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  • Unreported Judgment

Bryan Neville Jones v Babcock Australia Limited

 

[1988] FC 11

IN THE SUPREME COURT OF QUEENSLAND

Appeal No. 73 of 1987.

FULL COURT

BEFORE:

The Chief Justice (Sir Dormer Andrews)

Mr. Justice Thomas

Mr. Justice de Jersey

BRISBANE, 7 MARCH 1988

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)

-----

BETWEEN:

BRYAN NEVILLE JONES

(Plaintiff) Respondent

- and -

BABCOCK AUSTRALIA LIMITED

(Defendant) Appellant

JUDGMENT

MR. JUSTICE THOMAS: In my opinion, the appeal should be allowed with costs, the judgment should be set aside and replaced with a judgment for $73,793.34 with costs. I publish my reasons. I am authorised by the Chief Justice to say that he agrees with the reasons I have published and the order which I propose.

MR. JUSTICE de JERSEY: In my opinion, the appeal should be allowed and orders made as indicated by my brother Thomas. I agree with my brother Thomas' reasons.

MR. JUSTICE THOMAS: Order accordingly.

-----

IN THE FULL COURT OF QUEENSLAND

Appeal No. 73 of 1987

BETWEEN:

BRYAN NEVILLE JONES

(Plaintiff) Respondent

AND:

BABCOCK AUSTRALIA LIMITED

(Defendant) Appellant

_____________________

CHIEF JUSTICE

THOMAS J.

DE JERSEY J.

_____________________

Reasons for Judgment delivered on the 7th March, 1988 by Thomas J.

All concurring.

_____________________

“APPEAL ALLOWED WITH COSTS. JUDGMENT SET ASIDE AND REPLACED WITH A JUDGMENT FOR $73,793.34 WITH COSTS.”

_____________________

IN THE SUPREME COURT OF QUEENSLAND

Appeal No. 73 of 1987

FULL COURT

Before the Full Court

The Chief Justice

Mr Justice Thomas

Mr Justice de Jersey

BETWEEN:

BRYAN NEVILLE JONES

(Plaintiff) Respondent

AND:

BABCOCK AUSTRALIA LIMITED

(Defendant) Appellant

JUDGMENT: THOMAS J.

Delivered the 7th day of March, 1988.

CATCHWORDS:

Damages - pre-existing condition likely to cause similar problems to plaintiff upon minor trauma in any event - necessity for substantial discount in accordance with principle in Wilson v. Peisley (1975) 50 A.L.J.R. 207, 209, 212.

Counsel:

Mr. R.F. King-Scott for Appellant/Defendant

 

Mr. D.A. Reid for Respondent/Plaintiff

Solicitors:

Quinlan Miller & Treston T/A for V.A.J. Byrne & Co. for Appellant/Defendant

 

Lyons O'Shea & Co. for Respondent/Plaintiff

Hearing dates:

15th February, 1988

 

IN THE SUPREME COURT OF QUEENSLAND

Appeal No. 73 of 1987

FULL COURT

BETWEEN:

BRYAN NEVILLE JONES

(Plaintiff) Respondent

AND:

BABCOCK AUSTRALIA LIMITED

(Defendant) Appellant

JUDGMENT - THOMAS J.

Delivered the 7th day of March, 1988.

This is an appeal by the defendant against the trial Judge's assessment of damages in favour of a plaintiff. The learned trial Judge made a total assessment of $168,462.07, and after deducting Workers' Compensation refund of $51,668.73 gave judgment for the plaintiff for $116,793.34.

The assessment was made up as follows:

  1.  

Damages for pain suffering and loss of amenities

$45,000.00

  1.  

Past economic loss

$70,000.00

  1.  

Future economic loss

$20,000.00

  1.  

Future recurring expenses

$11,000.00

  1.  

Agreed special damages

$11,462.07

  1.  

Interest

$11,000.00

The appellant's submissions are that the amounts awarded under items 1, 2 and 4 above (pain and suffering, past economic loss and future recurring expenses) were manifestly excessive, and that the total award ought to be reduced accordingly (cf. Keefe v. R.T. & D.M. Spring Pty. Limited (1985) 2 Qd.R. 363).

The respondent injured his back at his place of work in January 1983. He was then aged 45. He initially received conservative treatment and later a laminectomy in May 1984. The learned trial Judge observed:

“The problem that underlies the plaintiff's condition is that he had a narrowed spinal canal before the work incident. Consequently, a relatively small prolapse of the disc caused acute pressure on his nerves and pain down his legs. Prior to the incident he did have some difficulties and the doctors agree that at some stage his back would have produced symptoms in walking and in moving about that would have seriously limited him.”

The evidence suggested and His Honour found that it was probable that at some stage “not very far away” he would have ceased to be able to carry out heavy work of the kind that he had previously pursued. Indeed his pre-accident condition was described as “very vulnerable” and such that a disc prolapse could occur from something as simple as a sneeze (per Dr. McClymont). A prolapse such as that suffered by the plaintiff was described as one that can “happen very easily” to a person in the plaintiff's condition (per Dr. Toakley). This was therefore a case in which the factor recognised by the High Court in Wilson v. Peisley (1975) 50 A.L.J.R. 207, 209, 212-213, 216 was highly relevant. In that case Barwick C.J. observed:

“Whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant's negligence intervened.” (p. 209)

Stephen J. observed that bearing in mind the possibility that some other relatively mild physical trauma might have precipitated the plaintiff's condition and the prospect of suffering some similar although possibly less distressing symptoms in any event called for a “heavy discount” (p. 212). This factor is relevant in the present case to a proper assessment of damages for pain, suffering and loss of amenities as well as to the assessment of economic loss.

The learned trial Judge observed a “lack of candour” on the part of the respondent in relation to his evidence of income from an orchid-growing business in which he was involved between accident and trial. Perusal of the transcript shows His Honour's concern to be well-founded. His Honour observed other inappropriate aspects of the plaintiff's evidence which he considered left “something of a cloud over his evidence”. The case presented for the respondent was that he had not been able to work since the accident and that he was now an invalid pensioner. He claimed his orchid-growing activity was mere recreation, but an income tax return shows an income of $17,000.00 from the sales of orchids. The same return also shows alleged business expenses of a greater amount so that no taxable income was earned. In the deductions there appears the cost of a trip to the United States and various transport expenses. The evidence shows that he drove himself to Brisbane and back on ten occasions. Not only was there an obvious attempt to mislead the Court in relation to the level of these activities, no business record was produced after June 1985, and to say the least his evidence in relation to his business activities after that time was unsatisfactory. His wife was not called as a witness. Failure to call her was not explained.

His Honour assessed pre-trial economic loss at $70,000.00, which seems to be the mean between $47,000.00 (which is a projection without discount of, earnings of the kind he received at the time of the accident) and $90,000.00 (which is projection without discount of special employment at “Callide B” which is available to a limited number of workers). Both projections assume full-time continuous work by the plaintiff throughout the period of more than four years which elapsed between accident and trial. The evidence showed that he had been unemployed for two and a half months between jobs during the relevant pre-accident history. It also showed that he had hoped to get employment in Gladstone, a circumstance which militated against the likelihood of his working at Callide B, even assuming his physical ability to sustain it.

The circumstances of the present case called for significant discounting in the assessment of pre-trial economic loss. Whilst courts no longer require the precision of proof that was once required when proof of pre-trial economic loss was treated as “special damages” the plaintiff still has to prove his loss. It is difficult to see why a nil value should have been placed upon his undoubted earning capacity over the past one and three-quarter years as to which he has produced no records. No discounting whatever appears to have occurred in respect of this residual earning capacity. Furthermore no discount has been allowed for the fact that this plaintiff would at all times have been at significant risk of some other accident or deterioration. That factor at least calls for a conservative approach to this head of damages even over the first four years after the accident. The assessment for this item is manifestly excessive. Taking into account the factors that have been mentioned, such damages should not in my view exceed $45,000.00.

The next item challenged is in relation to damages for pain, suffering and loss of amenities of life. In this respect it is desirable to mention a complicating factor. As a result of the laminectomy operation the plaintiff suffers from a painful condition of arechnoiditis. Such a condition apparently can result (and did result) from the operative procedure, but would not be likely to develop spontaneously from a prolapse such as might occur from a simple accident or trauma. This justifies His Honour's obversation that “his present condition which is a direct result of the accident is probably worse than the condition into which he would have deteriorated at some stage a few years hence”.

The arachnoiditis is an inflammatory scarring of the nerves along the respondent's back and its effect is to produce pain from time to time. This factor therefore introduces a question of degree into the extent of proper discounting for the prospect of a similar condition supervening apart from the accident. However the Wilson v. Peisley factor still remains a very relevant consideration. The evidence discloses a comparatively urbane lifestyle. The cloud over the plaintiff's credit makes it difficult to accept at face value aspects which are not demonstrated by the medical evidence. Courts try to maintain a relative consistency in awards under this heading, at the same time recognising that no two cases are exactly alike. It seems to me that the effects produced by the accident upon this plaintiff's life are not nearly so serious as to justify an award of $45,000.00 under this head. In my view a proper award should not exceed $35,000.00.

Finally it was submitted that the amount allowed for future recurrent expenses is manifestly excessive. It is apparent from Ex. 16 that His Honour allowed in full the weekly cost of various drugs ($8.92), a car service every three months at $50.00, and the cost of painting the house ($2,000.00 every 13 to 17 years), for the rest of the plaintiff's life expectancy of 25 years. The complaint is that there has been no discounting. In particular there has been no reduction for the Wilson v. Peisley factor. The probability that he would have had similar problems that would have called for at least some medication, and which would have been likely to cause him to seek the physical services of others from time to time existed quite apart from the accident, and it was erroneous to fail to take it into account. No more than $7,000.00 should have been assessed.

In the result the total assessment should be reduced by $39,000.00. A consequential adjustment to interest, is necessary. I would not disturb the pre-trial component in respect of pain and suffering of $15,000.00, but a substantial reduction is necessary in relation to interest on pre-trial economic loss. It is now assessed at $45,000.00, and the evidence shows that relevant payments of $40,205.00 were received over part of that time from the Workers' Compensation Board. The total for interest on all relevant components (including the damages representing the Fox v. Wood factor) should be $7,000.00. The appeal should be allowed with costs and the judgment set aside and replaced with a judgment for $73,793.34 with costs.

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Editorial Notes

  • Published Case Name:

    Bryan Neville Jones v Babcock Australia Limited

  • Shortened Case Name:

    Bryan Neville Jones v Babcock Australia Limited

  • MNC:

    [1988] FC 11

  • Court:

    QSC

  • Judge(s):

    The Chief Justice (Sir Dormer Andrews), Mr. Justice Thomas and Mr. Justice de Jersey

  • Date:

    07 Mar 1988

Litigation History

No Litigation History

Appeal Status

No Status