Perez v Holmes[2003] QCA 453

SUPREME COURT OF QUEENSLAND

1. MCMURDO P:  I agree with the reasons for judgment of Williams JA and with the orders proposed.

2. WILLIAMS JA:  The respondent brought proceedings in the District Court at Southport claiming damages for personal injury arising out of a motor vehicle collision which occurred on 9 March 2000.  Liability was not admitted; the respondent merely being put to proof.  There is no challenge to the finding of liability in the respondent’s favour.  The learned trial judge, as disclosed by his written reasons for judgment, assessed damages as follows:

3. That resulted in the learned trial judge then pronouncing judgment in favour of the respondent in the sum of $250,000.00, the jurisdictional limit of the District Court.

4. Subsequently counsel for the respondent drew the attention of the learned trial judge to an error he had made in the calculation of damages for loss of earning capacity. The learned trial judge acknowledged that and on 13 December 2002 said the judgment would be varied by deleting the award of $200,000.00 for loss of earning capacity and substituting $165,000.00. His Honour then said that meant a new total for damages of $263,358.00.

5. It is immediately obvious that the learned trial judge erred in not making consequential adjustments with respect to interest on one quarter of the award for loss of earning capacity, and in the assessments for past and future loss of superannuation. However those errors are of no practical consequence because the judgment remained one for $250,000.00, the jurisdictional limit.

6. The appellants satisfied the judgment by paying the amount thereof to the respondent, but lodged an appeal alleging that the damages as assessed were manifestly excessive. The respondent has left the jurisdiction but material placed before the court by the Registrar and the solicitors on the record for the respondent satisfies me that the respondent was aware of the appeal. Service of the Notice of Appeal was effected in accordance with Rule 752(2). There was no appearance for the respondent on the hearing of the appeal.

7. The primary contention of counsel for the appellants was that the assessments for pain and discomfort, and for loss of earning capacity, were so out of line with awards made in comparable cases that the decision here, if it stood, would take the level of awards to a new height and constitute an inappropriate precedent. The decision has already been cited in argument in other cases in support of a general increase in the level of awards.

8. It was in those circumstances that the court entertained the appeal.

9. In the collision the respondent suffered injuries to his right knee, neck and lower back. A number of doctors gave evidence at the trial, but the learned trial judge preferred the evidence of Dr Langley where there was any conflict. Two passages in the reasons for judgment were the subject of particular criticism:

“Dr Langley agreed with the suggestion that the plaintiff’s knee was vulnerable to an exacerbation of its pre-existing condition.  He baulked at the suggestion that the plaintiff’s present state had simply been accelerated by five years.  He considered that if that had occurred, a range of five to 10 years would be more appropriate but, more importantly, he considered such prognostications as “crystal ball gazing”.  The evidence on that issue falls far short of that required by the authorities, in particular Purkess v Crittenden (1965) 114 CLR 164 (see especially per Windeyer J, p 171).

…

Consequently, I find that it is unlikely that the plaintiff will be able to return to commercial cleaning.  Counsel for the plaintiff has argued that he ought not to have been performing that work at all, he having been advised by Dr Englin not to do so.  In that respect he was an accident waiting to happen.  But, it had not happened in fact, notwithstanding his extremely heavy and active workload and probably he would not have been brought to his present state but for the collision.”

10. There was no doubt, as found by the learned trial judge, that the respondent had a pre-existing disability in his right knee. There was also unchallenged evidence he had prior problems with his lower back. The critical question for determination was the extent to which, if at all, those conditions had been exacerbated by the accident.

11. A report from Dr Fuller, a neurosurgeon, dated 11 February 1997 recorded an injury to the respondent’s right knee and lower back in a fall in July of 1994. In 1996 the respondent was being treated for middle to lower back pain associated with right sciatica. A CT taken in 1995 demonstrated a mild diffuse disc bulge at the L5/S1 level. A lesion at that level was confirmed by an MRI scan performed on 4 December 1996. Dr Fuller also recorded a complaint of constant right knee pain. Dr Fuller concluded his report by advising that the respondent should “avoid heavy repetitive lifting and pay particular attention to his posture whilst sitting or working.”

12. Dr Hannaford, an orthopaedic surgeon, also reported on the respondent’s physical condition on 9 September 1996. Again he recorded an injury to the right knee in July 1994. An arthroscopy was performed on 9 February 1995 which showed a tear of the central section of the medial meniscus which was not repairable. In a later report of 9 June 1998 Dr Hannaford referred to a further arthroscopy performed on 14 April 1998. His report records that the then “operative procedure was chondroplasty and partial medial menisectomy associated with debridement.” The respondent was advised of the risk of early osteoarthritis developing in the right knee. In Dr Hannaford’s view the respondent then had “a minor degree of permanent disability in his right knee” with signs of developing osteoarthritis. Dr Hannaford was of the view that the respondent may “suffer some limitation of ability to work in any heavy physical capacity” and may be restricted to sedentary tasks. He concluded by saying that the “overall prognosis for the right knee is fair provided Mr Perez avoids high impact activities and heavy physical work”. The onset of arthritis could necessitate surgical treatment in the future.

13. Dr Englin also furnished reports dealing with extensive treatment with respect to the respondent’s right knee and back prior to the motor vehicle accident in question. The respondent was advised by that doctor “to never engage in any repetitive tasks involving back flexion.” In other passages in those reports reference was made to advising the respondent never to undertake manual work again, and expressing the opinion he would not be able to carry out any work which involved prolonged driving. Dr Englin also noted that the respondent was working at the time of the examination in a café and noted that the respondent “experiences considerable pain at the end of every day, both in the right knee and in the back.”

14. Despite those problems with his right knee and lower back the respondent had been working for about nine months as a commercial cleaner prior to the accident. Dr Langley first examined the respondent on 30 August 2000. In a report dated 13 September 2000 he expressed the opinion that the respondent “has a ten (10) per cent permanent impairment to his body as a whole as a result of his neck and leg injuries.” However, Dr Langley appears not to have been aware of the respondent’s earlier history until an examination on 30 July 2002 for a report dated 6 August 2002. In that report he reaffirmed his opinion that the respondent had a 10 per cent permanent impairment to his body but went on to say:

“I believe that fifty (50) per cent of that ten (10) per cent is due to past injuries, particularly with regard to his knee joint and fifty (50) per cent is due to the accident that occurred on 9 March 2000, ie, he has been left with a five (5) per cent permanent impairment to his body as a whole as a result of the motor vehicle accident that happened on 9 March 2000.”

15. In oral evidence Dr Langley expressed the firm view that with heavy physical work the respondent was vulnerable to his previous symptoms (knee and back) becoming symptomatic again. It was in that context that (summarising answers given under cross-examination and in re-examination) Dr Langley expressed the opinion that the accident had accelerated the respondent’s disabilities and condition by between five and 10 years, but “on an average it is usually seven, around seven years when that happens.”

16. Finally, it should be noted that Dr Langley was asked about the five per cent disability of the body he attributed to the accident; he was asked to apportion that between the neck and the knee. In summary his answer was that it was four per cent for the cervical spine and one per cent to the knee.

17. The learned trial judge concluded that the respondent had been unemployable since April 2000. Significantly though, the learned trial judge appears to have concluded that, but for the motor vehicle accident, the respondent would have been able to continue working as a cleaner, consistently working long hours, for at least 10 years. Against that background he concluded that “the problem he had in his knee was relatively minor.” Those findings are not consistent with the evidence of Dr Langley.

18. In relation to the assessment for pain and suffering the learned trial judge referred to pain in three areas: right knee, neck and lower back. He said that “an award for pain and discomfort must be a significant one because he must rarely be free of pain which emanates from any one or more of the three areas of injury.”

19. The respondent was born on 20 May 1953, and was therefore aged 49 at the time of trial.

20. It was in those circumstances that $45,000.00 was awarded for pain and suffering and loss of amenities.

21. Counsel for the appellants referred to a number of relatively recent District Court single judge quantum decisions demonstrating that, for relatively minor injuries of the type suffered by the respondent here, $30,000.00 represented the upper limit of an award for pain and suffering and loss of amenities. Reference can be made, without descending into detail, to Venables v Gould [2001] QDC 320, Poole v Piggott [2000] QDC 254, Horvath v Rajic [2001] QDC 358, and Keenan v Kedron-Wavell Services Club Inc DC No 1868 of 2001, 31 January 2003.

22. Particularly given the pre-existing complaints with respect to the lower back and right knee, and the assessment of Dr Langley, the respondent here is not entitled to damages on the basis that his present condition was entirely brought about by the motor vehicle collision. There was some exacerbation of his pre-existing injuries, and his present condition would have resulted, even without that accident, in a time frame of approximately seven years.

23. On that basis the award for pain and suffering should be reduced to $30,000.00.

24. I now turn to the issue of economic loss.

25. Given the amended award of $165,160.00, it appears that the learned trial judge worked on a loss of $400.00 per week over a period of 10 years, one quarter of which (two and a half years) represented pre-trial loss.

26. However, given the preference of the learned trial judge for the evidence of Dr Langley, economic loss should only have been calculated over a total period of seven years. By the end of that seven year period the medical evidence, accepted by the trial judge, was that the plaintiff would have become largely unemployable, disregarding the consequences of the motor vehicle accident. That scenario is even generous to the plaintiff given his previous back and knee problems, and the advice he had been given by doctors prior to the accident. It is also clear on the evidence that the respondent has earned some income since the accident and in consequence it could not be said that his income earning capacity had been totally destroyed from that date. But, adopting $400.00 per week as the measure of the loss of earnings took that fact into account to some extent. Certainly the respondent’s earning capacity had been significantly reduced.

27. In the circumstances it would have been appropriate for the learned trial judge to adopt the loss of $400.00 per week over a seven year period from the date of the accident in calculating economic loss.  Adopting the approach of the learned trial judge, the total for economic loss should be calculated over that seven year period using the 5% discount table (multiplier 309), giving a figure of $123,600.  That must then be apportioned between pre-trial (2.5 years) and the future.  That gives $44,140.00 for past loss and $79,460 for the future.  Those are the figures which, in my view, should be substituted.

28. Interest should be allowed on the pre-trial loss at six per cent for two and a half years, giving an award of $6,621.00.

29. The learned trial judge assessed past loss of superannuation at eight per cent of earnings and future loss of superannuation at 9 per cent of earnings. It is not clear why those percentage rates were chosen rather than the more traditional seven per cent; but as there was no submission to the contrary on the hearing of the appeal those rates will be adopted. That results in an amended figure for past loss of superannuation of $2,472.00, and a figure of $8,343.00 for future loss of superannuation.

30. Given the amended figure for pain and suffering and loss of amenities the interest thereon (given the formula adopted by the learned trial judge) should be $500.00.

31. That would result in the amended assessment being as follows:

32. The orders of the court should therefore be:

1. Appeal allowed.

2. Substitute $192,414.00 for $250,000.00 in the judgment of the District Court.

3. Order the respondent to pay the appellants’ costs of and incidental to the appeal to be assessed.

33. MACKENZIE J:  I agree with the orders proposed by Williams JA and with his reasons.