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  • Unreported Judgment

William Stanley Mace v John Michael Charles Braitling

 

[1978] FC 8

 

No. 1868 of 1974

 

WILLIAM STANLEY MACE

Respondent (Plaintiff)

V.

JOHN MICHAEL CHARLES BRAITLING, BRADLEY ANDREW BRAITLING, MARIE TERESA BRAITLING AND JOHN MICHAEL CHARLES BRAITLING AS EXECUTRIX AND EXECUTOR OF THE WILL OF ERNEST REGINALD BRAITLING DECEASED AND OF ELIZABETH BRAITLING DECEASED, JOHN MICHAEL CHARLES BRAITLING AS EXECUTOR OF THE WILL OF HENRY CHARLES BRAITLING DECEASED, BRAITLING BROS. A FIRM, AND BRAITLING ESTATES, A FIRM

Appellants (Defendants)

_____________________

THE CHIEF JUSTICE

STABLE S.P.J.

MATTHEWS J.

_____________________

Reasons for Judgment delivered by the Chief Justice and Matthews J. on the 22nd March, 1978, Stable S.P.J. concurring with the Chief Justice.

_____________________

“Appeal dismissed with costs”.

_____________________

IN THE SUPREME COURT OF QUEENSLAND

No. 1868 of 1974

BETWEEN:

WILLIAM STANLEY MACE

(Plaintiff) Respondent

AND:

JOHN MICHAEL CHARLES BRAITLING, BRADLEY ANDREW BRAITLING, MARIE TERESA BRAITLING and JOHN MICHAEL CHARLES BRAITLING as Executrix and Executor of the Will of ERNEST REGINALD BRAITLING Deceased and of ELIZABETH BRAITLING Deceased, JOHN MICHAEL CHARLES BRAITLING as Executor of the Will of HENRY CHARLES BRAITLING Deceased, BRAITLING BROS. a firm, and BRAITLING ESTATES, a firm

(Defendants) Appellants

JUDGMENT - THE CHIEF JUSTICE

This is an appeal against an assessment of $55,000.00 general damages for personal injuries sustained by the respondent plaintiff by the negligence of the defendants appellants who were his employers.

The sole basis of the appeal is that the award is manifestly excessive in a general sense, there being no challenge to any of the findings and no complaint of any specific error by the trial judge in his assessment.

The respondent sustained his injuries in September 1971 when he was aged 22 years. He was employed by the defendants to erect a fence on a pastoral property and in the course of his work he was driving a tractor drawing a trailer when the tractor reared on its back wheels, going up the steep slope of a gully, and flipped over so as to pin the driver between it and the drawbar of the trailer. His companion was unable to extricate him unaided and had to go away to obtain help leaving the respondent pinned under the tractor for a considerable period during which his left leg suffered what the learned trial judge describes as “terrible burns”.

The plaintiff was educated to senior public examination standard but did not matriculate mainly, as His Honour found, because he lacked interest rather than intelligence. It was his ambition to obtain work in the pastoral industry with the aspiration of becoming a manager or overseer of a pastoral property. This kind of work he found most attractive and it was the only career to which he was inclined.

In his reasons His Honour remarked that the plaintiff's injuries, principally burns and abrasions to the left leg, and the treatment given him were extensively pleaded, as were the after-effects of the injuries and treatment, and he added that what was pleaded was amply proved. He found it unnecessary to write a lengthy chronicle concerning the pain, discomfort, and on occasions, embarrassment which the plaintiff had suffered since the accident. However since the quantum of his assessment is under attack I feel it would be desirable to summarise briefly the injuries and their treatment.

The plaintiff spent the first few weeks after his injury in the Springsure Hospital where his burns and abrasions were debrided and treated with systemic antibiotics, and in the following month he was transferred to the St. George Hospital which was nearer to his family home. There it was found that there was a complete third degree burn extending from the patella to the ankle deeply involving the muscles. He was then transferred to the Holy Spirit Hospital where further examination revealed a large defect from the lower border of the patella extending downwards on the anterior surface to the lower third of the leg. The subcutaneous surface of the tibia and the ligamentum patellae were exposed and dark with a large grunulating area surrounding it which exposed the muscles and tendons of the lateral compartment of the leg. Thereafter he underwent five major surgical procedures all under general anaesthesia between the end of October, 1971 and the end of December, 1973, four of them being before the end of 1971. The 1971 operations were connected with skin grafting and the raising of a pedicle for the transfer of skin from the upper abdominal region first to the left forearm which was later to be grafted on to the damaged lower leg. Towards the end of 1971 the plaintiff suffered a pulmonary embolism which put him on the dangerously ill list. During his convalescence he contracted osteomyelitis which ate into the bone of his lower leg and it was this which made necessary the last of his surgical procedures, the one that occurred in December, 1973, in which a large sequestrum was removed from the subcutaneous surface of the tibia. The bone cavity was packed and drained. This kept him in hospital for 3 months.

After referring in broad terms to these injuries and their effect His Honour commented that the plaintiff is a young man of fortitude who had, in his opinion, come to terms with his injuries, except for his continuing hankering after employment in the pastoral industry when he should realise this would expose his leg to high risk in the future. His Honour also commented that while the plaintiff's scarring is severe and extensive he is quite a good-looking man who, as he thought, was not greatly embarrassed by the cosmetic defects although he had pleaded them as being gross and such as to occasion considerable embarrassment and severely impair his prospects of marrying. The lastmentioned misfortune did not occur - he had married shortly before the trial. As to the continuing problems associated with the injured left leg His Honour found that there is an extensive grafted area which is left vulnerable because it lacks normal sensation; that there was a remote possibility of re-infection of the underlying bone; that there is limitation of movement at the knee and ankle and that a severe disability resulted from an irreparable tear of the anterior cruciate ligament. His Honour found that in the long term it is inevitable that he will develop degenerative changes in his left knee necessitating surgical intervention i.e. arthrodesis of the knee. The orthopaedic surgeon called on this point estimated his residual disability thereafter as a 30 percent disability of the whole of the left leg. Another finding of importance made by His Honour is that the plaintiff is in reality unemployable in the pastoral industry, in which he had been able to remain only because his father gave him employment on his own property in what was tantamount to a sheltered workshop environment. The learned Judge found it to be quite clear that his ambition to manage a property or to oversee it, which he would probably have attained, could not now be fulfilled. It was His Honour's view that he had to seek some other means of livelihood and indeed ought not to have continued to work so long in that industry. However he was in His Honour's view far from unemployable because “he is intelligent, articulate and personable ... and a trier”.

There are three basic divisions in His Honour's approach to the assessment of the global figure of $55,000. Firstly His Honour allowed $14,000 to cover a transitional period during which he would be either out of work whilst re-training for more suitable employment, or would be greatly disadvantaged in the employment market whilst trying to find some new occupation. Taking his present annual wage in his father's employ at approximately $7,000 per year His Honour assigned $14,000 to that component of damages to cover the re-training transitional period. The second basis taken by His Honour also concerned pecuniary loss and whilst insisting that his award of $55,000 in total was a global one His Honour indicated the thinking which led him to make it, namely that he should include a sum of the order of $30,000 for pecuniary loss including that covered by the $14,000 allowed for the re-training period. Hence he had in mind the figure of $16,000 for future economic loss in general. The factors which His Honour kept in mind, in assessing the third component he described as follows:

“Additionally, he must be compensated for past and future pain, suffering and inconvenience, and for lost amenities (such as ability to engage in competitive sports and active recreations). The fact that he cannot continue in the career which he had decided to make his life's work is a serious deprivation. There would have been some hazards associated with that career.”

Thus it becomes clear that His Honour allowed in his mind approximately $25,000 to cover the factors that he mentioned in the above extract.

Included in the agreed special damages there was an item of $4,330 for loss of earnings up to trial, so that it becomes clear that the figure of $30,000 which I have taken out of His Honour's reasons, including the $14,000 for the re-training period, is intended as compensation wholly for future economic loss.

The appellants attack principally the item of $16,000 and the item of $25,000 attributed to pain and suffering and the loss of amenities, but they conceded that they could not reasonably attack the allowance of $14,000 for the re-training period. They argued that the figure of $16,000 is too high an allowance for the risk and disability on the labour market in the future, particularly after the re-training of the respondent for less hazardous work for which the defendants will be paying, and they also submitted in respect of the item of $25,000 that despite the very severe injuries and the lengthy and painful treatment involved he suffered only minor pain at the time of the accident and moderate pain thereafter. Reference was made to some passages in the evidence in which the plaintiff himself seems rather to have minimised his pain at the time of the accident:

“In what position were you?-- With my back on the drawbar of the trailer and my knees raised, pinned by the side of the tractor, pinned onto my chest.

Was either of your legs free? My left leg was free?-- both legs, I understand, were free from the knee down.

What about your arms?-- My left arm was pinned by the steering wheel and the throttle stick of the tractor.

Did you feel anything immediately after the tractor overturned?-- I could certainly feel the weight of the tractor on me. I could also feel, after three or four minutes, the acid from the battery starting to leak out on my left arm.

What about your left leg?-- After a period of 8, 9 or 10 minutes, I suppose, I started to lose feeling in both legs, and my left arm - I lost the feeling in it.

Had you had any burning sensation in the leg?-- After probably 10 minutes or so, in my left leg I could feel a burning sensation.

What about your breathing? Was there any numbness with that?-- Yes. The tractor was on me and my knees pinned into my chest. I had quite a difficulty in breathing - quite a bit - until I adjusted myself to the situation.”

In another passage he said that after a period of time he just lost feeling. The appellants' submission as to his suffering during treatment relied on the following evidence:—

“Did you experience any pain whilst you were in hospital at St. George?-- No. I had no feeling in my leg, anyway. It was certainly sore in parts after the operation.

When you came to Brisbane were you feeling any pain at that time?-- I had some pain, yes.

Did you go into the Holy Spirit Hospital?-- I did, yes.

There you had operations performed by Dr. Harris?-- Yes.

Dr. Harris has described these various operations. Did you experience discomfort in the course of those operations?-- I did, yes.

How would you describe them - bad discomfort, moderate discomfort or no discomfort?-- It would probably be bad discomfort. I couldn't move my left arm about at all. It was pinned to my chest. It was like that for some weeks.

What about your position in bed? Could you move your position at all?-- No. I had to have help from the nurses.

Did that in itself cause discomfort, having to lie in the one position?-- At times I did have bed sores.

Did those bed sores then cause you further discomfort?-- No. They were remedied by the hospital.

“You have told us about the first one. When the arm was taken away from the chest and attached to the leg, how would you describe the discomfort then - bad or worse?-- Very bad. Very uncomfortable, it just seemed to be. I couldn't move around at all. I had to be moved from side to side or wherever I had to be.

That went on for some three weeks, Dr. Harris has told us?-- It did, yes.

What did you do for occupation during that time? Could you read or listen to the radio?-- No. I could listen to the radio. I didn't exactly feel like reading for the first 10 or 12 days. It was very uncomfortable.

...

The bout that took you to Chermside, did that cause you further distress?-- There was. It was very painful.

How long would you say that pain persisted?-- In varying degrees for three or four days, five days.”

As to the argument on pain and suffering one need only say that His Honour had an advantage over members of this court in that he was able to assess the character and the degree of fortitude of the plaintiff and to make what in his opinion was an appropriate award for the suffering of the plaintiff even though he endured it with stoic indifference. It was conceded for the appellants that the operations did occasion considerable pain but they submitted that it was of brief duration and will not recur. It must be kept in mind that this component in the damages also included compensation for the respondent's loss of his chosen life-style. His Honour said, “the fact that he cannot continue in the career which he had decided to make his life's work is a serious deprivation.”

I turn now to the appellants' attack upon the component of $16,000, which as I have shown, can be accounted for only as an allowance for future economic loss. On the evidence and His Honour's findings this item must be taken to cover his diminished value on the labour market, as a severely disabled man, as well as the risk of occasional loss of work due to trauma sustained by the vulnerable leg, but assuming successful re-training he will be taken out of the high-risk rural industry. Consequently the extent of his economic loss by trauma-caused absences from work should not be regarded as major. The item must also be intended to cover the future arthrodesis and costs associated with it both for treatment and for consequential loss of earnings during treatment, and the increased physical disability of a permanently stiffened knee.

For the respondent it was argued that there was evidence from which His Honour could find that even after being re-trained his earnings would be a great deal less than what they would have been if he had become a station manager. This calculation before His Honour took a number of assumptions in which his earnings as a station manager were compared with those from substitute positions to which he had become reduced by reason of his injuries. The differences ranged between $2,600 per year to $5,600 over the ordinary working life of the respondent. It was argued for the respondent that, on this basis, an allowance of $30,000 for his total economic loss (i.e. $14,000 for the transitional period and $16,000 for the future would seem to be far too low). An employment consultant called for the plaintiff below gave evidence that having regard to his age and lack of academic achievement he could not place him at present and he recounted as the difficulties against placing him “lack of experience in anything other than the pastoral pursuits whilst competing with men of his own age and younger with many years of experience. His award rate would be the same as a man with eight or ten years' experience because of the way in which the award system operates.”

The principles which govern an appellate court in performing its task of reviewing an assessment of general damages for personal injuries have been re-stated by the High Court in several recent cases. In Precision Plastics Pty. Ltd. v. Demir (1975) 132 C.L.R. 362, at p. 369, Gibbs J. said:

“Where ... it has not been shown that (the judge) acted on any error of principle or misapprehension of the facts, the appellate court will only intervene if satisfied that the judge has made a wholly erroneous estimate of the damages suffered.”

In Wilson v. Peisley (1975) 50 A.L.J.R. 207, at p. 209, Barwick C.J. said:—

“The setting aside of an award of damages in a trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion, be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the aware quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small: and therefore of itself a demonstration of error present though otherwise undisclosed. The less ponderable the elements of the “damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of a trial not blemished by error or irregularity.”

I am not persuaded that there is any manifest excess in what His Honour allowed for gross and disfiguring bodily injury, pain and suffering, past and future, including the foretold arthrodesis, loss of amenities, inconvenience and frustration of his life's ambition, future loss of earning capacity and the risk that he may sustain further injuries to a very vulnerable limb with consequences both personal and economic that are difficult to foretell.

It has not been shown that His Honour acted on any error of principle or misapprehension of the facts, nor have I been satisfied that he made a wholly erroneous estimate of the damages suffered by the plaintiff.

Consequently I would dismiss the appeal with costs to be taxed.

IN THE SUPREME COURT OF QUEENSLAND

No. 1868 of 1974

BETWEEN:

WILLIAM STANLEY MACE

(Plaintiff) Respondent

-and-

JOHN MICHAEL CHARLES BRAITLING, BRADLEY ANDREW BRAITLING, MARIE TERESA BRAITLING and JOHN MICHAEL CHARLES BRAITLING as Executrix and Executor of the Will of ERNEST REGINALD BRAITLING Deceased and of ELIZABETH BRAITLING Deceased, JOHN MICHAEL CHARLES BRAITLING as Executor of the Will of HENRY CHARLES BRAITLING Deceased, BRAITLING BROS. a firm, and BRAITLING ESTATES, a firm

(Defendants) Appellants

JUDGMENT - MATTHEWS J.

This appeal is brought from an award of $55,000.00 by way of general damages to the respondent who when 22 years of age in July, 1971 was injured an a result of the negligence of the appellants, his employers. The injuries suffered by the respondent and their treatment and effect upon him are set out in some detail in paragraphs 15, 16 and 20 of the Statement of Claim and His Honour the trial Judge has said that those particular paragraphs were substantiated at the trial. The three paragraphs read:—

“15. The plaintiff's injuries were as follows: he suffered extensive burns and abrasions to the left leg and was admitted to Springsure Hospital on the 28th September, 1971 where he was treated with analgesics and tetanus toxoid, the burns and abrasions were debrided, cleaned and dressed and treated with systemic antibiotics. On the 6th October 1971 he was transferred to St. George Hospital and on dressing the wounds on the 14th October, 1971 it was found that it was a complete third decree burn involving the skin over the patella, the patella tendon which was also burnt and the skin down to the ankle. This burn extended down to the deep fascia and part of the muscle in the lateral compartment of the leg. All dead tissue was excised, the wound dressed and the plaintiff given injections of penicillin and streptomycin.

On the 16th October the leg was again dressed and more dead tissue removed. On the 18th October he was transferred to the Holy Spirit Hospital where examination revealed a large defect from the lower border of the patella of the left leg extending downwards on the anterior surface to the lower third of the leg. The subcutaneous surface of the tibia and the ligamentum patellae were exposed and dark. There was a large granulating area around this exposing the muscles and tendons of the lateral compartment of the leg.

“The following operations were performed:

  1. The 22nd October, 1971. Under general anaesthesia, an operation lasting three hours; namely a skin graft to the granulating defect of the left leg, and the first stage in the preparation of a skin flap to be transferred from the upper abdominal and lower thoracic wall, at this stare the flap was raised and attached to the whole length of the left forearm. A graft was applied to the abdominal defect. Following this stage the left arm remained attached to the upper abdomen for three weeks.
  1. 29th October, 1971. Operation under general anaesthesia, lasting two and a quarter hours, namely:
  1. Dressing of the abdominal flap.
  1. A transposition vizor flap from above the left knee to below the left knee, to cover the exposed knee joint.
  1. A skin grafts to further granulations of the left leg.
  1. 12th November, 1971. Operation under general anaesthesia, lasting three hours. Transfer of the skin flap attached to the left forearm to the left leg, and a skin graft to the large defect on the thoracic wall. Following this operation the leg remained acutely flexed at the hip and knee, and the left forearm was maintained parallel and attached to the leg below the knee. On 23rd November 1971 at 3.00 a.m. the patient suffered a hypotensive episode which was diagnosed as a pulmonary embolism, and he was transferred by ambulance to the Chermside Chest Hospital, and treated by anticoagulation. At this stage he was placed on the dangerously ill list.
  1. On 3rd December, 1971 at the Chermside Hospital under general anaesthesia, an operation lasting two hours, division of the pedicle and its attachment to the arm and replacement of the forearm flap. A further grafting procedure was carried out to the granulating defects of the left thigh and the chest wall.
  1. On 14th December, 1973, under general anaesthesia in association with Dr. Pozzi, the flap on the leg was raised and a large sequestrum was removed from the subcutaneous surface of the tibia. The bone cavity was packed and drained, and a further operation performed some two days later, when the packing was removed the area was redrained and the flap resutured in position. He was discharged from hospital on 5th March 1973.

16. There is now a quite significant length of scar in the lower leg which area is devoid of sensation and hence prone to trauma which is painless but liable to ulceration and slow healing. There is also a possibility of dormant bone infection and there are large areas of scarring on the chest wall and leg which are cosmetically repulsive but for which no treatment will be of particular avail. The large area of scarring on the abdominal and thoracic walls covered by skin grafting preclude sunbaking and are subject to irritation from normal clothing. A large scar on the left forearm is subject to trauma in normal occupational duties. It is quite possible that there may be further problems in relation to the scarring, “the area of replaced skin on the tibin and the underlying bone.

20. Further the plaintiff who was an accomplished sportsman in now unable to engage in any of his previous athletic pursuits and has suffered loss in his on enjoyment of life by the loss of these recreational activities which he formerly enjoyed.”

His Honour observed of the respondent:—

“It should, however, be noted that he is a young man of fortitude who has, in my opinion, come to terms with his injuries (save that he still hankers after employment in the pastoral industry, and it is clear that it is foolish for him to expose his leg to the risks which it must run in that industry). It should also be noted that, whilst the plaintiff's scarring is severe and extensive, he is quite a good-looking young man. I am not persuaded that he is greatly embarrassed by reason of the cosmetic defects referred to in paragraph 21 of the statement of claim, and it is the fact that he married not long ago.

The problems associated with the plaintiff's left leg are, in brief, as follows. There is an extensive area which has been the subject of a skin graft, which is vulnerable because it lacks normal sensation. The underlying bone has been infected (the plaintiff contracted osteomyelitis) and it is possible that it may again become so infected (this is a remote possibility). There is limitation of movement at the knee and at the ankle. A severe disability is an irreparable tear of the anterior cruciate ligament. In the long term, it is inevitable that he will develop degenerative changes in his left knee which will necessitate surgical intervention, i.e. an operation to stiffen the knee. Dr. McSweeny estimated his residual disability as a 30 per cent disability of the whole of the left leg.”

In speaking of the respondent's economic loss and relevant damages in respect thereof His Honour said in his reasons for judgment:—

“In quantifying damages for injury to earning capacity, I propose to proceed upon the basis that - taking reasonable steps to mitigate his loss - he will either seek to make use of his existing skills in some other occupation or set about acquiring new skills which can be turned to financial advantage. He will do this at a time when the pastoral industry is depressed and the employment market generally is not good.

There will be a transitional period during which he will be either out of work (whilst re-training) or greatly disadvantaged in the employment market (whilst attempting to establish himself in some new occupation). It cannot be said how long the transitional period will last, but it seems to me that it is reasonable to calculate his loss during his period of great disadvantage on the footing that the accident will result in his being without employment for two years or so during the transitional period. His present annual wage and emoluments whilst employed at Moonie Ponds amount to $6,965.00. He would be making more if he had become a manager. It follows that not less than $14,000 should be assigned to this component of his damages.

“It in my opinion that, after the transitional period, it in more probable than not that he will have re-established himself in some new calling. He will notwithstanding such re-established remain more prone to injury (and consequential loss of work) than he would have been but for the accident; and, if lie is thrown out of work, he is likely to be at some disadvantage in competition with others for jobs. When an arthrodesis becomes necessary in the future, that operation will involve expense and time off work. These sundry detriments entitle him to substantial compensation.”

From what His Honour said it follows that by allowing $14,000.00 in respect of loss during what he described as the “transitional period” His Honour necessarily limited the loss, of future earning capacity to the general matters (proneness to injury, some disadvantage on a competitive labour market and the possible arthrodesis) mentioned by him. In the light of an approximate sum of $30,000.00 included as economic loss in the award I think that for the general matters to which I have referred His Honour was very liberal in his consideration of this aspect of the respondent's case.

Although the respondent suffered serious injury and prolonged and painful treatment of it I think it important to observe that the 30 per cent disability of the left leg estimated by Mr. McSweeny was largely resultant from a consideration of possibilities for the future (for example proneness to injury and infection, possibility of arthrodesis) rather than a presently disabling result of his injury although one should not minimise the tear of the anterior cruciate ligament to which reference was made. The plaintiff walks without a limp and in something like five years the only injury suffered by him as a result of his proneness to injury was a sunburn of his lower leg. Therefore bearing in mind what I said with respect to economic loss I have reached a conclusion that the global award is so high as to justify the interference of this court and that the appeal should be allowed. As other members of the Court have reached a contrary conclusion there is no point in giving consideration to the amount of general damages which, in my opinion, would have been appropriate to the case.

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Editorial Notes

  • Published Case Name:

    William Stanley Mace v John Michael Charles Braitling

  • Shortened Case Name:

    William Stanley Mace v John Michael Charles Braitling

  • MNC:

    [1978] FC 8

  • Court:

    QSC

  • Judge(s):

    The Chief Justice, Stable S.P.J. and Matthews J.

  • Date:

    22 Mar 1978

Litigation History

No Litigation History

Appeal Status

No Status