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In Vitro Technologies Pty Ltd v Taylor

 

[2011] QCA 44

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

SC No 7039 of 2009

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

DELIVERED ON:

15 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2011

JUDGES:

Muir and Fraser and Chesterman JJA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed with costs to be assessed on the standard basis

CATCHWORDS:

TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – where the appellant (the ‘employer’) required all employees to use a plastic mat under their chair – where the respondent was injured whilst she was trying to resume her seat as a result of her chair sliding away from her over her mat – where the respondent gave evidence of a complaint made to the employer by a co-worker in the respondent’s presence about the use of the  mats – where the employer directed the respondent that the mats must remain so that all cubicles were the same – where the employer argued that the terms of the complaint did not suggest that the mats were slippery – where the employer argued the co-worker’s evidence was a reconstruction and unreliable –  where the trial judge accepted the respondent’s evidence of the slipperiness of the mat as credible and reliable – whether the trial judge erred in finding the employer negligent

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – WHERE FACTS IN DISPUTE – where the employer argued the respondent had confined her case to suggesting that the chair moved whilst she stood up – where the employer had cross-examined the respondent in relation to whether the chair moved whilst she was trying to resume her seat – where the precise moment of the chair’s movement was not critical to the respondent’s case – whether the trial judge erred in finding that the chair moved whilst the respondent was attempting to resume her seat

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – OTHER CASES – where the trial judge accepted the respondent’s oral evidence as to the slipperiness of her mat – where the trial judge remarked that the employer had not called expert evidence or tendered the mat – where expert evidence was not essential for the respondent to succeed in her case – whether the trial judge reversed the onus of proof

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where witnesses for the employer gave evidence that they had worked in places where plastic mats were used without suffering or hearing of any incident – where the employer argued this evidence was unchallenged and the trial judge gave inadequate reasons for accepting the evidence of the respondent over the employer’s witnesses – where the evidence of the employer’s witnesses did not materially conflict with the respondent’s evidence – whether the trial judge’s failure to expressly state reasons for accepting the respondent’s evidence amounted to an error of law

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the trial judge’s assessment of past economic loss and future economic loss were made on a global basis – where the trial judge had referred to critical aspects of the evidence and identified factors which bore upon his assessment of damages – where the assessments of past and future economic loss were not capable of precise proof – whether the trial judge’s reasons were inadequate

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – where the respondent’s employment after she left the employer involved substantially the same salary – where the respondent voluntarily moved to Cairns with her husband to make a ‘fresh start’ – where the respondent’s employment in Cairns was at a substantially lower salary – where the respondent suffered a marital breakdown and moved back to Brisbane – where the respondent commenced employment in her new partner’s business where she could work ‘family friendly’ hours – where an orthopaedic surgeon concluded the respondent’s employability on the open market was significantly adversely affected – whether the awards of damages for past economic loss and future economic loss were excessive

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, applied

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, cited

Littlejohn v Julia Creek Town and Country Club Inc [2010] QCA 361, cited

McDonald v FAI General Insurance Co Ltd [1995] QCA 436, considered

Selvanayagam v University of West Indies [1983] 1 WLR 585, cited

Taylor v Invitro Technologies Pty Ltd [2010] QSC 282, explained

COUNSEL:

D J North SC, with R C Morton, for the appellant

M Grant Taylor SC, with L T Barnes, for the respondent

SOLICITORS:

MacDonnells Law for the appellant

Romans & Romans Lawyers for the respondent

[1]  MUIR JA: I agree that the appeal should be dismissed with costs for the reasons given by Fraser JA.

[2]  FRASER JA: After a two day trial a judge in the trial division gave judgment in favour of Ms Taylor for $419,461.36 against her former employer as damages for personal injuries caused by the employer’s negligence and breach of contract of employment.[1]  The employer has appealed, contending that Ms Taylor's claim should have been dismissed or that the amount of damages awarded to Ms Taylor for some items of loss should be reduced.  Alternatively, the employer contended that there should be a new trial on liability and damages.  The issues in the appeal involve questions of fact and the adequacy of the trial judge’s reasons in the particular circumstances of this case.

Liability

[3] Ms Taylor was 38 years old on 8 May 2007 when she was injured.  At that time she had been employed by the employer for nearly a year as a medical supplier’s representative.  Her office cubicle included a desk, shelves on a wall on her left hand side (as she was facing her desk), and a wall on her right hand side to which a map was attached.  There was a chair on castors.  The floor was carpeted.  Ms Taylor gave evidence that she was often required to consult the map, which identified hospitals and other places which she and other employees visited in the course of their employment.  She could not read entries on the map from her chair so that her work frequently required her to stand up and resume her seat.

[4] Ms Taylor gave evidence that some weeks after she was employed in the office she was instructed to place a plastic mat under her chair.  She noticed that her chair was apt to move very quickly over the plastic mat.  The mat was ‘extremely, extremely slippery’ and it was ‘surprising to see how far [the chair] would actually move’.  Ms Penhaligon, a co-employee who used a similar chair and mat in an adjoining cubicle, also gave evidence of the propensity of her chair to slide quickly over her mat.  She said that the chair “would just glide around on those mats…quite freely” and would “just flick out from underneath you”.

[5] Ms Taylor and Ms Penhaligon approached the employer’s office manager, Ms Henderson. Ms Penhaligon gave evidence that she complained to Ms Henderson in Ms Taylor’s presence that the mats were “dangerous and hazardous”.  Ms Taylor gave evidence that in her presence Ms Penhaligon complained to Ms Henderson about the mats’ “extreme” slipperiness.  Ms Taylor heard Ms Penhaligon tell Ms Henderson that the mats were “really dangerous” and “so slippery”.  Ms Taylor and Ms Penhaligon both gave evidence that Ms Henderson directed them that the mats must remain.  Ms Penhaligon said that she was told that ‘the mat was part of the refurbishment and management wanted them [sic] there’.  Similarly, Ms Taylor’s evidence was that Ms Henderson conveyed her orders that all work stations were to be the same.  Accordingly, the plastic mat remained in Ms Taylor’s cubicle.

[6] Ms Taylor gave evidence of a subsequent occasion when she was planning a sales trip.  She stood up from her chair to retrieve a book from the top shelf on the left hand side of her work station, turned to look at the map on the right hand side, and then started to sit back down in her chair.  She gave evidence that she thought she would have reached out to hold the chair still, “but it wasn’t there, but I had started to sit so I was committed to the sit … and I remember I fell”.  Ms Penhaligon quickly responded to Ms Taylor’s cries for help.  She gave evidence that she found Ms Taylor in tears on the floor.  The chair was out of the cubicle.  In cross- examination Ms Penhaligon said she could not recall exactly where the chair was but she thought it was off the mat.  The employer’s counsel suggested to Ms Taylor that the chair had moved because she stood up and pushed it backward.  She agreed and said that she thought the back of her legs touched the chair.  Counsel then read out a note made by Ms Taylor’s doctor on the day of the accident.  The note recorded Ms Taylor’s statement that she slipped her buttocks off the edge of the chair.  Ms Taylor agreed that her buttocks must have touched the chair.

[7] The trial judge found that Ms Taylor was a credible and reliable witness and that her evidence was consistent and truthful.  The trial judge found that when Ms Taylor “attempted to resume her seat … the chair rapidly and suddenly moved from under her body causing her to fall to the floor”.  That rapid movement resulted from the mat underneath the chair being “dangerously slippery”.  The trial judge did not accept the employer’s contention that Ms Taylor simply slipped off her chair as a result of her own error of judgment.  The trial judge held that the doctor’s note was not inconsistent with Ms Taylor’s evidence that she was trying to resume her seat.  The trial judge also rejected the employer’s contention that it was reasonable for it to insist on use of the mat despite the complaint that it was dangerously slippery.  The trial judge reasoned as follows:[2]

“An employer is obliged to provide a safe workplace.  In satisfying its obligation in this regard, a reasonable employer ought to have regard to complaints made by employees as to the safety of equipment they are directed to use in the course of their employment.  Despite receiving complaints from two employees as to the use of the mats, and requests from those employees that they not be required to use those mats, the [employer] directed those employees, including [Ms Taylor], to continue to use those mats.  No evidence was led to suggest any investigation of the complaints was undertaken at all.  No reason was given to either complainant as to why they were required to use the mats.  According to [Ms Taylor], Ms Henderson simply indicated her orders were that all work stations were to be “the same”.”

[8] In challenging the trial judge’s decision that the employer was negligent, the employer pointed out that Ms Penhaligon did not give evidence that she told Ms Henderson that the suggested danger lay in the slipperiness of the mats.  The employer’s contention was that there was no evidence either that the mat was dangerously slippery or that the chair moved to any dangerous extent because of the mat.  The trial judge should have found that Ms Taylor was injured when she misjudged sitting on the chair and slipped off it.

[9] The trial judge’s findings depended in part upon the assessment of the oral evidence, which his Honour had the advantage of seeing and hearing as the trial unfolded.  The employer’s arguments do not justify this Court in disregarding those findings, particularly when it was not put to Ms Taylor that her evidence of the words used by Ms Penhaligon in complaining to Ms Henderson was incorrect, Ms Henderson was not called to rebut that evidence, the mat and chair were not tendered in evidence, there was no expert evidence to contradict Ms Taylor’s evidence of the propensity of her chair to move surprisingly rapidly over the mat, and there was no evidence to contradict Ms Penhaligon’s evidence that after the accident Ms Taylor’s chair was found off the mat and out of the cubicle.

[10]  The employer also argued that the trial judge erred in finding that the chair moved whilst Ms Taylor was attempting to resume her seat because Ms Taylor’s statement of claim, her counsel’s opening at the trial, and Ms Taylor’s evidence in chief, all suggested that the chair’s backward movement occurred whilst Ms Taylor stood up.

[11] Paragraph 8 of Ms Taylor’s statement of claim alleged that, “[e]ither during the course of [Ms Taylor] standing up from the chair or whilst [Ms Taylor] was standing, the said chair moved backwards on the said hard plastic floor mat.” Paragraph 9 alleged that after Ms Taylor looked at the map “[Ms Taylor] went to sit down but due to the chair having moved [Ms Taylor] fell to the floor and suffered personal injury, loss and other damage.”  As I construe the pleading it comprehended a scenario in which Ms Taylor inadvertently caused the chair to move by touching it with her legs as she stood up or after she had stood up from the chair.  Perhaps the pleading implicitly conveyed that the chair commenced to move before she commenced to sit, but there is only a very fine difference between that scenario and the facts found by the trial judge.  As to the opening, the employer relied upon senior counsel’s statements that:

“Ms Taylor will say that she is unable to say whether the chair had been removed from the position where it was when she stood up from it, as a result of its being propelled back through her standing action, or simply as a result of some kinetic energy which had been built up, or because it no longer had the force of her weight holding it down in that position. Regardless she went to sit down, she missed and she landed heavily on the ground.”

The suggestion that “kinetic energy” might have caused the chair’s movement was curious, but the opening did not confine Ms Taylor’s case to an allegation that the chair rolled away whilst Ms Taylor was in the process of rising from her chair.

[12]  In any event, the cause of the fall was thoroughly investigated in the evidence at the trial, particularly in a searching cross-examination of Ms Taylor.  There is no indication that the employer confined its investigation to the particular scenario which the employer contended was pleaded and opened, in which Ms Taylor inadvertently caused the chair to slide away whilst she was in the process of standing up, as opposed to some moments later.  The identification of the precise moment at which the chair slid away was not critical to her case or to the trial judge’s reasoning or conclusion.  Furthermore, the employer did not contend at the trial or on appeal that Ms Taylor was guilty of contributory negligence.  In these circumstances, acceptance of the employer’s pleading point would not of itself justify this Court in overturning the trial judge’s decision that the employer was liable.

[13]  I do accept that the pleading, the opening, and some parts of Ms Taylor’s evidence were consistent with a claim that her chair moved as she stood up.  On the other hand, the part of the opening quoted earlier and some of her evidence suggested, unsurprisingly, that she had no precise recollection.  In my view, Ms Taylor’s most reliable evidence, so far as that may be judged merely from reading the transcript, was the passage in which she said that she thought the back of her legs touched the chair and then agreed that her buttocks must have touched the chair, as was recorded in her doctor’s contemporaneous note.  That evidence, when it is read together with the evidence that the chair was apt to slide very rapidly over the mat and the evidence to the effect that immediately after the accident the chair was found as far away as off the back of the mat, suggests that the chair had not moved out of Ms Taylor’s reach before she commenced to resume her seat.  I am not persuaded that the trial judge erred in finding that the chair slid away whilst Ms Taylor attempted to resume her seat.

[14]  The employer pointed out that Ms Penhaligon conceded in cross-examination that she used her mat without incident, but Ms Penhaligon also gave evidence that the mats in place beneath the chairs can be “detrimental because the chairs can just slip quite easily.  It’s quite – if you don’t sit on your chair properly, just flick out from underneath you.  That’s what I believe anyway.”  The employer argued that the last sentence indicated that what went before was reconstruction and unreliable.  The trial judge was in a better position than this Court to assess the effect of that evidence, but in any event his Honour accepted Ms Taylor’s similar evidence about the “surprising” behaviour of the chair on the “extremely, extremely slippery” mat.  Contrary to one of the employer’s arguments, the trial judge did not reverse the onus of proof by remarking that the employer did not call any expert evidence in relation to the friction between the mat and the chair and that the mat was not tendered in evidence.  Expert evidence about the co-efficient of friction and its comparison with other cases was not essential for Ms Taylor to succeed in her claim.  The evidence adduced for Ms Taylor, including the evidence of the apparently unconsidered complaint about the dangerous slipperiness of the mat, sufficiently proved the narrow case which the trial judge accepted.

[15]  The employer contended that the trial judge failed to give reasons for rejecting the evidence of witnesses called by the employer, Ms Burchardt (the employer’s National Sales Manager), Ms Forster (National Manager, Corporate Systems, of company associated with the employer, JJ Richards and Sons Pty Ltd (“JJ Richards”), which occupied a neighbouring building), and Ms Bain (formerly employed by JJ Richards as Office Manager) that the mats were not slippery and did not pose a risk of injury.  It was submitted that their evidence was to the effect that they had all used the mats over many years and worked in places where the mats were in widespread use without ever suffering any similar incident themselves or hearing of such an incident.  Counsel for the employer argued that this evidence was essentially unchallenged, and that the employer was entitled rhetorically to ask why, in the face of that evidence, the trial judge concluded that the mats were unreasonably slippery.

[16]  Ms Forster and Ms Bain were employed by JJ Richards in the building adjacent to that in which Ms Taylor worked.  Ms Forster was not asked whether the office chairs in the adjacent building were the same as Ms Taylor’s chair.  She said of the mats used in the JJ Richards office that “they look very similar”.  Ms Bain said nothing about any such similarity and she was not asked whether the plastic mats used in the JJ Richards office were similar to the mat in Ms Taylor’s cubicle.  She gave evidence about the use of plastic mats in other workplaces but she was not asked whether those mats were similar to the mat used by Ms Taylor.  Ms Forster and Ms Bain gave evidence that they had not encountered difficulties with the plastic mats and had not heard of any complaints about them, but there was no evidence that any problems with the mats or injuries resulting from their use in the employer’s premises should be reported to them.  The evidence of these witnesses did not materially conflict with the evidence adduced on behalf of Ms Taylor about the behaviour of the chair on the mat in her cubicle or the evidence of the complaint made to her immediate superior, Ms Henderson. 

[17]  Ms Burchardt gave evidence that before Ms Taylor’s accident neither Ms Taylor nor anybody else had complained to her about the mats.  Again, however, there was no evidence of any practice or expectation that employees should complain to her about such matters, rather than to Ms Henderson.  This evidence did not conflict with the evidence of complaint to Ms Henderson, which the trial judge accepted.  The employer nevertheless argued that the trial judge’s reasons were insufficient, particularly because Ms Taylor’s evidence that she had complained to Ms Burchardt was not pleaded, opened, or adduced in evidence in chief.  So far as the appeal record reveals, such a complaint was comprehended by Ms Taylor’s statement of claim.  Ms Taylor pleaded that her personal injuries, loss and other damage were caused by the employer’s negligence or breach of contract in “failing to act on complaints that the chair was slippery when used in conjunction with the said plastic mat and when a reasonable prudent employer would have done so”.[3]  However, the opening and Ms Taylor’s evidence in chief referred only to a complaint to Ms Henderson and that may be taken as being Ms Taylor’s case about the complaint.  The trial judge accepted that case.  The evidence of complaint to Ms Burchardt emerged only in cross-examination.  Ms Taylor said that she told Ms Burchardt several times that she “hated the mats” and she adhered to that evidence in further cross-examination.

[18]  Ms Burchardt also gave evidence that she had used the same mat (meaning the same kind of mat) used by Ms Taylor for about 20 years and had no trouble with it.  She had not seen or heard of any other incidents with the mats.  When Ms Burchardt was asked what the surface of the mat was like she said, “I think it’s got a non-slip surface”.  She said the surface was rippled and she could not move her foot across the mat easily without pushing it.  There was no evidence that this test was indicative of the effect of friction between Ms Taylor’s chair and her mat, but I accept that Ms Burchardt’s other evidence about the behaviour of the chairs on the mats might have justified an inference that conflicted with the evidence adduced for Ms Taylor.

[19]  This Court has held in many decisions that the failure of a trial court from which an appeal lies to give adequate reasons amounts to an error of law.[4]  What is adequate must depend upon the circumstances of the particular case, including the nature and significance of the issues in question.  In a passage to which Muir JA referred in Drew v Makita (Australia) Pty Ltd,[5] Meagher JA observed in Beale v Government Insurance Office of New South Wales[6] that whilst the trial judge should set out findings as to how the judge came to accept one set of evidence over a conflicting set of significant evidence, “that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear”.  In the present case, the reasons for the findings about the behaviour of the chair on the mat in Ms Taylor’s cubicle are sufficiently clear.  The resolution of the conflicts in the evidence on that topic turned largely upon the trial judge’s assessment of the credibility and reliability of the witnesses since, as the trial judge remarked, the mat was not tendered in evidence and the employer did not call any expert evidence in relation to the friction between the mat and the chair.  There was no other evidence that assisted in the resolution of those conflicts or the conflict as to whether Ms Taylor complained to Ms Burchardt.  The trial judge did not overlook Ms Burchardt’s evidence.  His Honour referred to that evidence but accepted the evidence given by Ms Taylor, finding that she was a credible and reliable witness and that her evidence was consistent and truthful.[7]  The clear inference is that the trial judge considered that Ms Taylor’s evidence was more reliable than that given by Ms Burchardt.  Whilst it would have been preferable for that inference to be expressed in the reasons, the trial judge’s failure to do so did not in this case render the reasons inadequate.  The trial judge’s clear findings in favour of Ms Taylor’s and Ms Penhaligon’s evidence sufficiently explained his Honour’s conclusions.

[20] As I have mentioned, the employer did not contend that the trial judge should have held that Ms Taylor was guilty of contributory negligence.  The trial judge’s finding that the employer was liable should be affirmed.

Quantum

[21]  The components of damages in issue are past economic loss and future economic loss.

[22]  Ms Taylor was 38 years old at the time of the accident.  She suffered a fractured sacrum.  Whilst being treated in hospital she suffered an anaphylactic reaction to narcotic analgesia.  Her rehabilitation included physiotherapy, hydrotherapy and epidural injections.  An orthopaedic surgeon assessed Ms Taylor as having an eight per cent whole person impairment due to an associated injury to her lumbar spine and a further three per cent whole person impairment as a result of the injury to her sacrum.  Another orthopaedic surgeon assessed Ms Taylor as having a 10 per cent whole person impairment as a consequence of the fractured sacrum.  A psychiatrist diagnosed Ms Taylor as having an adjustment disorder with depressed mood and assessed her permanent psychiatric impairment as 10-20 per cent.  Another psychiatrist rated her degree of permanent impairment at five per cent whole person impairment.  There was no challenge to the trial judge’s findings that Ms Taylor suffered continuing pain and disability as a result of the accident which impacted on her ability to undertake employment and that she suffered ongoing psychological sequelae. 

[23]  The trial judge also accepted Ms Taylor’s evidence that she had thoroughly enjoyed her employment with the employer and had intended to make it her career.  After the accident on 8 May 2007 she received WorkCover payments apparently equivalent to her salary (which she was obliged to refund) until she ceased work with the employer on 11 January 2008.  She left her employment with the employer because the nature of her injuries, including her psychological sequelae, made it difficult for her to continue, particularly having regard to the necessary travel and the wide territory she was required to cover.  On 4 February 2008 she commenced employment of a similar nature with another company, “Fujinon”, where she remained until 5 December 2008.  Her income there was very similar to what she would have earned had she been able to continue working for the employer.

[24]  At the end of 2008 or early in 2009 Ms Taylor’s husband was offered a transfer within his employment in the Queensland Police Service to Cairns.  She moved to Cairns with him.  The trial judge accepted Ms Taylor’s evidence that it was a requirement of her employment with Fujinon that she had to stand for long periods in operating theatres where Fujinon’s equipment was being used in medical procedures, and that requirement made the employment difficult for her.  However, his Honour found that her husband’s transfer and the opportunity to make a “fresh start” in North Queensland was a “significant factor” in Ms Taylor’s decision to leave Fujinon and that should be taken into account when considering the extent of her past loss of income.  Ms Taylor commenced work as a sales assistant in Cairns in January 2009.  In June 2009 Ms Taylor separated from her husband and returned to Brisbane, where she formed a new relationship.  At the time of the trial she was employed in her new partner’s business in Brisbane as an administrative assistant.  One of her children was in Year 2 and another was in Year 5 at school and she was only prepared to work during school hours.  She gave evidence that this employment was ideal for her.  The trial judge accepted that Ms Taylor engaged in her present employment having regard to the “family friendly” hours and her new relationship and that, whilst Ms Taylor’s ongoing disabilities limited her employability on the open labour market, she would be able to generate significantly more remuneration than she achieved in her current employment.

[25]  At the trial Ms Taylor contended for past economic loss of $77,669, net of the amount received from WorkCover.  Ms Taylor’s case was that, but for the injury, she would have made a successful career as medical sales representative.  On Ms Taylor’s evidence, she was a valued employee.  Her case at trial was that upon her return from Cairns the employer probably would have re-employed her.  Ms Taylor argued that had she not been injured she would have generated gross income similar to that of a nominated person who worked for the employer in a comparable position.  With reference to that employee’s wage records, Ms Taylor claimed at trial that her undiscounted past economic loss was $110,931, being the difference between the income she would have earned ($226,184) and the income she did earn from personal exertion ($115,253).  She conceded that the loss should be discounted to reflect her voluntary sojourn in Cairns.  In relation to future economic loss she sought an assessment of $500,000 on the footing that she had a residual earning capacity of 40 per cent.

[26]  The trial judge considered that past economic loss was properly assessed on a global basis to have regard to the fact that the restrictions on Ms Taylor’s employability caused by her personal injuries denied her the opportunity to obtain employment at a greater income than that which she had obtained in Cairns and since.  His Honour held that the loss was no more than $400 per week and awarded past economic loss of $60,632.77.  That included lost income of $55,000 up to the date of judgment.  In relation to future economic loss, the trial judge found that Ms Taylor’s residual earning capacity was significantly more than the 40 per cent contended for on her behalf.  The trial judge again assessed Ms Taylor’s weekly loss at no more than $400 per week.  His Honour made a global assessment, allowing $400 per week for 24 years and discounting the gross amount for present receipt (applying an uncontentious rate of discount) and further discounting it by 10 per cent for contingencies, resulting in an assessed figure of $265,644.  Allowing for a future loss of contributions to Ms Taylor’s superannuation of nine per cent of that amount, the total future economic loss, including superannuation, was $289,551.96. 

[27]  The employer argued that the trial judge’s reasons were inadequate because they did not explain the derivation of the maximum weekly loss of $400 or the awards made by the trial judge for past and future economic loss.  The employer’s best point in that respect was that the trial judge did not state the period during which Ms Taylor incurred past economic loss in addition to the amount of the WorkCover benefits, but that period may be inferred from the reasons.  The trial judge accepted the employer’s argument that the income Ms Taylor generated with the employer was not substantially greater than the income she obtained with Fujinon.[8]  The inference is that the period during which Ms Taylor lost income from wages was the remaining 86 weeks between the end of 2008 and the date of judgment.  In other respects the trial judge referred to the critical aspects of the evidence and identified the factors which bore upon the assessments.  It must be borne in mind that the assessments of past and future economic loss in this case necessarily required something in the nature of jury awards.  Those assessments were incapable of precise proof and more detailed calculations would simply have misrepresented the degree of precision which was attainable.[9]

[28]  The employer contended that the past loss of income was no more than the WorkCover benefits received by Ms Taylor after the accident.  (The employer initially contended that the WorkCover benefits amounted to $30,638.56, but did not seek to controvert the concession subsequently made for Ms Taylor that, on the evidence, the WorkCover benefits amounted only to $23,511.00.) The employer argued that the diminution in Ms Taylor’s income in Cairns was not attributable to her injury because, regardless of her reasons for resigning from Fujinon, her move to Cairns was a result of her husband’s decision to go to Cairns.  There was no evidence that Ms Taylor’s injury prevented her from engaging in any employment proved to be available to her in Cairns.  Nor was there any such evidence in relation to Ms Taylor’s employment after her return to Brisbane.  The employer also argued that the trial judge’s assessment in fact represented a weekly loss of $640, rather than the $400 postulated by the trial judge, for the 86 week period between Ms Taylor’s resignation from Fujinon and the date of judgment.  The employer emphasised the evidence that Ms Taylor’s income was limited by her desire to care for her two young children and that her subsequent employment in Brisbane was “perfect” in light of her preparedness only to work during school hours. 

[29]  The employer’s arguments do not justify this Court in interfering with the trial judge’s award.  The unchallenged finding was that Ms Taylor’s ongoing disabilities limited her employability on the open market.  The award was not precluded by the absence of evidence of specific employment that Ms Taylor might have obtained but for her injuries, although such evidence would have strengthened the claim.  The arguments concerning Ms Taylor’s young children were relevant to the extent to which the diminution in her earning capacity was reflected in economic loss, but, on Ms Taylor’s evidence, it must also be borne in mind that when her children were even younger she had embarked on an apparently successful career with an employer who regarded her as a valuable employee.  Her evidence about her attitude to her current employment concerned her changed situation after she had been injured.  Furthermore, the argument that Ms Taylor’s husband’s transfer to Cairns was the sole cause of Ms Taylor’s resignation from Fujinon implicitly challenged the trial judge’s finding that the transfer was “a significant factor” in Ms Taylor’s decision to resign from that employment.  There is no ground for setting aside that finding.  It reflected Ms Taylor’s evidence that she and her husband made the decision to move to Cairns together in light of the circumstances “that we’d been through” and “to just have a fresh start”, which encompassed her evidence of the serious difficulties she had in coping with the work at Fujinon. 

[30]  Contrary to another of the employer’s arguments, the lost income assessed by the trial judge does not represent a weekly loss of $640.  The loss of income of $55,000 included the WorkCover payments which Ms Taylor was paid after the accident rendered her unfit for work and which she was obliged to refund.  Accordingly, the trial judge’s assessment represented lost income for the 86 week period of $31,489 ($55,000 - $23,511).  That equated to a weekly net loss of about $366.[10]  That was less than the maximum possible weekly net loss of $400 and it may be contrasted with the weekly net income of more than $1,000 which, on the evidence, Ms Taylor might have earned had she remained with the employer in the same period.  It is apparent that the trial judge’s estimate of Ms Taylor’s past loss of income involved very substantial discounting of the notional income she might have earned.  The award was quite moderate and it has not been demonstrated that there was any error such as would justify this Court’s interference. 

[31]  The employer also contended that there was no basis for the assessment of the future economic loss at no more than $400 per week or that the assessment was excessive, particularly because there was no evidence that Ms Taylor could not work as a medical representative and she had managed to do so during her employment at Fujinon.  In my respectful opinion, there is also no ground for interfering with this award.  Dr Wallace, whose views as to the restrictions on Ms Taylor’s future employability the trial judge accepted, considered that Ms Taylor’s employability on the open labour market had been significantly adversely affected.  Dr Wallace’s opinion was that she could not work in her previous occupation as a hairdresser, and, as I have mentioned, the trial judge also accepted Ms Taylor’s evidence about the difficulties she had in continuing her work with the employer and Fujinon.  The evidence suggested that were Ms Taylor still employed by the employer she might currently be earning about $1,400 net per week.  It is again apparent that the trial judge very substantially discounted Ms Taylor’s claim to take into account the matters upon which the employer relied.  The trial judge’s global assessment was by no means extravagant.  I see no ground which would justify this Court in setting it aside.

[32]  I would reject the employer’s challenges to the trial judge’s assessment of Ms Taylor’s damages. 

Proposed order

[33]  The appeal should be dismissed with costs to be assessed on the standard basis.

[34]  CHESTERMAN JA: I agree with the orders proposed by Fraser JA for the reasons given by His Honour.

Footnotes

[1] Taylor v Invitro Technologies Pty Ltd [2010] QSC 282.

[2] Taylor v Invitro Technologies Pty Ltd [2010] QSC 282 at [22].

[3] Statement of Claim, paragraph 10(i).

[4] See, for example, Drew v Makita (Australia) Pty Ltd [2009] QCA 66; Littlejohn v Julia Creek Town and Country Club Inc [2010] QCA 361.

[5] [2009] QCA 66 at [63].

[6] (1997) 48 NSWLR 430 at 443-444, with reference to Selvanayagam v University of West Indies [1983] 1 WLR 585 at 588.

[7] Taylor v Invitro Technologies Pty Ltd [2010] QSC 282 at [14], [18].

[8] Taylor v Invitro Technologies Pty Ltd [2010] QSC 282 at [44]. The terms of the finding reflected the submission for the employer that Ms Taylor “had very little, if any, loss at Fujinon”.

[9] See McDonald v FAI General Insurance Co Ltd [1995] QCA 436 per Thomas J at pp 5-7.

[10] If the employer’s initial contention that the WorkCover benefits amounted to $30,638.56 were accepted, the net weekly loss over this period would have amounted to approximately $283.

Close

Editorial Notes

  • Published Case Name:

    In Vitro Technologies Pty Ltd v Taylor

  • Shortened Case Name:

    In Vitro Technologies Pty Ltd v Taylor

  • MNC:

    [2011] QCA 44

  • Court:

    QCA

  • Judge(s):

    Muir JA, Fraser JA, Chesterman JA

  • Date:

    15 Mar 2011

Litigation History

Event Citation or File Date Notes
Primary Judgment [2010] QSC 282 30 Jul 2010 -
Appeal Determined (QCA) [2011] QCA 44 15 Mar 2011 -

Appeal Status

{solid} Appeal Determined (QCA)