McNally v Essenhaven P/L[2001] QCA 452

SUPREME COURT OF QUEENSLAND

1. THE COURT:  This is an appeal from an assessment of damages in a master/servant action by a judge of District Courts.

2. The respondent to the appeal was working as a fruit tree trimmer and picker when injured at work on 11 May 1998. He was then aged 54 years and was aged 57 years at the time of judgment on 9 March 2001.

3. The only challenges made on the appeal are to the learned trial judge’s assessment of damages for past and future loss of earning capacity, and to certain findings regarding the nature of injuries suffered. His Honour awarded sums of $20,000 and $40,000 respectively for past and future economic loss.

4. It is necessary to set out some of the history of the plaintiff’s employment before coming to those questions. First of all it was not in contention at the trial that the respondent suffers from an “enormous and premature” inherent degenerative condition of his spine. Furthermore, it was proved that he had sustained a previous workplace injury whilst working for another employer some ten years earlier in July 1988. Subsequent to that injury he was out of work and in receipt of a disability support pension for about seven years, until around mid 1995.

5. He then worked as a farm labourer on a tomato plantation where his work included tomato picking. He did that work for approximately one year from mid 1995 to October 1996. Thereafter he did not work, save for about two days, and received unemployment benefits, until 2 December 1997 when he commenced work for the appellant.

6. The uncontradicted evidence on behalf of the appellant was that the orange picking season ended at the end of the week in which the respondent’s accident occurred, namely 15 May 1998. His Honour, in any event, found “that it was likely that (the plaintiff’s) employment with the defendant once it concluded at the end of the orange picking season, would not have been renewed in the future”.

7. The learned trial judge then went on to make an assessment of the respondent’s pre and post trial loss of income or, alternatively, loss of earning capacity. To establish a base he looked at the respondent’s average net weekly income between mid 1995 (when he returned to work after a seven year absence) and 11 May 1998 (the date of the accident). That was a period of some 148 weeks (which included about 14 months of unemployment). In that time his total net income was $29,230 which represents an average of just under $200 per week. His Honour then assessed damages for past loss of earning capacity at $200 per week over 147 weeks between the date of accident and the date of judgment. That figure came to $29,000 which he discounted to $20,000 to take into account “the usual exigencies which arise in this type of situation”.

8. With respect to the future the learned trial judge adopted the same figure of $200 per week on a finding that the respondent might reasonably have been expected to work to age 65 which, on the appropriate tables, gave a sum of $68,600 which his Honour discounted to $40,000 to “once again allow for the usual exigencies, together with those (additional exigencies) which (his Honour) identified for past economic loss”.

9. It is apparent from the above that in determining the respondent’s capacity to earn income his Honour only took into regard the period between mid 1995 and 11 May 1998. That was by far the most productive period for the respondent in the previous ten years. To do so, in our view, distorts the true indication of the respondent’s capacity to earn income following his accident at work in July 1988. A more appropriate period to take into account was, in our view, the period from July 1988 until 11 May 1998, perhaps influenced by the fact that it had improved in the latter part of that period but tempered by the further fact that his current employment was soon to terminate. In this period the respondent was unemployed for seven years; employed for just over one year; unemployed for about 14 months; and employed by the appellant for the short period before his second accident. In our respectful view his Honour fell into error in not having regard to the whole of the period between July 1988 and 11 May 1998 in determining the respondent’s capacity to earn income. When employed on his current type of work he was earning $268 per week. His Honour’s assessment of past economic loss is equivalent to a continuation of that rate for more than 50 per cent of the time until trial. On his past performance that was quite improbable, and is an unrealistic projection.

10. In any event the respondent was at a substantial disadvantage on the open labour market. As we have said he was 54 years of age at the date of the accident. He also had the “enormous and premature” pre-existing inherent degenerative condition of his spine, which was subject to further aggravation. He had a major back injury in July 1988 and not much prospect of obtaining employment in the period after the orange picking season ended in May 1998. Furthermore, his own choice to live at Biggenden (where there was not much employment, and long distances to travel to work) did not assist in the obtaining of employment. He was at best a seasonal agricultural labourer, subject to the vagaries of the weather.

11. Respectfully, in our view, his Honour failed to take into account sufficiently the factors to which we have referred above. Therefore his Honour fell into error in adopting a base figure of $200 per week for his calculations with respect to past and future loss. Furthermore the discounting of the prima facie figure of future economic loss based on the assumption of his continuing to work until age 65 was quite inadequate.  It is not possible, in our view, to accurately assess with any sort of precision the plaintiff’s past and future loss of income or capacity to earn income.  Therefore the assessment must be approached globally.  We would set aside his Honour’s findings with respect to past and future economic loss and substitute the global sum of $30,000 in lieu.  This is based on a perception that those assessments were about twice as much as they realistically should have been.  It follows that the allowances for superannuation entitlements should be likewise halved.

12. The final matter concerns challenges to the learned trial judge’s findings that in the accident on 11 May 1998 the plaintiff sustained:

1. a crushed fracture of the L1 vertebra; and

2. an L2 radiculopathy.

13. In coming to his conclusions his Honour found that the respondent was prepared to lie in order to enhance his claim and that he consciously exaggerated his symptoms to some of the doctors in order to produce the same result. Numerous doctors had found the plaintiff’s presenting symptoms bizarre and extraordinary following the July 1988 accident. Mr Miles (for the appellant) presented strong reasons in favour of the medical evidence that any crushed fracture was not caused by that accident.

14. However, there was evidence (Dr Boyce) which his Honour could have accepted (slight as it was) that the injuries to the area of the L1 and L2 vertebra were caused in the accident in 1998. In that case this court is not entitled to interfere with those findings, particularly bearing in mind his Honour’s awareness of the respondent’s capacity to overstate matters and, indeed, to lie on occasion. There is therefore no reason for further reduction of the damages than has been suggested above.

15. Once the global award replaces his Honour’s past and future economic loss findings, and adjustments are made to the Superannuation allowances, the following assessment of damages if produced:

16. We would allow the appeal and set aside that part the judgment of the District Court of 9 March 2001 that ordered the defendant to pay to the plaintiff the sum of $83,475.41 and in lieu give judgment for the plaintiff against the defendant in the sum of $51,375.41. We would order that the respondent pay the appellant’s costs of the appeal to be assessed.