Queensland Rail v Richards[1999] QCA 471

PINCUS JA:  This is an appeal against an assessment of damages in a personal injury case, the appellant complaining that the assessment was excessive.  It is not in dispute that the respondent suffered an injury to his left wrist while at work on 12 May 1993, having previously suffered an injury in the same area 10 months before. 

The appellant was liable to compensate the respondent for the second injury, but not for the first which had nothing to do with his work.  The problem for the Judge, in outline, was that there were differing medical opinions as to the extent to which the disability after the second injury suffered by the respondent was due to the second injury as opposed to the first injury.  The appellant argues that the primary Judge wrongly assessed the reliability of the evidence of the doctors.  Apart from that, there are other complaints about the assessments, which I will deal with shortly. 

It must be said, at the outset, that the summary of the argument presented by the appellant says that this Court is in as good a position as the learned trial Judge was to deal with the medical evidence as to the impact of the first incident.  That appears to me not to be so.  The case is one in which three doctors gave oral evidence, either personally or by telephone, and one would expect that the conclusions the Judge reached must have been influenced by his impressions of that oral evidence.  The appellant's counsel below attacked the credibility of Dr Graham, whom the Judge accepted, on the basis that he was an advocate on behalf of the respondent.  His Honour rejected that contention, remarking:

"Dr Graham was patently convinced that his opinion was the correct one and expressed himself forcefully but I did not consider him to be partial."

The task which the appellant has, in attempting to achieve the rejection of the evidence of Dr Graham and the acceptance of the other two doctors, Drs Morgan and Millroy, is a formidable one.

The work injury was suffered when a railway sleeper, which was tossed on top of other sleepers, rolled back towards the respondent, who threw up his left arm to stop it.  The sleeper struck his left wrist, causing him pain.  He was taken to hospital where he was told that the wrist would heal but two weeks later, still in pain, was sent to Dr Graham who is an orthopaedic specialist.  After conservative treatment failed to resolve the problem, Dr Graham operated on the respondent on 10 August 1993, some five months after the work injury.  At the operation, the distal radial ulnar joint was fused, restricting movement and strength in that wrist.

The Judge found that there is tingling or ache present most of the time, aggravated by weather, by use of the wrist, or by bumping it.  His Honour was of the view that this had prevented the respondent from engaging in active work, sport or other pastimes in which his wrist was involved, or could be bumped.  The Judge assessed damages on the basis that the respondent's earning ability has been severely affected.  Mr Hastie, who appears for the appellant, does not dispute that the earning ability was significantly affected but he contends that the Judge took too pessimistic a view of the respondent's employment prospects.

In the first wrist injury, which occurred, as I have said, some 10 months before the work injury, the respondent was thrown by a bull at a rodeo and broke his left wrist.  He spent six weeks in plaster but the ulnar styloid, which is a protrubrance of the ulna, remained displaced.  The wrist remained painful and the Judge found that this was constant but not disabling, more of a nuisance than a disability.  The respondent went back to work and continued with little difficulty until the accident of 10 May 1993.  On one or two occasions he jolted his wrist and took a couple of days off work.  The Judge accepted, however, that the respondent was able to hold down a heavy labouring job satisfactorily for 10 months before the work injury. 

A central point of disagreement, between Dr Graham on the one hand and Drs Morgan and Millroy on the other, was the cause of derangement of the fibro cartilage between the distal ends of the radius and ulna.  Dr Millroy made a report in 1998, which was a long time after these incidents, saying that the first injury was the major cause of persisting disability. 

When Dr Millroy gave evidence, by telephone, he adhered to the view that the major cause was the first injury.  However, the Judge did not find his evidence of assistance, his Honour saying that Dr Millroy himself emphasised difficulties he had in giving an opinion.  The doctor had never seen the respondent but he advised on the basis of reports and, it appears, other documents sent to him.  An answer which Dr Millroy gave about the effect of the first injury was as follows:

"Oh, very difficult for me to speculate on that I think, not having seen him and not being aware of the full history and examination, I don't think I can make a fair comment on that probably."

And in response to a further question about the significance of the first incident as opposed to the second in relation to the injury to the fibro cartilage, the doctor answered:

"Well, I expect that the evidence is that the first injury is the more severe injury."

These reservations, which Dr Millroy expressed or implied with commendable candour, did not require that the Judge prefer the evidence of the treating doctor over that of Dr Millroy but they gave a rational ground for doing so.

The Judge regarded Dr Graham as having an advantage over Dr Morgan in that Dr Morgan had seen the respondent only once, three years after the work injury, whereas Dr Graham had seen him on many occasions and operated on his wrist three times.  Again, that would not necessarily require acceptance of Dr Graham, but the Judge obviously found his evidence convincing.  There does not appear to me, then, to be anything in the argument that the Judge was obliged to reject Dr Graham or indeed to reject anything of what he said.  This was classically a matter in which one must respect the opinion of the trial Judge, who heard the witnesses' evidence, there being no identified error in the Judge's reasoning.

It is also asserted, however, that in any event the economic loss allowed was too great.  There was, in this respect, a slip in the Judge's reasons which his Honour has clarified and that should be dealt with.  His Honour reached the conclusion that if able-bodied, the respondent would be earning a certain weekly sum which he capitalised to reach a figure of about $300,000.  His Honour ultimately allowed $100,000, about a third of the starting figure.  He arrived at that by, initially, taking 20 per cent off for contingencies; it is not absolutely clear on what basis the second reduction was made; but I quote the relevant part of his Honour's reasons as set out, at page 6 - that this, of the reasons as delivered.  His Honour said, among other things:

"[I]t is a notorious fact that rural employment is high and in the aboriginal community even more so.  To date he has earned on weekly average only about half of what he would have earned with the defendant.  Doing the best I can, I propose to assess him on the basis that his earning capacity, with the disability is $100,000  that is, rather less than half of what it was were he not injured in May 1993."

Then, in the summary of the Judge's reasons at page 7, his Honour set out $100,000 as being the future economic loss not, as one might have thought from the part I have quoted, the earning capacity.  This apparent discrepancy was raised with his Honour and his Honour explained, and this is accepted by both parties, that what he had intended to say was:

"Doing the best I can, I propose to assess him on the basis that his lost earning capacity, with the disability is $100,000..."

That is, it is common ground, now, that the Judge's intention was to reduce the figure of about $300,000, which one could describe as the value of the earning capacity before the accident, to $100,000, 20 per cent of which reduction, I have explained, was for contingencies and the other substantial reduction covered other matters.

The argument which Mr Hastie advanced was that the $100,000 should have been $50,000 and that there should have been a corresponding reduction, of course, in the allowance for superannuation contributions.  The principal bases upon which that argument is put are two. 

First, Mr Hastie relies upon the fact that employment which the respondent had for a considerable time before the trial, and which he left voluntarily, showed that he had a substantially higher earning capacity than the Judge found.

The employment to which I refer was with an organisation called Undara Experience.  In his quantum statement the respondent said this about it, "I subsequently left Undarra Experience on 11 October 1998."  Mr Hastie, I interpolate, points out that this was not long before the trial, which took place in February 1999.   Going on with the quantum statement,

"There were several reasons for me leaving.  One was as a result of a disagreement I had with the management.  I was obliged to attend a family wedding.  I had arranged to have the time off in advance, however, when the time came my employer would not allow me to go.  One of the other reasons I left Undara Experience was because it was at Mount Surprise.  I had formed a relationship and my absence due to work commitments was causing considerable pressure on the relationship.  After the accident, and because of all the time I had on my hands, I started drinking excess alcohol.  I noticed that while I was by myself out at Mount Surprise that this seemed to contribute to my excess drinking.  It was another reason why I left Undara Experience."

The statement goes on to explain that subsequently there was employment obtained under a CDEP Scheme at Kuranda, which is a scheme whereby people work for employment benefits.  In his oral evidence, the respondent said very little about this.  He was asked about the Undara work and said, "[I] left because of a disagreement with the manager himself."  Reference to the quantum statement suggests that it was not as simple as that.  Mr Hastie urges upon us the view the Judge could not have taken sufficient account of that evidence, that the respondent could have stayed at Undara Experience if he had so chosen.

The second principal point, which Mr Hastie takes by way of criticism of the Judge's conclusion, depends upon an answer given in discussion with the Judge, by Dr Graham.  In discussing the work which the respondent had been doing the witness said that it is very, very heavy work.  Then the transcript reads:

"His Honour:  Would you expect him to continue that for a normal working life to middle age?‑‑ It's reasonable to be able to expect.

Pardon?‑‑ It would be reasonable - to him being able to suspect that with just the first injury."

The second answer is not very clear; the submission which

Mr Hastie based on the first is that the Judge should have taken and did not take sufficient notice of the view which Dr Graham had, so Mr Hastie says, that the respondent's expectation was only to work to middle age in the

pre-accident employment, that is, in the heavy employment.

I must say that is not quite so clear to me.  A "normal working life" would not be middle age but somewhat later and secondly, I take notice of the fact that the question did not particularly focus the witness's attention upon the proposition that the pre-accident working life would, in any event, have been limited.  There was other evidence on the subject, which was given by the respondent himself; he said that he intended to work longer than that.  His evidence was that he would have worked until retirement age which he explained to be, "normal age, 65 - 60, 65".

The fact that this was not a major point at the trial - that is, the evidence of Dr Graham to which I have referred - is underlined by the circumstance that it does not seem to be discussed in the reasons nor was it mentioned in the appellant's outline. 

It is nevertheless a legitimate point to take and we have to assess the correctness of the Judge's reduction, which is $300,000 to $100,000, in the light of the fact that there was some evidence suggesting that the respondent's working capacity included the possibility of continuing to work at Mount Surprise and the fact that there was some evidence - although not as, as it seems to me, very strong - from which it might have been inferred that the doctor relied on by the primary Judge, Dr Graham, thought that the pre-accident job would only have lasted until middle age. 

These points are not discussed at all in the reasons, so far as I can see, but it seems to me unrealistic to assume that the primary Judge, who gave his judgment shortly after the trial concluded, would have forgotten about the evidence I have mentioned or would have failed to give it due weight.

Although the two points taken with respect to the economic loss are not devoid of substance, it seems to me very difficult to argue that the Judge was wrong in his assessment of $100,000 as future economic loss.  The facts as found by his Honour were that prior to the second injury (the one which was the subject of the action) the respondent was able to do his former work, although his doing so involved tolerating a degree of pain.  There was no challenge, as far as I can see, to the proposition which was advanced by the respondent, that he would have worked at the same job until he retired.  The other aspect of the argument, his having left the Undara work voluntarily, was a matter which his Honour had to consider in the light of the whole of the evidence:  in the light of the respondent's Aboriginality, his personality and other matters.

Taking the case as a whole, it does not seem to me, to put it simply, to come close to one in which we should interfere with the Judge's round assessment of $100,000 for future economic loss.  It appears to me to be a moderate and not extravagant assessment, considering that the respondent is a man who obviously was a determined worker, who was lodged in apparently quite secure employment with the railways, which he could handle, and dislodged from it by the negligence of the appellant.

I would, for these reasons, dismiss the appeal with costs.

DAVIES JA:  I agree.

ATKINSON J:  I agree.