Qantas Airways Ltd v Fisher[2014] QCA 329

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree the appeal should be dismissed with costs for the reasons given by Henry J.

[2] MULLINS J:  I agree with Henry J.

[3] HENRY J:  The respondent plaintiff sustained a neck injury while working for the appellant defendant as a baggage handler.  He claimed damages for personal injury and consequential loss caused by the negligence or breach of contract of his employer.  At the District Court trial liability was admitted but quantum was in issue.  The learned trial judge awarded damages in the amount of $225,035.

[4] The appellant defendant appeals that judgment, alleging errors in the assessments of $44,687 for past economic loss and $150,000 for future economic loss.

Background

[5] The respondent commenced working as a baggage handler for Qantas in Cairns in 1993.[1]  On 7 February 2011 he was pulling forcefully on the strap of a container at work.[2]  The strap broke.  He fell backwards onto a hard steel floor and felt pain to the back of his neck (“the incident”).

[6] The respondent’s neck pain continued through the balance of his shift and his ensuing rostered days off.  It continued on his return to work and he complained of it.  He was placed on light duties for some time but acquiesced to being placed back on full duties despite remaining in pain.[3]  His ongoing neck pain made it difficult to perform his work and forced him to curtail his leisure activities.[4]

[7] Believing he could not continue with the physical work of baggage handling because of his neck pain he eventually applied for and received a voluntary redundancy package, ceasing work with the appellant on 28 May 2013.[5]

[8] In 2005 the respondent had commenced a business called “Need A Ute”.[6]  It involved him, when not rostered for work at Qantas, making himself, his utility motor vehicle and some removalist equipment available for hire to load, transport and deliver furniture and rubbish.  He stated he intended to continue that business and to continue working at Qantas until retirement age.[7]

[9] He continued to operate his “Need A Ute” business after finishing work for Qantas but found it aggravated his neck pain.  Such work as he was able to do was not profitable.[8]

[10] On 2 December 2013, over six months after finishing work at Qantas, the respondent commenced work as a bus driver for Coral Reef Coaches, undertaking transfers of tourists between the airport and accommodation.  He was unable to perform this work for more than three days a week.

The Decision Below

[11] The learned trial judge favoured the preponderance of expert opinion as to the nature of the injury occasioned to the respondent in the incident.  He found the incident aggravated a previously asymptomatic degenerative spondylosis of the respondent’s cervical spine.[9]

[12] His Honour found that if the respondent had continued as a baggage handler with the appellant his degenerative spondylosis would have become symptomatic within five years in any event.[10]

[13] In calculating a past economic loss award of $44,687 his Honour said:

“Past economic loss

[30]For the purposes of calculating past economic loss it is agreed between the parties that the redundancy payment which the plaintiff accepted on 28 May 2013 should be ignored.

[31]As at the date of the redundancy the plaintiff was earning $1,063.00 net per week.  I accept that the plaintiff would have continued working for the defendant, but for the symptomatology brought on by the incident, for five years longer.  This represents the extent to which the symptomatology brought to light by the incident curtailed his working life as a baggage handler in the employ of the defendant.  I accept that the plaintiff was a stoic and committed long term employee who was physically fit and, but for the degeneration present within his spine, able to continue discharge of the responsibilities of a baggage handler.

[32]In calculating damages for both past and future economic loss I will ignore income generated from the Need A Ute business as it appears unaffected by the consequences of the incident and largely insignificant in any event.

[33]When he ceased working for the defendant the plaintiff was earning net income of $1,063.00 per week.  Had he not been injured I find that he would have continued working for the defendant in his former capacity and would have earned $49,958.00 net to date in this regard.  This represents his earning capacity but for the consequences of the incident.  To 5 May 2014 the plaintiff earned $4,459.00 as a bus driver with Coral Reef Coaches and he continues to earn an average of $203.00 net per week.  His total notional income from Coral Reef Coaches therefore equates to $4,459.00 plus four weeks at $203.00 or $5,271.00 to date.  I am satisfied that the plaintiff has appropriately mitigated his loss by obtaining the necessary licence to pursue employment as a bus driver and then obtaining employment three days a week in this capacity.  I therefore find that the plaintiff has a total claim for past economic loss of $49,958.00 less $5,271.00 leaving an amount of $44,687.00.”

[14] After dealing with interest on past economic loss and past loss of superannuation benefits his Honour dealt with future economic loss, arriving at an award of $150,000.  His Honour said:

“Future economic loss

[36]Applying the plaintiff’s net weekly income when he ceased employment with the defendant of $1,063.00, deducting the $202.00 net per week he currently earns as a bus driver results in a loss of $861.00 net per week.  I will allow a period of five years from when the plaintiff ceased employment with the defendant on 28 May 2013 before his symptomatology was such as to preclude him from further employment with the defendant in any event.  He was stoic enough to persevere in his employment with the defendant for two years following the incident and this is reflected in the approach I have adopted.  This results in a calculation of $861.00 per week over four years as a starting point for future economic loss.  Applying the 5% table of multipliers this results in an amount of $163,245.00.  I will discount this sum for contingencies given the fragile state of the plaintiff’s spine which exhibits extensive degenerative changes.  In my view an appropriate discounting of damages for future economic loss results in an award of $150,000.00.”

Grounds

[15] The grounds of appeal are:

“(a)That in assessing the award for past economic loss in the sum of $44,687, and interest and superannuation thereon, the learned Trial Judge erred in:

(i)Finding the Plaintiff had appropriately mitigated his loss in respect of past economic loss prior to trial;

(ii)Finding that the Plaintiff had earned income of no more than $5,271 for the period from 28 May 2013 to 27 May 2014;

(iii)Finding that the Plaintiff had the capacity to earn income of no more than $5,271 for the period from 28 May 2013 to 27 May 2014;

(iv)Finding that the Plaintiff’s economic loss caused by the injury for the period 28 May 2013 to 27 May 2014 was properly measured by the difference between his potential earnings with the Defendant and the total earnings he had received during that period;

(v)Failing to take account of the earning capacity demonstrated by:

A.the Plaintiff conducting his “Need A Ute” business for the period 28 May 2013 to 27 May 2014;

B.the Plaintiff being able to work as a baggage handler on a full time basis up until 28 May 2013.

(vi)Finding that it was appropriate to ignore the Plaintiff’s work performed in his “Need A Ute” business for the period 28 May 2013 to 27 May 2014 when assessing the Plaintiff’s past economic loss;

(b)That in assessing the award for future economic loss in the sum of $150,000 and superannuation thereon, the learned Trial Judge erred in:

(i)Finding that the Plaintiff’s earnings at the date of trial were an average of $202 per week, when such finding was against the evidence or against the weight of the evidence;

(ii)Finding that the Plaintiff’s actual earnings at the date of trial reflected the full extent of the Plaintiff’s earning capacity;

(iii)Finding that the difference between the Plaintiff’s earnings at the date of trial and his pre-injury earning capacity was $861 per week;

(iv)Finding that the difference between the Plaintiff’s earnings at the date of trial and his pre-injury earning capacity represented the Plaintiff’s loss of earning capacity caused by the injury;

(v)Failing to have regard to the Plaintiff’s evidence that he would work greater hours with his current employer than he was working at the date of trial;

(vi)Failing to have regard to the earning capacity demonstrated by the Plaintiff’s conduct of his “Need A Ute” business;

(vii)Finding that the Plaintiff had appropriately mitigated his loss in respect of future economic loss;

(viii)Finding that an appropriate discount for contingencies of the award for future economic loss was 8.11% given the finding that the Plaintiff’s spine was “fragile”.”

[16] The appellant’s written and oral submissions did not progress through each of those grounds individually.  Rather the appellant argued the appeal by reference to a number of complaints, most of which tended to be relevant to multiple grounds, albeit not specifically cross-referenced to them.

[17] In summary those complaints took the form of seven alleged errors:

(1)failure to properly assess earning capacity;

(2)failure to have regard to the earning capacity demonstrated by the respondent continuing to work as a baggage handler;

(3)wrongly ignoring the income from the “Need A Ute” business;

(4)failure to properly consider the true extent of the respondent’s earning capacity;

(5)underestimate of the respondent’s future earning capacity;

(6)error as to the period of future economic loss;

(7)inadequate discount for contingencies of only 8.11 per cent.

[18] It is convenient to deal with the arguments advanced in the appeal by reference to those seven alleged errors because that is how the appellant argued the appeal.  The process of doing so will have the practical effect of addressing the grounds of appeal as the appellant argued them.

(1)Failure to properly assess earning capacity

[19] The appellant complains the learned trial judge’s assessment of economic loss was infected by an error of principle.  It is said his Honour assessed loss of earnings whereas he should have assessed loss of earning capacity.  This alleged error is an over-arching one, around which alleged errors 2 to 5 inclusive were largely framed.

[20] It is well established that where a plaintiff’s capacity to work is impaired as a result of negligently inflicted injury, the loss to be assessed is the loss or diminution of earning capacity.  In Arthur Robinson (Grafton) Pty Ltd v Carter[11] Barwick CJ explained:

“The respondent is not to be compensated for loss of earnings but for loss of earning capacity.  However much the valuation of the loss of earning capacity involves the consideration of what moneys could have been produced by the exercise of the respondent’s former earning capacity, it is the loss of that capacity, and not the failure to receive wages for the future, which is to be the subject of fair compensation.”

[21] Implicit in those remarks was an acknowledgment that consideration of loss of likely earnings may inform the valuation of lost or diminished earning capacity.  As much was expressly acknowledged when Barwick CJ went on to observe:

“Of course, the rate of wages being earned and the rate of wage likely to be earned in the future afford a basis for assessing compensation for the loss of earning capacity.”[12]

[22] In practice, consideration of loss of likely earnings is a common incident of the process of assessing loss of earning capacity.  That may reflect the practical reality that it is a topic about which relevant evidence can ordinarily be adduced.  However, it also reflects the requirement reiterated in Medlin v State Government Insurance Commission[13] that a plaintiff in a case of this kind must not only establish a diminution of earning capacity but also that the diminution is or may be productive of financial loss.  The relevance of evidence of loss or likely loss of earnings to both requirements is self evident.

[23] The reliability of evidence of loss or likely loss of earnings as an aid to assessing the financial loss produced by diminution of earning capacity is inevitably likely to be greater the shorter the period of forecast loss is.  For example, in Medlin v State Government Insurance Commission[14] the plurality considered that if the plaintiff’s retirement, four and a-half years prematurely from his position as a university professor, was caused by his accident-related loss of earning capacity, then:

“[t]he plaintiff would be prima facie entitled to recover, as damages for loss of earning capacity, the difference between what he would have earned during those four and one half years in his University appointment and any amount which, notwithstanding his reduced earning capacity, he had earned or could reasonably be held capable of earning during that period.”

[24] In the present case, the period of forecast loss after cessation of employment with the appellant was only five years.  It is therefore unremarkable that the evidence of loss or likely loss of earnings was apparently regarded by the learned trial judge as affording a reliable basis for assessing compensation for the diminution of earning capacity.

[25] The problem, if there is one, is the exercise carried out by his Honour is susceptible to the impression that it was not an assessment of loss of earning capacity because his Honour did not articulate the legal principles applicable to the exercise he undertook.  However that impression fades on analysis for three reasons.

[26] Firstly, it is not the law that the reasons of trial judges must recite a well established matter of principle whenever it is being applied.  Ultimately the purpose of reasons for judgment is not to provide a legal treatise on the area of law involved.  It is to explain how and why the decision has been arrived at in sufficient detail to allow the parties to be able to test the decision on appeal.[15]  While an express statement of relevant legal principle may assuage concerns as to whether the correct principle has been applied, its absence does not mean the correct principle has not been applied.

[27] Secondly, there was reference in his Honour’s reasons to what the respondent would have earned, had he remained employed with the appellant, as representing “his earning capacity but for the consequences of the incident”.[16]  This bespeaks an awareness that the exercise in which his Honour was engaged was an assessment of loss of earning capacity and the financial loss thereby occasioned.

[28] Thirdly, as already discussed, assessment by reference to loss of earnings was in the circumstances of this case an appropriate method of assessing loss of earning capacity.  Reference to loss of earnings does not mean there was a failure to assess loss of earning capacity.  To the contrary, it was to be expected in a case like the present and is consistent with the trial judge engaging in an assessment of the loss occasioned by the diminution in the respondent’s earning capacity.

[29] The complaint that the trial judge failed to properly assess loss of earning capacity has not been made out in isolation merely by reason that his Honour did not more clearly announce that was the exercise being undertaken or by reason that he had regard to loss of earnings in making that assessment.  In the present context for the appellant to demonstrate a failure to properly assess loss of earning capacity it must do so by reference to the assumptions and methodology actually applied in the assessment process.[17]

[30] This the appellant sought to do in respect of alleged errors 2 to 5 inclusive.  As will be seen, beneath the veneer of alleged error 1, the real premise of those four alleged errors is that the trial judge did not consider or give proper weight to particular features of the evidence.

(2)Failure to have regard to the earning capacity demonstrated by the respondent continuing to work as a baggage handler

[31] The appellant emphasised the respondent continued to carry out full duties as a baggage handler for a period of over two years following the incident prior to ceasing work under the redundancy arrangement on 28 May 2013.  It is asserted the respondent “gave up his job with Qantas earning approximately $1,000 net per week in favour of manual self-employment … which work the learned trial judge found to be unprofitable for no reason associated with his neck pain”.[18]  The appellant complained the learned trial judge calculated the respondent’s loss of earnings from the day he ceased work with Qantas as if the respondent had suffered a loss of income of $1,000 per week.  This is at odds, it was submitted, with the supposed fact the respondent chose to give up his job with Qantas and the supposed fact that in continuing to work as a baggage handler for over two years after the incident he demonstrated he had retained a significant earning capacity.

[32] The appellant’s submissions are premised on an unrealistic interpretation of the facts.  The implication is that the respondent was capable of working as a baggage handler following the incident and gave up working as a baggage handler, as a matter of preference, to pursue his own business.  The notion that the respondent gave up his job as a matter of choice, driven by a personal preference to pursue his Need A Ute business is not supported by the evidence or the trial judge’s findings.

[33] The unchallenged findings of the trial judge show that following the incident the respondent experienced significant pain and discomfort in his neck which was aggravated by heavy lifting.[19]  His work involved heavy repetitive work and post-incident he experienced difficulty and discomfort in performing his work, a fact found to have been corroborated by other witnesses.[20]

[34] The true position as explained by the respondent was:

“I was suffering constant pain in my neck which was worse every day I went to work at Qantas.  The pain was really bad and I was really struggling.  I couldn’t sleep at night due to the pain.  I knew I couldn’t keep going.  I recall one or more of the doctors I saw telling me that I needed to seek out lighter [employment]…  However I didn’t need the doctors to tell me that.  I knew because of the amount of pain I was in that I had to give up the baggage handling.  Then in October 2012 the opportunity of a voluntary redundancy came up.”[21]

[35] The respondent’s evidence explained the ensuing process of successfully applying for the voluntary redundancy which culminated in him ceasing work on 28 May 2013.  He went on to say:

“The voluntary redundancy would have been available to me regardless of my injury.  However but for my neck pain I would never have considered taking it.  I would have stayed working as a baggage handler as long as I could…

I really didn’t know how I was going to cope without my job at Qantas but I simply couldn’t continue working there with the amount of pain I was in.

My wife did not want me to cease work at Qantas or take the voluntary redundancy…  But even though she wanted me to keep working I just could not continue with the amount of pain I was in carrying out my work as a baggage handler.”[22]

[36] The trial judge expressed no reservation about this aspect of the respondent’s evidence.[23]  The trial judge’s acceptance of the evidence is the obvious reason why he considered the respondent “stoic” for persevering in his job for as long as he did post-incident.[24]

[37] Thus it can be seen the alleged error is based on a false premise and ground (a)(v)B must fail.  The fact the respondent managed to continue to work for the appellant for as long as he did, did not demonstrate he had the capacity to continue to earn income from similarly demanding work.  To the contrary, despite having done his stoic best, he no longer had such a capacity.

[38] The nature of baggage handling work the respondent was eventually no longer able to perform demonstrated nothing positive as to the respondent’s earning capacity in the wake of his cessation of employment with the appellant.  His Honour was correct not to regard it as indicative of the respondent’s earning capacity.  However, the respondent’s remuneration prior to ceasing work, which the trial judge correctly found to be $1,063 net per week, provided a helpful guide as to the value of his income earning capacity but for the incident and was unremarkably adopted by the trial judge for that purpose.[25]

(3)Wrongly ignoring the income from the “Need A Ute” business

[39] The appellant submitted the trial judge wrongly ignored the respondent’s conduct of the Need A Ute business as demonstrating his capacity to earn income, particularly given he earned $55 per hour in this employment and intended upon taking his redundancy to build up the business and make it profitable.[26]  It was also submitted the nature of the physical work he performed in that business demonstrated he had a capacity to earn income but he made a choice to exercise it in what turned out to be a non-profitable way.[27]

[40] Again the appellant’s submissions do not capture the real effect of the evidence.  The fact the respondent charged his customers $55 an hour ought be understood in light of that figure not being profit.  It was income subject to reduction to cover income tax and operating costs (other than dump fees).[28]  Further, the respondent’s hope that he might build up the business and make it more profitable was an aspiration subsequent to and not causative of him taking the redundancy.[29]  Moreover, it was not realised.  The respondent’s inability to build the business up, despite increased advertising and other attempts to seek out more work eventually resulted in him seeking other employment.[30]  The respondent’s inability to improve the profitability of the business meant there was no material change in the income of the business.  Because that income appeared unaffected, as the judge so found,[31] it was logically irrelevant to quantifying the financial loss occasioned by the respondent’s loss of earning capacity.  The trial judge was therefore correct to ignore it and ground (a)(vi) must fail.

(4)Failure to properly consider the true extent of the respondent’s earning capacity

[41] The appellant also implied the trial judge ignored the nature of the physical work performed by the respondent in his business and the supposed fact it demonstrated a capacity to earn an income.  That is not what his Honour did in ignoring the income of the business in the way explained above.  Earlier in his reasons the trial judge alluded to the physical work performed by the respondent in his business but also noted the severe aggravation of neck pain experienced when performing that work.[32]  The evidence on that topic was unsurprising and hardly helpful to the appellant’s case.  The respondent said:

“At times I suffer a severe aggravation of neck pain when performing my “Need A Ute” activities.  Say for example on occasions where I have been unloading a heavier item of furniture sometimes when I am getting it to the pivot point where I can drop it off the back of the ute I will hurt my neck.  Sometimes it will feel like that hot poker going through my neck.

If my neck pain is aggravated by doing the ute work I can go home and lay down and have a rest.  (Unlike bus driving where I can’t lay down or relax or get into a position where I can get comfortable and relieve the pain).  I prefer to work for myself so that I can have breaks and lie down.  I prefer the Need A Ute work because I am able to rest when I need to, but that work is not profitable.”[33]

[42] As that evidence demonstrates, the respondent’s dilemma was that he could to an extent accommodate the pain involved in physical work when engaged in his business by resting when necessary but that business was not profitable.  On the other hand, while paid work for an employer might be more remunerative, it would be unlikely to involve the option of resting when necessary.  In short, the work performed by the respondent in his business did not demonstrate a capacity to perform similar work on the more sustained basis likely to be expected of him as an employee.  There is therefore no substance to grounds (a)(v)A or (b)(vi).

[43] As to the respondent’s work as an employee with Coral Reef Coaches the appellant complained the learned trial judge’s finding that the respondent earned an average of $203 net per week and proceeded to use that figure to assess past economic loss ignored evidence of the respondent’s actual capacity.  The evidence which was said to demonstrate this was that within the four week period prior to trial the respondent’s average net weekly income was $450 per week.  The appellant submitted this evidence demonstrated a capacity to earn income of not less than $450 per week in addition to a capacity to earn further income from the respondent’s Need A Ute business.  Once again the appellant submitted this constituted a failure to assess the respondent’s loss by reference to his loss of earning capacity.

[44] Once again the factual premise of the submission is unrealistically favourable to the appellant.  The respondent’s hours and thus his income from Coral Reef Coaches varied.  He explained:

“The work is very variable.  On some weeks I have been given no work.  Other weeks I get anywhere between 1 and 3 days per week.  If there is work available I take it.”[34]

The variability of hours available and thus income was an inherent aspect of the respondent’s job with Coral Reef Coaches.

[45] It must be remembered the exercise undertaken by his Honour involved assessing the financial loss occasioned by the diminution of earning capacity.  In conducting the exercise it would have been a misleading use of the evidence about the respondent’s job with Coral Reef Coaches to only refer to a high point period when the respondent happened to work more hours than average.  The average weekly income was the more reliable indicator for the purpose of the exercise.

[46] On analysis the reasoning underlying the appellant’s complaint is that because the respondent was able to work more hours per week than he averaged with Coral Reef Coaches it should have been assumed there existed a job he could obtain at which he could always work the high point periods he only sometimes worked at Coral Reef Coaches.  The premise that the respondent could obtain such a job was not supported by evidence.  In the absence of such evidence there was no error involved in referring to the respondent’s average income with Coral Reef Coaches as an aid to the assessment process.

[47] The appellant also highlighted evidence of 14 weeks in which the respondent had earned some income from his Need A Ute business and also worked for Coral Reef Coaches to submit the respondent had demonstrated a capacity to earn income beyond that which he earned working three days a week for Coral Reef Coaches.[35]

[48] This submission implied the respondent had the capacity to engage in remunerative work as an employee for more than the three days a week on which he was committed to working for Coral Reef Coaches.  Thus, it was submitted, the respondent had not been exercising his earning capacity for full remunerative benefit.  The submission assumes that because the respondent could work at his own pace in his business on days he was not working for Coral Reef Coaches, he could engage in more remunerative work as an employee than in his business on those days and thus had a higher capacity to earn than was apprehended by the trial judge.  The appellant’s unspoken premise was employed work in which he could work and rest at his own pace was available to the respondent.  If that were correct then, depending on such work’s remuneration, there would be some substance to the appellant’s complaint that the trial judge’s reference to what had actually occurred and the income loss associated with it was not an appropriate method to use in assessing the financial loss caused by the diminution of earning capacity.  It is not correct.  As earlier observed, the method by which the respondent coped with pain by working and resting at his own pace at his own business was unlikely to be a realistic option in paid employment.

[49] The appellant’s submission contended, at least by implication, that the respondent had not mitigated his loss.  The trial judge’s reasons in respect of past economic loss found the respondent had “appropriately mitigated his loss by obtaining the necessary licence to pursue employment as a bus driver and then obtaining employment three days a week in this capacity.”  Ground (a)(i) of the appeal complains this was an error.  The respondent’s securing of work for three days a week with Coral Reef Coaches obviously went to mitigation of loss.  The appellant’s argument, seemingly, was the respondent did not adequately mitigate loss because the respondent could on the other working days of the week have procured other paid work which would have been more remunerative than his Need A Ute business.

[50] The respondent’s evidence was to the effect that while he had been able to find alternative employment, in the form of bus driving for Coral Reef Coaches, he had limited that work to three days a week because he could not do more than that because of pain.  He explained:

“The pain in my neck gets worse when I have to sit driving the bus.  After about an hour of driving the pain starts to worsen.  The longer I drive the more I can feel the pain in my neck building up.  The pain continues to build up if I work more than 1 day.  By the third day I am in much more pain that at the end of the first day.  The more days (and hours) I work the worse it gets.”[36]

[51] While this evidence was not expressly discussed in the trial judge’s reasons, it must have been accepted given his Honour’s expression of satisfaction about appropriate mitigation of loss.

[52] The respondent had shown his condition did not allow him to secure more prolonged weekly employment, other than through his additional work at his own pace in his Need A Ute business.  There was therefore an evidentiary burden on the appellant, if it sought to allege a failure to adequately mitigate loss, to show what alternative more remunerative opportunities were realistically open to the respondent.[37]  The appellant did not produce such evidence, save arguably for some evidence discussed below in respect of the alleged underestimate of the respondent’s future earning capacity.  The trial judge was entitled to find the respondent had appropriately mitigated his loss.

[53] As the appellant emphasised, the absence of evidence adduced by it of the existence of realistic more remunerative employment opportunities did not mean the trial judge was bound to find the worth of the respondent’s residual earning capacity was confined to the worth of what he had actually earned.[38]  Nor did it preclude the appellant from advancing arguments by reference to the evidence actually adduced to try and demonstrate the respondent had a higher residual earning capacity than he had actually achieved.  However those arguments were unsuccessful for reasons already given.  Grounds (a)(i) and (b)(vii), which relate to failure to mitigate loss, have not been made out.

[54] Various of the appellant’s arguments dispensed with so far were apparently advanced in combined support of grounds (a)(ii), (iii) and (iv).  The failure of those arguments means those grounds must also fail.

(5)Underestimate of the respondent’s future earning capacity

[55] The appellant submitted there was a significant body of evidence to suggest the respondent had a greater future earning capacity than the trial judge had assessed by reference to the respondent’s actual work activity engaged in since ceasing employment with the appellant.  That submission in part repeated and relied upon arguments already dispensed with above.  To the extent it drew on additional arguments they were as follows.

[56] The appellant submitted the trial judge ignored three pieces of evidence from the respondent.  They were, firstly, that if there were more days available to him driving a bus he would probably take them, secondly, that he had not tried driving a bus for 38 hours per week and, thirdly, that he would give away his Need A Ute business if he could get a job that suited his skills and ability that did not aggravate his neck.

[57] The trial transcript and exhibits occupy the first 1,490 pages of the appeal record.  The absence of specific reference in the trial judge’s reasons to three discrete pieces of evidence contained within that record is hardly surprising.  The above three aspects of the respondent’s evidence did not fall for consideration in isolation.  They formed part of a much broader body of evidence from the respondent.  The learned trial judge was entitled to form a view of the respondent’s evidence overall rather than by reference only to those pieces of evidence.

[58] The respondent’s acknowledgement in cross-examination that if more days were available to him with Coral Reef Coaches he would probably take them needed to be considered in light of the answer he gave immediately thereafter, indicating that he was not sure that he would be able to drive 38 hours per week.[39]  It also fell for consideration in the light of his evidence about the accumulation of pain experienced when working consecutive days, particularly into a third day, and his evidence that he did not think realistically that he could work more than three days per week with Coral Reef Coaches.[40]  In a similar vein his acknowledgement in cross-examination that he did not try driving a bus for 38 hours per week fell for consideration in light of his evidence that he did not think he could work five days per week as a bus driver.[41]  It was open on the whole of the evidence for the trial judge to conclude, as he implicitly did, that the respondent was only able to work three days a week for Coral Reef Coaches.  Ground (b)(v) must therefore fail.

[59] Finally, the respondent’s acknowledgement that he would give away his Need A Ute business if he could get a job that suited his skills and ability that did not aggravate his neck fell for consideration in light of the improbability discussed above of an employer providing him with employment in which he could work and rest at his own pace, as he did in his business, so as to accommodate his neck pain.

[60] In short, the superficial force of the evidentiary points highlighted by the appellant falls away when they are considered in the context of the whole of the evidence.  There is nothing so compelling in those points to suggest, because they were apparently not regarded as determinative, that there must have been a failure to have regard to them.

[61] The appellant also submitted the trial judge ignored the evidence of orthopaedic surgeon Dr Winstanley that the respondent would be fit to work as a courier driver, taxi driver or a truck driver.  Once again that evidence did not fall for consideration in isolation.  For example, orthopaedic surgeon Dr Cook opined:

“…[T]his man would be able to carry out part-time work operating a Mini Coach/School Bus or carry out any other form of work that was of a light or light moderate nature provided this did not involve constant or repetitive bending, lifting, carrying, working in awkward or confined spaces or any work that caused vibration or jarring to his upper limbs and upper body.”

[62] Further occupational therapist Stephen Hoey opined in his report:

“I concur with Dr Cook’s views that Mr Fisher should be able to carry out part time work operating a mini coach or school bus.  He finds at present that his symptoms are particularly aggravated by working 3 consecutive days.  In my view, he would be better suited to working alternate days of the week (eg Monday, Wednesday and Friday).”[42]

[63] The trial judge obviously did not regard the evidence of Doctors Cook and Winstanley to be far apart on this issue.  In his reasons his Honour observed of Mr Hoey’s evidence:

“[H]e merely confirmed the evidence of the orthopaedic surgeons that the plaintiff was not suited to heavy work, such as that required of a baggage handler and was better suited to employment such as that of a part-time bus driver.”[43]

Such a view was obviously open to his Honour on the evidence.  The assertion that his Honour ignored Dr Winstanley’s evidence on this very topic is obviously unsustainable.

[64] The appellant also submitted the trial judge did not have adequate regard to some aspects of the evidence of Gordon Radcliffe, a former baggage handler with the appellant who had taken a voluntary redundancy in 2013 and, like the respondent, had been in unskilled employment before his employment with Qantas.  The evidence of Mr Radcliffe, to which the trial judge supposedly had insufficient regard, was that upon taking his redundancy he completed an Ergon training course working for free for six months and obtained a job involving the inspection of power poles using binoculars and a shovel for which he expected he would earn about the same income as he earned with Qantas.

[65] It is implicit in the appellant’s submission that the circumstances of Mr Radcliffe and the respondent were reasonably comparable.  They were not.  Mr Radcliffe’s brother-in-law runs a business contracting to Ergon’s sub-contractor.  His brother in law took Mr Radcliffe “under his wing and trained” Mr Radcliffe until he had “worked on 1,000 poles” before seeking his accreditation.[44]  There was no evidence the respondent had such a contact in the industry or one prepared to train him or that the respondent would have been able to complete the training and complete the work involved.  Mr Radcliffe’s work involved using binoculars to look straight up at power lines and digging a hole around the bottom of the poles 45 centimetres deep before then striking the pole with a 30 ounce hammer.[45]  It was never suggested to the respondent that he could perform such a role.  Given the nature of his neck problem it is unlikely he could do so.  It is unsurprising the learned trial judge did not indicate he had regard to Mr Radcliffe’s evidence about his power pole job in assessing the respondent’s loss of earning capacity.

[66] The appellant went so far as to submit there was significance in the evidence of Mr Radcliffe that of his friends who had been baggage handlers and taken redundancies he knew one who was working as a “stop and go man” with Main Roads[46] and another who was “trying his hand as a personal trainer”.  Reliance was even placed by the appellant on Mr Radcliffe’s evidence that someone working at McDonalds can earn a similar wage to a baggage handler.[47]  There was no evidence of whether the former baggage handlers referred to were physically impaired.  Nor was there evidence of what, if any, employment could be secured working for McDonalds by a person with the respondent’s condition.  The tenuous worth of Mr Radcliffe’s evidence about those matters to the assessment exercise required of the trial judge is self-evident.

[67] Various of the above and earlier arguments of the appellant relate in combination to grounds (b)(i), (ii), (iii) and (iv).  The absence of success of those arguments mean those grounds must fail.

(6)Error as to the period of future economic loss

[68] The appellant complains the learned trial judge supposedly intended to conclude the respondent’s cervical spine would have become symptomatic within five years of the date of the incident on 7 February 2011 yet in assessing future and economic loss his Honour allowed a period of five years from when the respondent ceased employment with the appellant on 28 May 2013.  The appellant submits in effect that this involved an erroneous allowance of more years than was contemplated by his Honour’s findings.  That complaint misinterprets his Honours reasons.

[69] The trial judge’s reasons considered at some length the evidence of Dr Cook and Dr Winstanley.  Dr Cook had opined the respondent would have been able to continue working as a baggage handler for between four and 10 years had it not been for the incident.  Dr Winstanley on the other hand opined but for the incident the respondent would have likely developed symptomatology within five years of the incident.  His Honour reasoned that had the respondent continued in his occupation as a baggage handler the degenerative spondylosis of his cervical spine would have become symptomatic within five years in any event.  He said:

“In accepting a figure at the lower end of the range postulated by Dr Cook and as postulated by Dr Winstanley I am of the view that Dr Cook did not sufficiently take into account the extent of the degenerative changes present in the plaintiff’s cervical spine in contending for a range extending to ten years before the degenerative changes became symptomatic.”[48]

[70] By reason of the respondent’s stoicism, demonstrated in him persisting in pain for over two years prior to ceasing employment with the appellant on 28 May 2013, his Honour obviously considered the respondent would likely have taken a similar approach when, if the incident had not occurred, his cervical spine would have become symptomatic five years later.  This is inherent in the following reasons of his Honour relating to future economic loss:

“I will allow a period of five years from when the plaintiff ceased employment with the defendant on 28 May 2013 before his symptomatology was such as to preclude him from further employment with the defendant in any event.  He was stoic enough to persevere with his employment with the defendant for two years following the incident and this is reflected in the approach I have adopted.”[49]

[71] His Honour was addressing future economic loss on the premise that the respondent would have worked for a period of five years beyond 28 May 2013, the date when he in fact ceased work with the appellant.  That is confirmed by the period adopted in the quantum calculations thereafter engaged in by his Honour.  This interpretation of his Honour’s reasoning, which the appellant’s counsel properly conceded in oral submissions was open, is the only logical interpretation open on a proper consideration of the whole of his Honour’s reasons.  No error has been demonstrated.

(7)Inadequate discount for contingencies of only 8.11%

[72] In assessing future economic loss the trial judge discounted the notional award of $163,245 by 8.11 per cent down to $150,000 “for contingencies given the fragile state of the plaintiff’s spine which exhibits extensive degenerative changes”.[50]

[73] The appellant submitted his Honour erred in arriving at such a low discount given the finding that the respondent’s spine was fragile.  This finding, it was said, warranted a greater, not lesser discount than what was asserted to be the conventional discount of 15 per cent.[51]

[74] Implicit in that submission is an assumption that but for the fragile state of the respondent’s spine the trial judge should have adopted a discount of 15 per cent because it is conventional to do so.  That assumption is incorrect.  A discount for contingencies of 15 per cent is often adopted at first instance but not uniformly so.[52]  Further the factual significance of adverse and favourable vicissitudes will inevitably vary from case to case.  The inevitably of that variation between cases and the court’s obligation to determine each case on its own facts militates against the adoption of a pre-determined figure as a starting point for deciding the extent of contingency discounting in every case.

[75] The appellant’s submission attaches particular emphasis to the significance of the fragility of the respondent’s spine.  That emphasis is misplaced.

[76] It will be recalled the pre-existing degenerative changes to the respondent’s spine had already caused the trial judge to significantly confine the period of future economic loss under consideration.  The conclusion of the trial judge was the respondent’s pre-existing degenerative changes would have become symptomatic in any event within only five years of the incident, despite the professional opinion of at least one expert suggesting that the period could range as high as 10 years.  Even after allowances for the proved stoicism of the respondent the practical effect of his Honour’s approach was the respondent was only granted an award for future economic loss for a period of four years beyond the trial.  The uncertainty associated with the respondent’s condition remained a relevant consideration when the trial judge in turn allowed for contingencies during that period, as his Honour’s reasons show.  However, its significance was tempered by the associated role it had already played in confining the period of future economic loss under consideration.

[77] Moreover, the fragile state of the respondent’s spine was not the only relevant consideration.  It is significant that the period of future economic loss under consideration was a relatively short period of time in the life of a human being.  The degree of discounting warranted by the notable adverse contingencies - death, sickness, accident, unemployment and industrial dispute[53] - was not as great as it would be were a longer period of future economic loss under assessment.  Further, there were relevant positive vicissitudes beyond the respondent’s stoic nature.  That included his long-term employment history with the appellant, his high level of pre-incident fitness and activity and the prospect of increased earning over time.

[78] Given all of those circumstances the contingency discount figure adopted by the trial judge was unremarkable and no error has been shown.  Appeal ground (b)(viii) must fail.

Conclusion and Order

[79] The appellant has not made out the errors complained of and has not made out any of the grounds of appeal.  The appeal should be dismissed.

[80] Costs should follow the event and be assessed on the standard basis. 

[81] I would order:

1. Appeal dismissed.

2. The appellant pay the respondent’s costs of the appeal on the standard basis.