Goldsmith v Camilleri[2000] QCA 439

SUPREME COURT OF QUEENSLAND

1. THE COURT:  This is a plaintiff's appeal against the quantum of damages assessed in the District Court at Cairns.  The learned trial judge assessed damages in a total of $39,853.  The major components in the assessment were damages for pain, suffering and loss of amenities - $10,000, and past economic loss $23,700.  The learned trial judge assessed future economic loss as nil, and there is no longer any complaint raised by the appellant on that score.

2. The plaintiff was born on 11 September 1939. He was 56 at the time of his accident on 7 July 1996. At that time he was employed as a cleaner for the Department of Education. He returned to work the day after the accident but had trouble coping. Only four months after the accident he accepted a voluntary redundancy package and has not engaged in paid employment since. The learned trial judge accepted that the plaintiff was a credible and honest witness, that he had intended to continue to work until age 65 and that he had taken advantage of the redundancy package because he was finding it too difficult to work in view of the pain he was then suffering.

3. The learned trial judge also accepted the evidence of Dr Graham. The relatively low level of impairment attributable to the accident can be seen from the following statement in Dr Graham's report – "There is no doubt he has significant neck and low back pain with permanent impairments in the order of 5% and 10% respectively but … only a few percentage points of this would be due to the current accident". That evidence would seem to have been the basis of her Honour's finding that, "some small but significant proportion of the plaintiff's present impairment can be attributed to the accident".

4. The appellant also complained of wrist pain and shoulder pain, but Dr Graham's opinion was that these problems had nothing to do with the accident. His initial assessment of the appellant's future working life was that despite a number of pre-existing orthopaedic problems in his neck and back "he may well have been able to work to retirement age at 60 years". In cross-examination Dr Graham qualified his earlier statement concerning the future working life of the appellant but for the accident. He stated that, "In terms of his neck and his lower back … they will (sic) have stopped him working". The accident he thought had shortened his working life. "It may have only been by a year or two, but it seems to have shortened his working life". This suggests that but for the accident he would have been able to remain at work until his 58th or 59th birthday. In the event her Honour took the option most favourable to the plaintiff, namely his 59th birthday.

5. In December 1997, the appellant suffered a heart attack and was hospitalised. This occurred a little over a year after he had ceased work. He underwent a six week recovery plan and was advised that he could return to his normal activities. It may be inferred that he would have suffered this heart attack whether or not he had remained in the workforce. It is therefore a factor to be taken into account in measuring his economic loss.

6. The learned trial judge estimated the appellant's economic loss as the amount that he would have earned between the time when he accepted his redundancy package (November 1996) and his attainment of the age of 59 years (11 September 1998). His net earnings were $345 per week. Her Honour proceeded to assess a loss at that figure for a period of 2.2 years. However that represents an error in favour of the appellant in that that period should only have been 1.85 years. Taking into account this error, which on more precise calculation reveals an over-allowance of 18 weeks, and at the same time crediting the appellant with sick leave entitlements that he had taken, the initial calculation of prima facie maximum economic loss should have been $34,696 rather than the $39,468 estimated by her Honour.

7. It was appropriate in our view that her Honour should apply some discounting to that figure to take account of the probably supervening heart attack 13 months into that period. Her Honour in fact held that the amount "should be discounted to take into account the plaintiff's pre-existing conditions including his heart condition". Her Honour then applied a discount of 40%, reaching $23,700 as the figure for economic loss.

8. Counsel for the appellant submits that her Honour erred in discounting in this way because the pre-existing conditions other than the plaintiff's heart condition had already been taken into account in the first findings which limited loss of earnings until age 59. A reading of Dr Graham's evidence shows that this may be partly correct in that Dr Graham's opinion on the restricted future working life of the appellant was based on pre-existing conditions in his neck and lower back although not on the existence of his other degenerative conditions. It therefore seems that on a literal construction of her Honour's comments there would be an error to the extent to which any account was again taken of the pre-existing neck and back conditions in arriving at a discount figure of 40%.

9. The question arises however whether such an error was significant. It is possible, for example, that the 1997 heart episode alone was enough to justify 40% discount in a working life which was in any event limited to 22 months. If upon suffering from a heart attack the appellant would probably not have returned to work for a significant period, there is nothing in the complaint. It would of course have been quite possible that given his existing physical difficulties, the onset of the heart condition might have induced him not to go back to work again at all. On the other hand, the appellant believed that he would have returned after a relatively short absence, perhaps six weeks. That however might be thought to be unduly optimistic.

10. Looking at the evidence as a whole it seems to me that any error was a minor one. The heart condition and the other physical conditions which played no part in Dr Graham's account in estimating of the appellant's future working life were matters which her Honour was entitled to take into account by way of discount. Those other physical problems were fairly extensive. We cannot say that a 40% discount is excessive although it may be on the high side. If it were to be reduced to say 25% through elimination of the back and neck conditions which had been already taken into account, the negative effect on the award is little more than the positive effect of her Honour's allowance of too long a period. The eventual alteration to the award would be quite trivial, and insufficient to satisfy the requirements considered necessary before this court will interfere on the ground that an award is manifestly inadequate. (See Elford v FAI General Insurance Limited [1994] 1 Qd R 258).  Even on the assumption that the discount should have been reduced to 25%, the effect would be substitute $26,014 in place of the present award for economic loss of $23,700.  That difference ($2,314) would still leave the appellant's award well short of the $45,000 offer that was made on 4 May 1999 which resulted in an adverse order against the appellant for costs subsequent to that date.

11. It is more likely that the learned trial judge was aware of the fact that the making of an initial assessment up to age 59 was on the generous side having regard to Dr Graham's evidence, and that the possibility of earlier termination might come into play. It is also possible that her Honour's reference to "the plaintiff's pre-existing conditions including his heart condition" was intended as a reference to the conditions relied on by Dr Graham along with the heart condition. If this is so, the point comes down to infelicitous expression, and no error is shown. Whatever view is taken on this matter, we do not consider that the assessment actually made by the learned trial judge under this head of damage was unfair to the appellant.

12. So far as the assessment of damages for pain, suffering and loss of amenities of life are concerned, it was submitted that the learned trial judge's findings would justify an award in the vicinity of $17,500. We were referred to a number of allegedly comparable District Court decisions by counsel for the respective parties. Mr Glenn, for the appellant, submitted that $10,000 was "the traditional amount awarded" for slight exacerbations of back trouble which cause pain and suffering to a plaintiff for a limited period of say 12 months. We reject that submission. The assessment of damages is not so simplistic. It cannot be said that $10,000 is inadequate compensation for the limited aggravation which this appellant has been found to have suffered by reason of his accident. Her Honour enjoyed considerable advantages over this court, and there is no proper basis on which we could hold that her Honour's estimate in this regard was manifestly inadequate.

13. In the result then, we are of the view that although a literal reading of her Honour's reasons is suggestive of an error in relation to the discounting for past economic loss, there were sufficient pre-existing conditions (including his heart condition) to support the discount of 40% that was applied. After setting off the positive error that was made in favour of the appellant any adjustment to correct the error relied on by the appellant would, in our view, be unwarranted. We would dismiss the appeal with costs.