Queensland Railways v Ewart[1997] QCA 361

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

BrisbaneAppeal No. 245 of 1997

[Queensland Railways v. Ewart]

BETWEEN:

QUEENSLAND RAILWAYS

(Defendant) Appellant

AND:

GRAHAM PETER EWART

(Plaintiff) Respondent

 Davies JA

 McPherson JA

 Derrington J

Judgment delivered 21 October 1997

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS: DAMAGES - General - respondent unable to work - whether sufficient allowance made for developing pre-existing disability that would have excluded heavy work and forced early retirement from current job and produced some of symptoms now suffered from injury - whether award of general damages excessive.

DAMAGES - Loss of future earning capacity - whether sufficient allowance for effect of pre-existing condition - whether former expected capacity to perform light work after retirement excessively compensated for - whether light work would have been available - whether expected age of retirement from current job wrongly delayed.

DAMAGES - Griffith v.  Kerkemeyer - whether sufficient allowance made for future care which respondent would have required in any case.

Counsel: Mr R Douglas QC for the appellant.

Mr S Jones QC with him Mr C White for the respondent.              

Solicitors: Minter Ellison for the appellant.

Spina Kyle Roati for the respondent.

Hearing date: 12 September 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 245 of 1997

Brisbane

Before Davies JA

McPherson JA 

Derrington J

[Queensland Railways v. Ewart]

BETWEEN: 

QUEENSLAND RAILWAYS

(Defendant) Appellant

AND:

GRAHAM PETER EWART

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 October 1997

The respondent/plaintiff was employed by the appellant as a ganger when he was injured on 24 September 1990.  He was then 40 years of age and was 46 years at the date of trial.  In participating in the lifting of a heavy length of rail, he seriously injured his back and legs, particularly his left leg.

Liability was admitted by the appellant and the respondent’s damages were assessed at $928,679.  After the deduction of $68,499.59 in respect of workers’ compensation already paid to the respondent, judgment was entered in the sum of $860,179.41.

The appeal is directed at the following components of that award

General damages $80,000

Future economic loss (including superannuation entitlements) $200,000

Future domestic assistance $130,000

General Damages

The following extract from the judgment describes the plaintiff’s pain and suffering flowing from his injuries:

“The plaintiff was attending a course at Rockhampton when he was injured.  He continued the course although in considerable pain, and took painkilling tablets to enable him to do so.  He thought at the time he had pulled a muscle in his back.  On completion of the course he returned to Homestead and during this time was experiencing a burning sensation in his back relieved by rest but which returned on resuming activity.

He commenced his annual leave on 8 October and because of the constant pain he was experiencing in his back, attended at the Charters Towers Hospital when he returned on 29 October 1990.  The history of the plaintiff’s admissions to hospital appear also in Exhibit 1 and in particular from paragraphs 16 onwards.

The plaintiff was referred to Dr Low, an orthopaedic surgeon who saw him for the first time if I understand matters correctly, in January 1991.  A discogram was performed which showed a transitional lumbo sacral vertebra with the first unprotected segment above that, disrupted.  The disc was torn and pressing on the L5 nerve root and at that time a fusion was performed.  This occurred in January 1991.  The nature of the fusion was described by Dr Low as a 360 degree spinal fusion.  The plaintiff obtained some significant relief as a result of this but the pain reappeared and his condition deteriorated.

The plaintiff had been immobilised for a substantial period, the details of which appear in his statement and also in reports of Dr Low.  At some time after he was referred to Dr Low and he had the fusion performed, he complained of symptoms in his knee joints.  The precise cause of these has been the subject of considerable debate amongst the medical witnesses who gave evidence.

The plaintiff was readmitted on 3 November 1991 when the plates which had been inserted in his spine were removed.  At the same time he underwent arthroscopies of both knees.  These were performed by Dr Low.  Dr Low decided to perform a patellectomy on the left knee and this occurred in April 1992.

It appears that over a period of time the fusion mass at the level of the lumbar spine, where it had been performed, migrated up to the next vertebra, and in consequence Dr Low decided to perform a further fusion.  This was performed earlier this year, and the plaintiff again has obtained some benefit in terms of reduced pain levels from this, but continues to suffer nonetheless from substantial pain in this area.

Following the patellectomy, the plaintiff’s knee joint became infected and this has resulted in considerable damage and substantial permanent disability to the left joint.  The plaintiff is mobile but uses a wheelchair from time to time.  He gave evidence before me sitting in a wheelchair although he on occasions stood.  The use of the wheelchair is, I am satisfied, a reasonable course for him to take.  It is likely that his knee joints will deteriorate and he may require knee replacement procedures of other measures to reduce the level of pain in his joints and also in his spine.  The plaintiff, I am satisfied, is substantially disabled and is permanently unemployable.

As to the respondent’s future pain, suffering and disability, His Honour found as follows:

“I accept that the plaintiff’s condition will slowly deteriorate and that it is not unreasonable of him to use a wheelchair, and that it is likely he will increasingly do so.  As I have said, it may be that he will have to undergo knee replacement procedures.  It is difficult to see how, on the findings I have made, any replacement of the right knee joint is ascribable to the defendant.  On the other hand, it may be that the increasing levels of pain which he suffers will be able to be addressed in other ways.”

At the trial the appellant sought to have the damages limited on the basis that the pre‑existing condition of the respondent’s back and knee joints predisposed him to further natural degeneration which, it was argued, would in any case have produced all or most of the symptoms which he is now experiencing with a consequential loss of earning capacity.  As to this, His Honour said

“I accept, as I have said, that the plaintiff had not by the time of the accident manifested any significant symptoms in the spine, and any symptoms in the knee joints.  However, I also accept that it is likely, given the work which the plaintiff was doing, that with the passage of time, he would have developed symptoms in the spine, which ultimately would have limited his capacity to perform that type of work, and that he also would have developed symptoms in the knee joints which, though I think less likely than his back to have limited his activities as a ganger, pose the risk that this would occur.  In any case, I am satisfied that he would not have been likely to work until a normal retirement age in the work that he was engaged in at the time of the accident.

As I have said, it is likely that with the changes in the defendant’s organisation, the work which the plaintiff had been doing would have become somewhat less arduous, which would, in consequence, have resulted in his being able to continue somewhat longer in that work than would have been the case had those changes not occurred.

Whilst I have found that the plaintiff would, in any case have deteriorated as a result of the two conditions that I have referred to, that is his spinal condition and the condition of his knees, I do not think there is any basis for concluding that it is likely that the plaintiff would have found himself in the position that he currently is, with the needs to which that condition gives rise, although some allowance has to be made for the risk that he may have had some needs, such as in relation to pharmaceutical expenses and other types of expense associated with his deteriorating condition.”

His Honour found that prior to the injury the plaintiff had not exhibited any serious back problems although he had on occasions complained of some symptoms which led to his seeking treatment.  Significantly there were no signs of any marked degeneration.  He also found that the pre-accident condition of the respondent’s knees was congenital, but that the symptoms in them that he suffered after the accident were produced by his prolonged immobilisation during his convalescence and that the permanent consequences, at least so far as the left leg is concerned, are ascribable to the consequences of the appellant’s negligence.  The development of the symptoms and the production of those symptoms in his right leg, at least for some time, should be regarded also as ascribable to the appellant’s negligence.

The most serious aspects relating to the respondent’s pain and suffering are the major surgery on his back, the minor surgery on his knees, the major surgery on his left knee, the prospects of future serious surgery, and his continuous pain and substantial disability.   At his age he has a reasonably long life expectancy, so he will suffer his pain disability and loss of amenities of life for a relatively lengthy period.  Together, these factors were of such magnitude as to call for a substantial award.  His Honour apportioned half the assessed loss to the six year period to the date of trial, no doubt because of the substantial major surgery with associated pain and distress that took place within that period.

That some of his symptoms and disability would have occurred naturally must be taken into account, but His Honour did this, and he was justified in awarding a large sum under this head.  Having regard to the grave consequences of the relevant injuries upon the plaintiff’s life and the length of time for which he will have to endure them, the award, though modestly generous, is certainly not manifestly excessive.

Future Economic Loss

The award of $200,000 under this head includes a component of about $25,000 to $30,000 for loss of superannuation benefits, so that the respondent’s  loss of earning capacity apart from that factor attracted an award of about $170,000 to $175,000. 

The accepted medical evidence said that he now is totally incapacitated for work, but that if he had not been injured  he would have been forced to retire from his job as a ganger prematurely because of his pre-existing condition.  However, he would still have been fit to undertake light work.  There was some imprecision as to when that retirement from his job was likely to have occurred.  He may then have been able to find light work with the appellant, but he would not have been confined to that and may have found it elsewhere.  However he was untrained for other than railway work and if he had not been employed by the appellant, he would have been confined to unskilled jobs and would not have been an attractive employee.  Because these hypothetical future matters and their details are not easily predictable, they can be approached only in the broad fashion taken by His Honour.

The principal issues here are the age at which the respondent would have been forced to retire from his then position, and the extent to which he would have been able to find light work after that.  As to the first, the appellant complains of His Honour’s finding that the age at which the respondent would probably have been obliged to leave his job as a ganger was somewhat greater than the range of forty five to fifty years that had been opined by Dr Douglas when he prepared his medico-legal report.  There was other evidence from a number of specialists based on the changing nature of the tasks associated with the position of ganger that tended to enlarge this period, and His Honour was justified and indeed obliged to take it into account.  In addition, because of the difficulty of forecasting these things and because of the imprecise effect of  other considerations bearing on the question, a wide range of results was open that depended upon the relative strength of His Honour’s perception of them.

As it turned out, other than as indicated above he did not make a specific finding as to the approximate age to be used for the calculation of the loss.  Instead he looked at the present value of the plaintiff’s loss on the basis that he had remained in his job until the age of sixty five, and then he discounted it heavily to make allowance for all the countervailing factors.  The appellant says that if this is checked by the better alternative method of taking the present value of that loss to the age when he would have had to leave his job, adding an appropriate figure for the present value of the loss of earning capacity in light work after that (which the appellant argues is virtually nil), and making suitable adjustment for contingencies, it will be found that His Honour allowed for the respondent’s working as a ganger until well past the age justified on any of the medical evidence.   It is therefore useful to compare the award with the results of some selective exercises based on the respondent’s wage rate at the time of injury.

On the hypothesis that he had not been injured by the appellant, if he had been able to work in his former occupation to the age of 55 years, the discounted figure to reflect the post-trial loss at that time would have been $149,759.  This means that if he had adopted that age as appropriate, His Honour’s award would have included a further figure of about $25,000 to compensate the respondent for the discounted value of his lost earning capacity for light work after the age of 55.

The present discounted value of a loss of every $100 per week to a person aged 55 years until the age of 65 years is $41,300, but that loss would not have begun for another nine years.  If a deduction is made for the accelerated receipt of the damages and for the negative contingencies of life, on the one side, and, on the other, for the positive contingencies, particularly that he may have earned much more than $100 per week on the average, it will be seen that a substantial  sum for this part of the loss could be justified.  It should be remarked that the adverse contingencies such as early death are usually more likely to occur in this period, and as the earnings at that time are assumed to be smaller than for the earlier period, the amount of the deduction for this factor is appropriately limited.

The result of the adding together of the loss of these two periods could justify a total figure well in excess of the award, but that is to be expected because of the age of retirement from his job that was assumed.  A suitable reduction would produce a result within a fairly close range of the award.

As it will be seen from the alternative exercise that follows, if the age of assumed retirement were lower, the figure for the first part of the calculation would be lower, but the reduction for discounting is limited because the years that disappear are at the end of that period.  Conversely, if that adjustment is made, the figure for the loss of earnings from light work would be larger, first because the period covered would be longer and secondly because the additional years would be at the commencement of that period, when the discounting is less effective.  Moreover, if the respondent had to leave employment with the appellant at the earlier age, his chances of finding permanent light work may have been enhanced, and his incentive to obtain light work would have been stronger.

However, the overall effect of this downward adjustment of the age adopted for the exercise would probably be to reduce the resulting sum because of the greater certainty and amount of his wages associated with his assured job as a ganger as compared with those to be expected from the light work that he would have been obliged to find.  As against that, because his natural physical deterioration would probably have been slow and gradual with no dramatic cut-off point, he would have been able to seek permanent light work, both within and without the Department, for a long time before leaving his job as a ganger, which also would have enhanced his chances of finding it.  This could make the modest figure of $100 per week, referred to in the above exercise in respect of those earnings, seriously inadequate. 

With these considerations in mind, it is convenient now to consider the alternative exercise in which the respondent’s leaving his job as a ganger at the age of fifty will be assumed.  The present value of his loss to that time is $74,702.00.  The present value of a further loss of $100 per week for fifteen years is about $55,000 but this should be reduced because its receipt is accelerated by four years, and so a figure of about $40,000 should be adopted for this calculation.  Excluding higher earnings, which will be mentioned separately, a deduction for the contingencies of life during the later period would produce a figure of about $35,000.00.  The total would then be $110,000.00.   If the rate of earnings from light work were increased by a suitable amount to allow for the strong chance that his average earnings in the latter part might exceed $100 per week, then the figure for that period would be proportionately higher, with an increase in the total by that amount.  For example, an increase to $200 per week would raise the total to $145,000.00.  Of course, if the age of retirement from his job as a ganger were later than fifty, the total would be  larger still.  Again His Honour’s award will be seen to be within the permissible range.

As to the second issue under this head, the appellant does not complain of the finding that the respondent is presently incapable of performing even light work, but argues that if he had not been injured, because of his age and his incapacity from natural degeneration of his back and knees, although he would have been able to do it, it is unlikely that he would have been able to obtain light work at all;  alternatively that it would have been minimal and plainly insufficient to justify what His Honour must have awarded for its loss.

Support for this view is advanced only by reading too much into the evidence of the Department to the effect that it has no formal arrangement for the special creation of a category of light work within its enterprise.  That does not say that there are not a number of light jobs available, and in an institution as large as the Railway Department it is to be expected that there would be some such jobs available that the respondent could have performed.  Because of the slow advance of his condition he could have made application for them over a period of time  as they became vacant, which would have increased his chances of finding one, and with his proven capacity for responsibility and his knowledge of its workings, it is likely that he would have enjoyed some preference by the appellant.  Had this happened, the award should have been higher than that made by His Honour, but allowing suitably for the adverse chances would reduce it to the range of His Honour’s figure.

In addition, the appellant’s proposition fails to allow sufficiently for the positive chances in the respondent’s pursuit of light work outside the Department.  While he may have had some difficulty in finding it, again that is mitigated by the period of time in advance of his leaving his job as a ganger during which he would have been able to search for it. 

The suggestion that he would not have been able to find work at all does not allow for his natural commitment to work which took him to the modest but still responsible position of ganger, nor does it take into account the personal demands that may have driven him to strive harder to find work.  Further, it assumes that the present shortage of light work will still prevail at that time, which is far from assured.  These are all somewhat speculative, but they are realistic chances that have to be taken into account in the assessment of this hypothetical situation. 

If all these countervailing matters are approached objectively and due allowance is made for the positive chances as well as the negative ones, then the allowance that His Honour must have made for future earning capacity during this period will be seen to be limited and reasonable.  Because his global assessment of these competing factors is within the range of what might reasonably have been adopted,  the argument that the result is excessive cannot succeed.

The Griffith Kerkemeyer award

The last component of the award subjected to criticism is the allowance of $130,000 under the Griffith v. Kerkemeyer principle for future personal care.  The point of criticism is that no or insufficient allowance was made for that part of the care included in the award which the respondent would have required in any case because of his natural degeneration of his back and legs.  However, His Honour expressly modified the award for this, and it has not been shown that the allowance that he made was inadequate.  It could not have been a major factor since the medical evidence indicates that he would have been able to perform light work and the best that the appellant could suggest in argument was a need for some massaging of his back and legs from time to time.  It is certainly not demonstrated that this was not adequately applied.

Summary

In the result, the grounds of the appeal have not been established in respect of any component, and even if there were some arguable areas, the amount involved could not be so substantial as to permit the total award to be regarded as excessive:  cf.  Elford v. FAI General Insurance Company Limited [1994] 1 Qd.R. 258.  The appeal should therefore be dismissed with costs.