne SJA considered that the plaintiff's submission of $65,000 was "modest".

[44] Mr Crow drew my attention to a number of decisions which are now very dated where $45,000 had been awarded for cases where the permanent impairment to the injured arm was at least in the order of that here.

[46] The assessment of damages under this head of loss requires a consideration both of the likelihood of Mr Hoppe retaining and maintaining his employment as an apprentice electrician, an assessment of his residual earning capacity and consideration of whether or not he has done all that is reasonable to exercise that capacity. To the extent that the defendant argues that the plaintiff has failed to mitigate his loss the onus is plainly upon the defendant to make good the point.

[47] The plaintiff's submission was that he ought to be assessed on the basis that he would have worked through his apprenticeship and eventually qualified on the award wages that applied. Effectively he argues that there should be no discounting for any residual earning capacity.

[48] The defendant contends that for the purpose of the assessment I should assume that Mr Hoppe would have persisted with his apprenticeship for about two years and then allow simply an amount of $10,000 reflecting the loss of a chance of his maintaining employment if uninjured.

[49] Those competing submissions assess the plaintiff's loss at between a little under $40,000 and a little over $111,000.

[50] There is no persuasive evidence in this case that Mr Hoppe has ever persisted with any employment for any significant length of time. It is clear that his estimates of the periods in which he was involved in his various occupations are unreliable.

[51] Thus in my view there needs to be a reasonable and significant discounting for the chance that Mr Hoppe would not have persisted with the work, assuming that it was available.

[52] The remaining issue is Mr Hoppe's residual earning capacity. He plainly has such capacity. Ms Amos, who performed the job capacity assessment for Centrelink in January 2009 came to the view that Mr Hoppe had the capacity for "30 plus hours per week" in "suitable work". The occupations that were considered suitable were ones that did not require major manual dexterity or two handed lifting.

[53] Ms Stephenson, occupational therapist, concluded:

"Mr Hoppe's future employment and training opportunities have been severely hindered by his injuries. He is now limited to sedentary tasks at work as he cannot feel fingers on the right hand to do fine motor tasks. Also he cannot lift heavy weight and do other labour intensive tasks such as shovelling. Mr Hoppe aspires to operate a lawn mowing franchise. He would like to strengthen his right arm so he can return to work but is limited in this because he cannot afford to go to the gym. He would be limited to working 30 hours per week until his right arm is strengthened adequately."[3]

Ms Stephenson considered that Mr Hoppe's goal of operating a lawn mower franchise was a realistic one.

[54] Mr Hoey, occupational therapist, concluded that Mr Hoppe was capable of occupations in the sedentary range only. This precluded him from pursuing a career as an electrician. Mr Hoey conclusion was expressed as follows:

"Considering that he has no previous experience, training or realistically aptitude for more sedentary occupations, it remains possible (and I consider likely) that this man will remain unemployed for the rest of his life (save for occasional periods of casual work for friends or family). I believe him to be significantly more vulnerable in the labour market than he was pre-accident. His employment outlook is poor."[4]

[55] Mr Hoppe himself seemed to have a more optimistic view of his capacity. He accepted in cross examination that there were "many many jobs, light jobs, sedentary jobs" that he could do.[5]

[56] As I have said I think it plain that Mr Hoppe was not motivated to seek out employment subsequent to his injury but rather was awaiting resolution of his compensation claim.

[57] Weighing up these various factors it seems to me there should be a significant discounting from the potential maximum income that Mr Hoppe would have earned had he persisted with the apprenticeship, qualified and maintained employment as an electrician as reflected in the submission that he has suffered a loss of a little over $111,000. There is no evidence that there was any particular position available to him since his injury that he ought to have taken up in his injured state and so this aspect cannot figure too significantly in any discount. However his motivation to persist in employment for an extended period of time is very much in doubt. I discount the past economic loss by about 40 percent to arrive at a figure of $70,000 damages for this head of loss.

[58] The defendant's submission was that the plaintiff had a reasonably significant residual earning capacity reflected by the wage payable to a toll collector (as suggested by Mr Hoey) of about $480 net per week. Even if one accepted that the plaintiff would have qualified as an electrician then the loss would be in the order of $235 per week, the net wage for an electrician being in the order of $715 net per week. If that loss was applied through to normal retirement age it would then need to be discounted heavily to allow for the prospect that Mr Hoppe would not have qualified as an electrician or sought to have maintained full employment through his life in any case. The defendant submitted that $121,742 was an appropriate assessment.

[59] The plaintiff's submission was that I should assume that he would have qualified as an electrician, adopt a present net weekly wage of $695 and apply that over a period to age 67 (multiplier 809.6) and then discount that by 25 percent to allow for contingencies. That approach results in an award of $422,000.

[60] It is likely that Mr Hoppe would not impress an employer for reasons that both predated the accident, which I have discussed above, and for reasons consequent upon the accident eg. the fact he has an injury, the fact that he now has a compensation history and the fact that he has been out of employment for a significant period now. His best prospect for maximising his earning capacity is probably to set up a business of his own. Ms Stephenson has suggested that the lawn mowing franchise that he has in mind would be a realistic option. The earnings from such a business are not precisely known but one would expect them to at least equal if not exceed the wage available for sedentary non-skilled work (for example, that of a toll collector).

[61] The principal difficulty with the plaintiff's approach is the notion that the fulltime earnings of an electrician are a reasonable guide to Mr Hoppe's probable future had the accident not occurred. In my view although he had a chance of persisting and qualifying that chance was reasonably remote given his pre-accident history and the other matters that I have mentioned.

[62] It should not be overlooked that Mr Hoppe was capable of earning nearly $700 net per week as a labourer in the 5 months prior to the subject accident. In my view he has taken a significant step down from that level due to this injury. I would assess that reduction at about one-half of his pre-accident abilities. The prospects of he maintaining employment at that level however come back to motivation and that is very much in doubt.

[63] I assess the diminishment in the plaintiff's earning capacity at $250 per week and apply that to age 67, as suggested by Mr Morton, and discount that by 15 percent to allow for the usual contingencies. I assess the loss at $170,000.

[64] The only other significant difference between the parties related to the amount that ought to be allowed for the future cost of pharmaceuticals, medical treatment and the like. Mr Hoppe explained that he occasionally takes paracetamol for pain but has sought no other treatment. The occupational therapists spoke of the need to strengthen his right arm which would probably require him to attend at the gymnasium at least for a period. Dr Nave too spoke of a continued exercise program being "relevant to his condition". There was no medical evidence that any further treatment is required. I allow $2,500 for medication and the expense of obtaining a suitable exercise program until the right arm is appropriately strengthened.

[65] The remaining heads of loss are unexceptional. In summary the award is as follows:

[66] There will be judgment for the plaintiff in the sum of $306,860.84.