Hopkins v WorkCover Queensland
[2004] QCA 155
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Hopkins v WorkCover Queensland[2004] QCA 155
- Add to List
Hopkins v WorkCover Queensland[2004] QCA 155
Hopkins v WorkCover Queensland[2004] QCA 155
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 14 May 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 February 2004 |
JUDGES: | McMurdo P, McPherson JA and Mackenzie J |
ORDERS: | 1.Appeal dismissed |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR MATTERS – OTHER CASES – Conduct of Trial – whether conduct of trial departed from pleadings – where aspects of evidence at trial not addressed upon – whether they may be relied on in appeal DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – whether trial judge erred in failing to discount sum for past economic loss - whether adequate allowance for vicissitudes of life and probability that degenerative spine would have affected respondent’s capacity to work – whether award for future economic loss within range of a proper exercise of discretion WorkCover Queensland Act 1996 (Qld), s 285 Coulton v Holcombe (1986) 162 CLR 1, cited |
COUNSEL: | D V McMeekin SC for the appellant |
SOLICITORS: | Bell Dixon Butler for the appellant |
[1] McMURDO P: I have read the reasons for judgment of Mackenzie J in which the facts and issues are set out. I will repeat only those necessary to explain my own reasons for agreeing that the appeal should be dismissed.
[2] I agree with Mackenzie J that because the issues raised on appeal were litigated at trial, the appellant is not precluded from arguing those issues on appeal by the admissions in its pleading.
[3] The appellant contends, first, that the learned primary judge erred in adopting the figure of $642 per week as the hypothetical earning capacity of the respondent had he not been injured. I agree with Mackenzie J's reasons for concluding that the finding was open on the evidence.
[4] The appellant next contends that the learned primary judge did not sufficiently discount the award of future economic loss to take into account the respondent's residual earning capacity. The respondent was 44 at trial. He had a good work history and a Grade 10 education. He was able to operate the computer system in the office of the tyre fitting business in which he worked as a manager. In that capacity he was required to fit tyres from time to time, something which was very physically demanding. Despite his 10 per cent bodily impairment, all the medical evidence supported a finding that he had some capacity for at least part-time light employment with a sympathetic employer. The evidence did not demonstrate that such employment was readily available. Her Honour was entitled to find that the prospect of the respondent finding such work was slight. There was, however, an undoubtedly real prospect of limited future earning capacity. Some allowance should have been made for this by moderately discounting the future economic loss component of the damages award.
[5] The appellant's third contention is that the learned primary judge failed to sufficiently discount the future economic loss award for the respondent's degenerative spine and the real prospect that he would have arrived at his present state of disability irrespective of the work injuries. Her Honour correctly applied the principles established in Watts v Rake[1] as explained in Purkess v Crittenden,[2] determining that the appellant was responsible for the respondent's present degenerative spine.[3] The medical evidence was clear that the respondent suffered from a degenerative condition to his spine which could have caused him significant symptoms within a very short period, regardless of the accident. On the other hand, but for his work injuries, his symptoms may never have come to light. The doctors were unable to quantify the likelihood of these events or say when the symptoms were likely to have arisen regardless of the work injuries. In such circumstances, a trial judge determining the damages award has the difficult task of assessing the degree of probability of the occurrence of associated future or hypothetical events and must correspondingly decrease the amount of damages otherwise to be awarded: Malec v J C Hutton Pty Ltd.[4] This principle applies alongside those principles set out in Watts v Rake as explained in Purkess v Crittenden.
[6] The learned primary judge stated:
"I reject the defendant's submission that the calculation of future economic loss has to be discounted to reflect residual working capacity. In the circumstances of this case, I find that the approach of the plaintiff to the calculation of future impairment of earning capacity is appropriate. Calculating this head of damage at a continuing rate of loss of $642 net per week discounted at 5% over 15 years (multiplier 555) to age 60 gives the sum of $356,310 which, when reduced by one-third, results in this head of damage being assessed at $237,500. I am satisfied that there is at least a 51% likelihood that the plaintiff will sustain future impairment of earning capacity to this extent."[5]
[7] It is unclear what factors her Honour was taking into account when discounting the future economic loss award. It is clear that she did not discount it for the possibility of a residual earning capacity. The last sentence from the quoted passage seems to suggest that neither did she discount it to recognise the real possibility on the evidence that the respondent at some unknown future time would have his current disability because of his degenerative condition, regardless of his work injuries. Although the evidence as to this was vague and imprecise, some allowance should have been made for it in accordance with the principles stated in Malec v Hutton. A moderate discount of the damages award for impairment of future earning capacity should have been applied, the imprecise nature of the evidence making it difficult to state a clear range. Her Honour erred if she made no discount for this factor.
[8] Her Honour did, however, significantly discount the damages for future impairment of earning capacity in a general way by limiting them to the date the respondent turned 60 rather than 65 and by reducing them by one-third. A larger discount could have been given on the evidence here. Because of the imprecision of the evidence, I am not, however, persuaded that the discount applied by her Honour for all the contingencies, including the possibilities that the respondent had some limited residual working capacity and that he would have reached his present state of incapacity regardless of his work injuries, makes that discount outside the sound exercise of judicial discretion. I am not persuaded that the appellant has established that the errors made would so substantially affect the amount of the award as to warrant this Court's interference: Elford v FAI General Insurance Company Limited.[6]
[9] I agree with the orders proposed by Mackenzie J.
[10] McPHERSON JA: I agree that this appeal should, for the reasons given by Mackenzie J, be dismissed with costs.
[11] MACKENZIE J: This is an appeal against assessment of damages in an action for personal injuries. Issue is taken with the awards for past economic loss and impairment of future earning capacity. The total award, before refunds, was $451,713.10. The judgment sum was $419,834.44. The component for past economic loss was $105,700.00 and that for impairment of future earning capacity was $237,500.00.
[12] Particular aspects of the challenge to the awards made were:
(a) the finding that there was no residual earning capacity;
(b) application of the principle explained in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164;
(c) failure, in relation to past economic loss, to allow for residual earning capacity and the possibility of not maintaining continuous employment up to trial;
(d) failure, in relation to future economic loss, to allow for:
(i) residual earning capacity;
(ii) the unlikelihood that the respondent would have been able to work as a tyre fitter for the rest of his working life;
(iii) events not of an unusual or unlikely kind that may have caused the respondent’s condition had the appellant’s negligence not intervened; and
(iv) the substantial difficulty in maintaining employment if the respondent had suffered from pain in his spinal region.
[13] The respondent’s employment history showed that the occupations in which he engaged generally involved physical labour. From 1990 until he ceased work in the circumstances that gave rise to the action, he predominantly worked in the tyre retailing industry. He worked first as a tyre fitter and after starting in December 1996 in that capacity with his last employer, which ran a Beaurepaires outlet in Hervey Bay, and which was insured by the appellant, he progressed to manager. Although he was manager he was required to do physical work on occasions.
[14] There were three separate injuries upon which the action was based. In February 1998 a 700kg tyre he was removing from the tray of a truck to fit on a scraper started to fall over. He tried to keep it upright but hurt his back in the area of his kidneys. He kept working with difficulty and the help of analgesics. In March 2000 he was moving another scraper tyre when he felt pain shoot up his spine. Once again he kept working with the help of medication. In May 2000 he was lifting a truck tyre into a utility when he felt pain in his lower spine. The next day his back froze and he became temporarily unable to move because of the pain.
[15] He ceased work on 14 June 2000 after the results of a CT scan were received. He has not worked since. The employer company had been for sale for some time at that date and ceased to carry on business in late June 2000.
[16] There is an allegation in paragraph 8 of the amended statement of claim that because the plaintiff was required to lift, move and fit tyres and lift and move batteries, the various incidents and ongoing degeneration of his back were caused entirely by the negligence and/or breach of duty and/or breach of contract of employment and/or breach of statutory duty by the employer. Paragraph 2.3 of the amended defence responded as follows:
“As to paragraph 8 the Defendant admits, pursuant to section 285 of the Act and for the purposes of these proceedings only, the allegations therein.”
[17] The reference to s 285 is to that provision in the WorkCover Queensland Act 1996, which concerns the procedure for timely resolution of a claim. One element of the procedure was that, in the preliminary stages of it, a written notice was to be given, including a statement whether liability in connection with the event to which the claim related was admitted or denied. If admitted, the extent to which it was admitted was to be stated (s 285(4)). Unless specifically stated otherwise, an admission of liability was not an admission about the nature or extent of the claimant’s loss or damage or that the claimant has sustained loss or damage (s 285(7)(c)).
[18] With respect to an allegation in the amended statement of claim that, as a result of the employer’s conduct, the respondent had suffered significant low back injury and consequent physical discomfort and loss of employment and social opportunities, the appellant admitted that the respondent had suffered “some injury to his lower back” as a result of the three incidents. It did not admit the nature and extent of the respondent’s injury, loss and damage and said that, based on medical reports, the appellant believed the injury to be relatively minor, that it did not cause damage or injury to his spine but rather was a musculo/skeletal type injury. The respondent had been left with no or very minor permanent disability of his back and of his whole person.
[19] The respondent submitted at the outset that the absence of pleading by the appellant relating to a pre-existing degenerative spinal condition and the consequences of it precluded the appellant from relying on the fact that there was evidence of such degeneration in the medical evidence at trial. It was submitted that the admission in paragraph 2.3 of the amended defence (which admits that the ongoing degeneration was caused “entirely” by fault of the employer) rendered any consideration of that evidence irrelevant. It was therefore impermissible to attach significance to it either at trial or on appeal.
[20] There is no evidence whether in the preliminary stages, liability was admitted “entirely” or whether that word appeared only at the pleading stage. It is pointless to speculate why the admission was made in that form, and why the pre-existing condition was not pleaded, despite the medical evidence.
[21] The appellant responded by arguing that the parties had not, at trial, considered themselves bound by the issues identified in the pleadings. The respondent’s argument ignored the reality that in the course of the trial the existence of pre-existing back complaints, the presence of degeneration and their effects on the respondent’s earning capacity were all litigated. The issue had emerged in the medical reports obtained prior to trial. The parties had litigated the issue at trial. Reliance was placed on Gould v Mt Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517 and Water Board v Moustakas (1988) 62 ALJR 209 at 211.
[22] As the trial was conducted, there was evidence of the condition, cross-examination about it, the learned trial judge took the evidence into account and made findings about it. There is no cross-appeal or notice of contention relating to the issue. Notwithstanding the unusual features of the pleading, the issue was in fact litigated. There is no reason to find, in the circumstances, that it was irrelevant to the proceedings.
[23] It was also submitted by the respondent that some matters raised in the appeal with regard to past economic loss had not been raised at the trial. Therefore the appellant should not be allowed to ventilate them on appeal. This will be revisited later.
[24] The learned trial judge accepted that the three incidents described by the respondent had occurred as alleged. She reviewed the medical evidence, focussing in turn on the periods preceding and after the incidents. With regard to the pre-incident period there was evidence that he had given a history of a painful back for several weeks on an occasion when he went to the Dalby Hospital outpatients department when he was unwell with a virus. In June 1996 he was suffering from pain radiating to or from his right testicle, depending on whether the history recorded by a doctor or the respondent’s evidence is accepted. In any event he had an x-ray of his lumbosacral spine. It was reported that there were very mild changes of lumbar spondylosis. Otherwise its appearance was normal. In relation to the pre-accident period there was also evidence from Ms Cordner, who had known the respondent for 9 years and shared a home with him for 6 of those years, that prior to 9 February 1998 he did not make complaints of or give the appearance of suffering from back pain. The learned trial judge found that the back was asymptomatic prior to the first incident in February 1998. She also accepted the respondent as a witness who gave evidence in a straight-forward manner without exaggeration and found also that Ms Cordner’s evidence supported his evidence. She rejected the appellant’s assertion that the respondent had overstated his symptoms. She was entitled to make those findings on the evidence.
[25] After the first incident in February 1998, there is evidence of complaints in September 1998 of recurrent abdominal pain, sometimes radiating to his right testis. A report in March 2000 reported that the upper lumbar spine tilted towards the left and there was mild degenerative disease of the spine. The intervertebral disc spaces appeared to be within normal limits.
[26] Following the third incident it was reported on 9 June 2000 that there was minor generalised disc bulging with a minor indentation of the thecal sac at L3-4 and L4-5. There was no prolapse present at L5-S1 and the S1 nerve roots were normal. The summary was that there was minor compression of the thecal sac at L4-5 and less markedly at L3-4. An MRI in August 2000 showed no compression lesions. There was degeneration of the T11-12 disc, early degenerative changes at L3-4 and small disc herniations at L2-3 and L3-4. A medico-legal report by Dr Mullan, and his evidence, referred to the existence of a degenerative condition prior to the first incident which was exacerbated by each of the incidents.
[27] The learned trial judge accepted that there was evidence of a pre-existing degenerative spinal condition at the time of the first injury. The appellant had discharged the onus of proving its existence.
[28] The learned trial judge went on to review the medical evidence on the issue of whether the effects of the degenerative condition would have reduced the plaintiff to the condition in which he was after the first incident within a predictable time or even within his working life. She summarised this step in the following way:
“[51]It was common ground between the parties that, relying on the approach in Watts v Rake (1960) 108 CLR 158, as explained in Purkess v Crittenden (1965) 114 CLR 165, 168, there was an evidential burden on the defendant to show that the plaintiff’s incapacity was wholly or partly the result of his pre-existing degenerative spinal condition and that his incapacity would, in any event, have resulted from that pre-existing condition which requires evidence to “establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be”.”
[29] The quotation in that passage comes from the joint judgment of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden at 168. She went on to say that the appellant had failed to show what the future effects of the pre-existing condition were likely to have been if the plaintiff had not been injured in the three incidents with the required reasonable measure of precision. She said that each of the doctors conceded that the exercise could not be undertaken with a reasonable measure of precision. She concluded:
“[53]As the defendant has failed in discharging the evidential burden in respect of the role of the pre-existing condition on the plaintiff’s symptoms, I am satisfied that the plaintiff has shown that his low back injury from which he has continued to suffer since February 1998 was caused by the subject incidents. I also accept that it has been reasonable in the light of the plaintiff’s continuing pain and lack of educational qualifications for him not to endeavour to find alternative employment since 14 June 2000. I accept Dr Niven’s assessment of the plaintiff’s being unlikely to return to the workforce. ”
[30] Purkess v Crittenden (and Watts v Rake as explained by it) are concerned with the situation where the plaintiff has made out a prima face case that the condition in which he or she is was the result of the defendant’s negligence but the defendant wishes to rely on an alternative internal cause as the reason for the incapacity or as a condition that would have caused at least the same level of incapacity at some definable future time. As the joint judgment of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden puts it, in the absence of such evidence, and if the plaintiff’s evidence is accepted, no issue will arise as to the existence of a pre-existing condition or its prospective results or its relationship to the disabilities complained of at the trial.
[31] A defendant who wishes to rely on such matters carries an evidential onus, one of adducing evidence, in the plaintiff’s case or his own case, of a present existing condition and its future probable effects or its actual relationship to the incapacity. While the persuasive onus of causation remains on the plaintiff, the evidence adduced by the defendant must establish with some reasonable measure of precision what the pre-existing condition was and what its future effects, both as to its nature and their future development and progress were likely to be.
[32] The first sentence of paragraph [53] of the learned trial judge’s reasons (quoted above) articulates a conclusion that, because the doctors were unable to prophesy when the pre-existing degeneration of the spine would probably have reduced the appellant to the same condition as he was following the incidents, the persuasive onus of proving causation by those incidents of the level of disability suffered had been discharged. It was submitted that the learned trial judge had erred by requiring a higher standard of precision than required by law. Reliance was placed on Wilson v Peisley (1975) 7 ALR 571 as an example of a case where a latent psychological condition that could or might have been triggered by not unusual or not unlikely events in the ordinary course of life should be taken into account in assessing damages. Barwick CJ said that that case was not one where, as had been the case in Watts v Rake and Purkess v Crittenden, the question of onus of proof arose. The existence of the pre-existing condition and the propensity for harm had been fully made out.
[33] In the present case, it is apparent from paragraph [51] of the learned trial judge’s reasons (quoted above) that it was accepted by both sides that Watts v Rake and Purkess v Crittenden were relevant. The learned trial judge found, as in my view she was entitled to do on the evidence, which she reviewed carefully, that the appellant failed to prove with sufficient precision the point at which liability for the respondent’s condition should cease because natural causes, without acceleration caused by the incidents, would have in any event caused him to be in the same condition by then.
[34] As Wilson v Peisley and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643 say, it is necessary, in the situation where proof is necessarily unobtainable, to assess the degree of probability that an event would have occurred or might occur and adjust damages to reflect the degree of probability. It will therefore be necessary to give consideration to whether this principle was given effect to, and if so, to an extent within a proper exercise of discretion, in assessing damages in this case.
[35] It was accepted by the learned trial judge that it was probable that without the subject incidents, the plaintiff’s degenerative condition of his spine would have interfered at some point with his capacity to continue with his work as a tyre fitter and his capacity to undertake alternative forms of employment. She said that that probability had to be assessed against his work history that showed that he was a good and conscientious worker and that the degenerative spine was asymptomatic until the incident in February 1998. The appellant had submitted that the discount for the future economic loss component should be in the vicinity of 50% to take into account the contingency that the plaintiff may have become unemployable as a tyre fitter and also to take into account that the plaintiff had a residual earning capacity for sedentary work. (The existence of residual earning capacity was expressly rejected by the learned trial judge.)
[36] It had been submitted on behalf of the respondent (who was 44 years of age at trial) that future economic loss should be calculated on the basis of reducing the termination date of his working life to 60 years of age instead of 65 and using a particular sum per week, which did not allow for what was said to be a trend of the respondent’s earnings increasing, and then discounting by one third. The submission was that no further discount was required as that approach adequately allowed for the vicissitudes of life and the probability that at some time in the future the degenerative spine would have affected the respondent’s capacity to work in whole or in part.
[37] It will be necessary to return to this issue later since the sum proposed as the rate at which weekly loss of earnings should be adopted for calculation purposes was itself attacked. It is sufficient to say at this point that the learned trial judge took the view that the respondent retained no residual working capacity and otherwise adopted the respondent’s methodology.
[38] The attack on the sum adopted as the basis for calculating economic loss ($642.00 per week) focussed on several issues. One was the prospect of employment by people named Osborne who had demonstrated an interest in buying the Beaurepaires business. Another was the risk that the respondent might not have continuous employment. Another was whether he would be able to maintain his earnings at the level achieved at the time he ceased work. Objection was taken by counsel for the respondent that the appellant’s submissions in this regard raised a number of matters not canvassed before the learned trial judge. It was submitted on the basis of University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, Coulton v Holcombe (1986) 162 CLR 1, and Franklin v Rabmusk Pty Ltd [1993] 1 QdR 258 that the appellant should be precluded from relying on them now for that reason.
[39] Metwally was concerned with an attempt to litigate, on appeal, the constitutional validity of legislation, contrary to an express acceptance of validity at trial. Coulton v Holcombe was a case conducted at first instance as an argument whether an application made after a Ministerial declaration that further licences would not be granted after a specified date could be treated as an amendment of an application made before that date. An attempt to litigate the validity of the declaration by the unsuccessful party, which was permitted in the Court of Appeal of New South Wales, was disallowed by the High Court. In Franklin v Rabmusk, the issue sought to be litigated on appeal was one which, had it been litigated at trial, would have probably led the other side to call additional evidence to deal with it.
[40] Counsel for the appellant did not dispute that certain issues were not expressly explored in the submissions to the learned trial judge. However it was submitted that it was permissible on appeal to make submissions where they were based on evidence given at the trial. The appellant’s argument was essentially that this case is distinguishable from those where an appellant was not entitled to raise an argument not raised below because the matters it now wishes to emphasise do not involve a departure from the case conducted at trial; all that is being done is that evidence on the issues is to be subjected to more detailed analysis without changing the essential nature of the case or causing other prejudice to another party. I am not persuaded that in this case it is impermissible to do that much in support of its case. This is subject to specific references later to practical difficulties caused by the way the case was developed below.
[41] The matters relied on by the appellant that fell into the category objected to are concerned with the respondent’s prospects of earning the level of income relied on by the learned trial judge for the period allowed by her. The evidence established that the respondent had accepted an offer of employment from the proprietor of another tyre outlet, Mr Farrell, at about the time of ceasing employment. Mr Farrell’s understanding was that the respondent would start when his back injury improved. The position would be of the nature of assistant manager and Mr Farrell would have started him on the award wage, about $30,000 base salary, with some prospect of increase later if warranted.
[42] There was also a statement admitted, without a request for the makers to be cross examined, from Mr and Mrs Osborne who had investigated the possibility of purchasing the Beaurepaires business at about the time it closed. They had in mind keeping the respondent as an employee at a similar wage to that which he had been earning. They had not finally decided to purchase the business but were negotiating about the rent. They decided not to buy, for a combination of reasons including concern over the profit level and the respondent’s injury. The evidence given by them was that there was a 70% chance they would have purchased the business if the respondent had not been injured.
[43] The criticisms that the appellant wished to make in the appeal in regard to this evidence were several. One was that it was unduly unfavourable for the learned trial judge to accept uncritically the Osborne’s statement. The difficulty with that submission is that while at least some of the matters raised, by way of criticism in submissions before us, may have been fruitfully explored at the trial had the Osbornes been required for cross examination, the statement was allowed into evidence without doing so. Their lack of experience in the tyre fitting business, whether the proposed introduction of their son into the business had implications for the future employment of the respondent and what they would have done, had the business proved less profitable than projected, to his employment or remuneration spring to mind. The problem is compounded by the fact that the criticisms were not advanced by way of comment on the evidence before the learned trial judge. In the circumstances, while the question of weight of evidence is always relevant, it is not surprising that the learned trial judge acted on what was in the statement about the Osbornes’ plans.
[44] The same may be said about the criticism that the learned trial judge did not have regard to evidence that the respondent had accepted the offer from Mr Farrell to work for him. Reading the evidence of Mr Farrell and the respondent suggests that the arrangement between them was rather informal and it would not have been surprising if the respondent had accepted a better offer had the Osbornes purchased the business. Further, the respondent said that he was owed money by the business and would have stayed if it had kept operating.
[45] There was a variety of ways in which the learned trial judge might have set the baseline for likely earnings. In a case of this kind, a pragmatic solution is necessary. The solution she chose was to calculate a figure representing 70% of the wages the respondent was earning at Beaurepaires together with 30% of the wages he would have earned working for Mr Farrell, without allowance for future increases. Two of the criticisms made of this methodology, that the risk that the Beaurepaires/Osborne business may not have been able to afford to maintain the level of wages earned previously and that the hours he worked may fall because of a desire to slow down, are relevant factors irrespective of whether they were specifically mentioned below or not. His preference not to work on Saturdays or be on call was in evidence. So were the possibilities that he may not have continuous employment because of the nature of the industry, that he might have a problem with a particular employer and the fact that the arduous nature of work as a tyre fitter meant that those engaged in that occupation often ceased working in that capacity prematurely. (The respondent was in a managerial position requiring some tyre fitting work rather than full time work as a tyre fitter.) Absence of specific reference to them in calculating the base figure would assume significance if there was insufficient allowance made elsewhere for contingencies. Lack of detailed explanation of what was taken into account and not taken into account in allowing for contingencies means that a judgment must be made as to what allowance was appropriate. If the allowance was within appropriate limits, absence of detail is not of decisive significance.
[46] Damages calculated for past economic loss were based, except for the first 2 weeks, on the net loss of $642 per week. No allowance for contingencies of any kind was made. The appellant submitted that the medical evidence raised at least a possibility that the respondent may have had significant back problems, irrespective of the three injuries by the time of trial. It was submitted that there should have been some discount for the possibility. It was submitted that the learned trial judge should have allowed for it even though the time of the likely onset of the symptoms could not be established with sufficient precision to discharge the evidential burden referred to in paragraphs [28] and [29] above. Submissions were also made attacking the adoption of the weekly sum of economic loss but, as previously observed, that attack fails.
[47] The respondent repeated a fairly conventional type of submission which was made at the trial that there was no reason to discount the award for past economic loss at all. It was submitted that the possibility that the respondent’s working patterns would have been interfered with by his back becoming symptomatic was minimal. In any event if the possibility eventuated, the likelihood would be that absences from work would be covered by Workers Compensation or, at least, paid sick leave. It was also submitted that the assumed loss per week was already subject to discount because it did not allow for possible increases in wages whether the respondent was employed by the Osbornes or Mr Farrell. It was submitted that no token discount was required to reflect a mere possibility and in any event a token discount would not have justified interference with the award as a whole, applying the principle in Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258.
[48] One of the specific complaints by the appellant was that the learned trial judge did not find that the respondent had a residual working capacity both before and after trial. This issue was explored in the appellant’s submissions at trial. The difficulty with it is that while there were suggestions that jobs such as manager of a motel, managing a caravan park, real estate agent or salesman of some sort could be explored, the qualification that it would have to be within his physical capabilities was made. The learned trial judge accepted medical evidence that the respondent was unlikely to return to the workforce. No reason was convincingly established that the finding of fact in that regard could not reasonably be made. The appellant has failed to establish any error on the part of the learned trial judge in that regard.
[49] The learned trial judge, having rejected the appellant’s argument that there was a residual earning capacity meriting 50% reduction in damages, did not apply any discount to the sum. This must be taken to be a deliberate decision on the learned trial judge’s part since the issue was raised in the appellant’s address below. In my view the learned trial judge was entitled to apply the concept contended for by the respondent. There was no error in failing to discount the sum for past economic loss.
[50] With regard to future economic loss, the reduction of the respondent’s future period of earnings by 5 years and reducing the sum derived by applying the 5% tables by one-third is equivalent to a reduction of almost 45% for contingencies if the sum had been calculated on the assumption of a working life until the respondent was 65 and then reduced for contingencies. The evidence is that there was a degree of uncertainty when any of the effects of the pre-existing asymptomatic degeneration of the respondent’s back would manifest themselves. The learned trial judge accepted that the respondent’s methodology allowed adequately for the vicissitudes of life and the probability that at some time in the future the degenerative spine would have affected his capacity to work in whole or in part. Further, on this basis, the reduction according to the respondent’s methodology is not far removed from the reduction of about 50% contended for by the appellant. In my view the award for future economic loss was within the range of a proper exercise of discretion.
[51] For the reasons given, I would dismiss the appeal and order that the appellant pay the respondent’s costs of and incidental to the appeal to be assessed.