Beck v Rowe Enterprises (Qld.) Pty. Ltd.
[1998] QCA 115
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- Beck v Rowe Enterprises (Qld.) Pty. Ltd.[1998] QCA 115
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Beck v Rowe Enterprises (Qld.) Pty. Ltd.[1998] QCA 115
Beck v Rowe Enterprises (Qld.) Pty. Ltd.[1998] QCA 115
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2220 of 1997
Brisbane
[Beck v. Rowe Enterprises (Qld) P/L & Anor.]
BETWEEN:
JOHN GREGORY BECK
(Plaintiff) Appellant
AND:
ROWE ENTERPRISES (QLD.) PTY. LTD.
ACN 010 637 073
(First Defendant) First Respondent
AND:
PANCONTINENTAL RESOURCES (BASE METALS) PTY. LIMITED
ACN 004 797 335
(Second Defendant) Second Respondent
McPherson J.A.
Thomas J.
Lee J.
Judgment delivered 2 June 1998
Judgment of the Court
APPEAL DISMISSED WITH COSTS
CATCHWORDS: CIVIL - PERSONAL INJURIES - Assessment of damages for past and future economic loss - absence of calculations by which trial judge made assessment - absence of concrete evidence whether appellant had ever taken steps to arrange work overseas.
Elford v. FAI General Insurance Co. Ltd. [1994] 1 Qd.R. 258.
Counsel: Mr. J. R. Webb for the appellant
Mr. R. C. Morton for the respondents
Solicitors: Deacons Graham & James, town agents for Barrett Wherry, for the appellant
McInnes Wilson & Jensen, town agents for Roberts Leu & North, for the respondents
Hearing Date: 21 May 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2220 of 1997
Brisbane
Before McPherson J.A.
Thomas J.
Lee J.
[Beck v. Rowe Enterprises (Qld) P/L & Anor.]
BETWEEN:
JOHN GREGORY BECK
(Plaintiff) Appellant
AND:
ROWE ENTERPRISES (QLD.) PTY. LTD.
ACN 010 637 073
(First Defendant) First Respondent
AND:
PANCONTINENTAL RESOURCES (BASE METALS) PTY. LIMITED
ACN 004 797 335
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 2 June 1998
This is an appeal from a judgment in the Supreme Court in an action by the appellant against the first respondent, who had been his employer, for damages for personal injuries sustained in the course of his work. Judgment was given for the plaintiff for $200,816.64, after deducting workers’ compensation payments amounting to $53,238.73 from a total award of damages assessed at $254,150.37. The appeal challenges as inadequate only the assessment of $55,000.00 in respect of past economic loss, and $135,000.00 awarded in respect of the future.
The plaintiff was 31 years of age when he was injured on 27 April 1992 while working as an underground driller in a mine at Charters Towers owned by the second defendant. A piece of rock fell from the ceiling of the mine in which he was working, and struck his hand fracturing bones in his right wrist. He underwent surgical treatment involving removal of bone and fusion of the distal radius ulnar joint, with the result that he has been left with a permanent disability of the order of a loss of 10 to 15 per cent of function of the right arm. His post-accident work history is that he returned to drilling in July 1993 and worked for Silver City Drilling until December 1993, when pain forced him to stop work. In July 1994 he again obtained employment, this time as drilling supervisor with Ausdrill, where he worked for a year or more, until the pain again became too severe. In effect, therefore, he claims for some three years pre-trial earnings out of five since the accident occurred.
At the trial, the learned judge was satisfied that the effect of the injury and disability was to preclude the plaintiff from ever working again as a driller. It did not, his Honour considered, prevent him from working in a supervisory condition in the industry; but employment of that kind is not readily available, and it also involves a significant degree of heavy work. In consequence, the impact of the disability sustained was found by his Honour to have resulted in what he described as “substantial loss”, which he said should not, at least in respect of the claim for past economic loss, “be the subject of heavy discounting”. Having regard to these general findings, it was submitted on appeal that the amount assessed for economic loss, particularly in the pre‑trial period, was seriously inadequate.
In making the assessment, his Honour did not, to use the appellant’s phrase, expose the calculations by which he arrived at the assessment, which was a further source of complaint on the appeal. There was, however, a series of factors, more or less imponderable, that justified departure from such an approach in the particular circumstances of the plaintiff’s claim. One was that, although before the injury the plaintiff had at times been employed as a driller earning substantial income, the industry, which was “notoriously volatile”, had his Honour considered been undergoing “something of a boom”. There was evidence from a principal officer of the first defendant that the plaintiff’s employment with that party was not likely to have continued for much longer, and it was improbable that the defendant would have employed the plaintiff for significant periods. The work he was doing was hard, and it was carried out in a harsh environment; and, although the appellant was young and had a young family to support, it was, his Honour found unrealistic to assess the damages on the basis that he would have continued to work in this calling indefinitely; or, having regard to his pre‑accident history, on the basis of a full 52 weeks in every year. There was also evidence that those employed as drillers tended to be young men, who did not continue working in this occupation for very long after reaching the age of about 30 or so.
Much was made on appeal of evidence that there was a demand for workers with the appellant’s skills in places abroad, such as Chile, where it was said to be possible to earn substantially higher incomes that were free of income tax, presumably both under Chilean and Australian law. The appellant said that, before the accident, he had had it in mind to go and work there, and, despite his being married with two very young children, his wife gave evidence that she supported this proposal. If accepted as a substantial prospect, it would no doubt have significantly increased the award in respect of future economic loss. The obstacle to its acceptance is, however, that at the trial the evidence on the subject was vague and consisted mainly of hearsay. No proper basis was shown for the conclusion that income derived from such a source would in law have been tax-free. There was a complete absence of any concrete evidence that the plaintiff had ever taken any steps to arrange to work overseas, or even to make detailed inquiries about conditions there with a view to doing so. As a result, it would not have been legitimate to make an assessment, particularly with reference to the future, which was based on any precise calculation of earnings likely to be received from working overseas. Rather this factor fell to be assessed in a moderate way as a lost opportunity of earning additional income at a higher rate, which is the character in which his Honour evidently approached it. In the light of these considerations, it cannot be said that the award in respect of future economic loss is demonstrated by the appellant to have been erroneous.
With respect to both past and future loss, it was and is necessary, to weigh against the identifiable loss-producing factors the countervailing impact of alternative income-earning activities of which the plaintiff was capable. The trial judge was impressed with his drive and initiative, which had been demonstrated in the past. The plaintiff had conducted a successful pest control business for some years beginning in or prior to 1990, which was before the accident giving rise to the claim, and it had returned to the plaintiff a gross income of $24,826.00 for the 1990 financial year. This represented the appellant’s own share of the income derived from a partnership that was then being carried on in conjunction with his wife. More recently, he has been conducting a similar business in partnership with a Mr Klein. There was a conflict between the accountancy witnesses called at the trial by either side; but, based on the figures for the first year of the business, a weekly income of $400.00 or $380.00 net after tax was projected by Mr West, who was the accountant who gave evidence on behalf of the plaintiff. Mr Coco, who was the accountant for the defendant at the trial, was inclined to put the potential future earnings from the business at a substantially higher level.
It is at this point that the absence of any precise calculation of the plaintiff’s weekly loss is most acutely felt. We were pressed on behalf of the appellant to adopt a weekly figure as high as $840.00, and then apply to it a discount of 25%; but $840.00 per week with Silver City Drilling was the highest rate at which the plaintiff was shown ever to have earned, and, when income tax is deducted, it reduces to a weekly average of about $656.00. Similarly, although the plaintiff’s average weekly earnings as supervisor with Ausdrill in 1994/95 were stated to have been $817.00, his 1996 tax return discloses a net weekly income for only part of that period amounting to some $600.00 or slightly less.
On this footing, it might be possible to arrive at a total past loss arising from inability to work as a driller during a pre-trial period of three years that amounted to some $90,000.00 or a little less. That total would however, fall to be reduced by the income received from the pest control business during that period, to produce a figure of approximately $76,000.00. To regard this as representing the recoverable pre-trial economic loss is, however, to assume he would have worked as a driller for every week of a 52-week year, which is contrary to the plaintiff’s pre‑accident work history. Some further scaling down of the award under this head would therefore be required.
After everything has been said, the impression remains that the amount of $55,000.00 assessed as compensation for past economic loss might possibly have erred on the low side to the extent perhaps of some or a few thousands of dollars. However, even if that conclusion were to be accepted as correct, it is, in the context of an award amounting in all to some $250,000.00, not sufficient to justify intervention on appeal by this Court acting on the principles laid down Elford v. FAI General Insurance Co. Ltd. [1994] 1 Qd.R. 258.
It follows that the appeal should be dismissed with costs.