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Smith's Snackfood Company Limited v Haden[2013] QDC 260

Smith's Snackfood Company Limited v Haden[2013] QDC 260

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith’s Snackfood Company Limited v Haden [2013] QDC 260

PARTIES:

SMITH’S SNACKFOOD COMPANY LIMITED (ACN 057 976 940)

(Appellant)

v

Nicole Leanne Haden

(Respondent)

FILE NO/S:

DIS 769/13

DIVISION:

Civil Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 October, 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

27th September, 2013

JUDGE:

Ryrie DCJ

ORDER:

  1. Appeal allowed.
  2. Set aside the order made at 1st instance that the defendant pay the plaintiff $61,601.06.
  3. Instead order that judgment be given for the plaintiff in the sum of $31,501.59.
  4. The parties to provide written submissions as to costs 28 days from the date of publication of this judgment unless the parties otherwise agree.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – Where the Learned Magistrate failed to reduce the sum awarded as required in respect to the Workcover refund 

APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – PERSONAL INJURY – Whether the Learned Magistrate failed to comply with the requirements of ss 60 and 61 of the Civil Proceedings Act 2011 in calculating the figure awarded for Future Economic Loss – Whether the award for future economic loss in the sum of $31,500 is manifestly excessive 

APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – PERSONAL INJURY – Whether the award for general damages in the sum of $12,950 is erroneous at law or manifestly excessive

Civil Proceedings Act 2011 (Qld) ss 60 and 61.

Supreme Court Act 1995 (Qld) s 16.

Workers Compensation and Rehabilitation Act 2003 (Qld) ss 306J and 306L.

Item 118 of Section 9 of the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld).

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 – applied

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 - applied

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 – applied

Mbuzi v Torcetti [2008] QCA 231- applied

Medlin  v State Government Insurance Commission (1995) 182 CLR 1 – applied

Phillips v MCG Group Pty Ltd [2013] QCA 83 - applied

RACQ Insurance Limited v Brennan [2013] QCA 150 – applied

Todorovic v Waller (1981) 150 CLR 402 - applied

COUNSEL:

W.D.P Campbell (For the Defendant Appellant)

R.J Lynch (For the Plaintiff Respondent)

SOLICITORS:

BT Lawyers (For the Defendant Appellant)

Sciacca’s Lawyers (For the Plaintiff Respondent)

Background

  1. [2]
    This is an appeal against part of a decision of a magistrate, who ordered that the defendant (‘appellant’) pay the plaintiff (‘respondent’) the sum of $61,601.06 for damages for personal injury. The plaintiff, a packaging machine operator, suffered an injury to her thumb at work on 7th November 2010 while attempting to cut away an obstruction using a knife after a packing machine had jammed. Liability was not in issue at trial.
  1. [3]
    The Notice of Appeal filed 6th May 2013 sets out three (3) grounds.
  1. [4]
    Ground 1 is not in dispute. It is accepted that the magistrate failed to reduce the sum awarded as required in respect to the WorkCover refund. The other grounds remain the subject of this appeal. Both parties have provided helpful written submissions which have been marked exhibits (appellant ex 1) and (respondent ex 2).
  1. [5]
    The Appeal before this Court is by way of rehearing on the record. That means it is necessary for the court to give due regard not only to the reasons for the decision of the magistrate, bearing in mind the clear advantage that he had in seeing and hearing the witnesses who gave evidence before him, but also requires that this court review the evidence, to weigh the conflicting evidence and to draw its’ own conclusions based on the original evidence and on any new evidence allowed by leave Mbuzi v Torcetti [2008] QCA 231.

Ground 2 (Damages awarded for Future Loss in the sum of $31,500.00)

  1. [6]
    Two bases are relied upon by the appellant in respect of this ground.
  1. [7]
    The first of those is that the magistrate failed to comply with the requirements of the Civil Proceedings Act 2011, Part 9, ss. 60 and 61, which applied to most (not all) claims for damages for personal injury from 1st September 2012.  The second is that the award which was assessed for future loss by the magistrate was, in any event, manifestly excessive.

‘ss 60 and 61 Civil Proceedings Act 2011 (Qld)’

  1. [8]
    The appellant submits the magistrate failed to comply with s. 60 and 61 of the Act when calculating the damages which he awarded for future loss. The appellant referred to the magistrate’s reasons set out at paragraph [26] and submitted that a fair reading of that paragraph supports a conclusion that the magistrate did not comply with s. 61 as required (even if it was assumed that the figure of $1500 per year was a net amount as required under s. 60). The appellant submits that it is clear from the calculation which the magistrate made, that he failed to apply the 5% discount tables for the future period allowed (28 years until retirement age) using the relevant multiplier of 797. The appellant submits that s. 61 applies to an award of damages for deprivation or impairment of earning capacity (such as in this case) regardless of whether the lump sum for future loss is assessed as a global amount or as a result of a precise arithmetical calculation.
  1. [9]
    The respondent on the other hand submits that a fair reading of the magistrate’s decision, having regard to paragraphs [23] to [26], supports a conclusion that the magistrate was simply setting out the way in which he had finally arrived at the global sum of $31,500 for future loss. The respondent argued that what in effect the magistrate had done was to set out his calculations in order to simply demonstrate how he had arrived at his penultimate figure globally, having regard to the principles of chance set out in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
  1. [10]
    In support of this submission, the respondent referred to the magistrate’s particular attention to s. 306J Workers Compensation and Rehabilitation Act 2003 (Qld), which specifically deals with the situation where a court, wanting to make a global award for a loss of earning capacity, is unable to make a precise calculation by reference to a defined weekly loss. The respondent submitted that the magistrate had made it clear several times that he had considered it appropriate to make a global assessment relating to future loss because he was unable to calculate it precisely. The respondent submitted that the magistrate was therefore entitled to award a global sum in order to reflect the disadvantage which the plaintiff would have on the open labour market in the future, having regard to the fact that she would be likely to be confined to occupations requiring manual labour of one sort or another.
  1. [11]
    The respondent submitted that it was therefore not necessary for the magistrate to apply the 5% discount tables as asserted by the appellant as the magistrate was only ever awarding damages assessed on a global basis because he was unable to make a precise calculation. In other words, the respondent’s ultimate submission was that s. 61 only applied in circumstances when calculating an incremental loss with precision, which was not the case here.
  1. [12]
    After careful consideration, I am unable to accept the respondent’s submission on this issue. While it is true that the magistrate had indicated in his reasons that in respect of any future loss, an assessment on a global basis was appropriate, he nevertheless still attempted to calculate that sum with some precision, as evidenced by his reference to a specific incremental loss per year over the course of 28 years ($1500 per annum x 28 yrs = $42000 less 25% for contingencies = $31,500 which was his mathematical approach). In adopting that methodology, it appears more likely than not that he was indeed attempting to calculate with reference to a defined weekly loss (or in this case expressed as a loss per year). As such, in those circumstances it was incumbent upon him to have regard to the 5% discount tables as required. The respondent submitted that his calculations ought to be read liberally, in that what the magistrate had in fact intended to say was that the $1500 per year figure which he had used was representative of its’ present day value. Regrettably, I am unable to accept that submission. It is simply not clear or even implicit in his reasons that when he choose to use the $1,500 per year amount in his calculations, that this was, as it was submitted, an already ‘discounted figure’.
  1. [13]
    Arguably the discount for contingencies at 25% at first blush which the magistrate applied to those calculations certainly appears to be high, having regard to the fact that he had already determined that any neck injury previously suffered by the plaintiff prior to the subject incident had resolved sufficiently enough not to impinge upon her ability to perform her work at her current employment (see paragraph [10] of his reasons). Unfortunately the magistrate did not set out his reasons for allowing 25% for contingencies rather than the usual starting point of 12- 15% for general vicissitudes of life. As such, this figure is of little assistance now.
  1. [14]
    It follows that I believe that the magistrate has fallen into error for the reasons stated. Accordingly, the question remains regarding the appropriateness or otherwise of the assessment of damages which he made as to future economic loss.
  1. [15]
    It would be trite to say that a primary focus which has arisen on the hearing of this appeal is whether s. 61 Civil Proceedings Act 2001 applies to an assessment of damages as a lump sum for future loss (deprivation or impairment of earning capacity) which cannot be precisely calculated by reference to a defined weekly loss. There is very little case authority regarding the application of s. 61 regarding any assessment for damages for ‘deprivation or impairment of earning capacity’ since the insertion of Part 9 into the Civil Proceedings Act 2011 (effective 1st September 2012). Most of the case authorities which I have been referred to by the respondent in its outline however do provide examples of where global awards for future loss were made, at a time when s 16 of the Supreme Court Act 1995 (Qld) applied. That section was nearly identical in its’ terms to that of s. 61 with the exception of the insertion of subsection 2 of s. 61.
  1. [16]
    The appellant urges upon this court to accept its submission which was that s. 61 should be read as to apply to all lump sum awards of damages (relating to deprivation or impairment of earning capacity), whether assessed globally or by precise mathematical calculation. I am unable to accept that submission. The case authorities which I have been referred show that global awards for future loss have commonly been made by the court without any reference to s. 16 of the Supreme Court Act 1995 particularly in circumstances where a precise calculation could not be made by that court by reference to a defined weekly loss. This is particularly so in circumstances where the award has been made having regard to the principles of Malec v Hutton (see Allianz Australia Insurance Limited v McCarthy [2012] QCA 312). Accordingly, I am helpfully assisted by the Court of Appeal in McCarthy and using it as guidance, consider it appropriate that where a claim for future loss is being made, then any assessment of damages in respect of it which cannot be precisely calculated by reference to a defined weekly loss, may be globally assessed. In order words, s. 61 does not apply in those circumstances. Sections 306J, L of the Workers Compensation and Rehabilitation Act also in my mind support such a conclusion.

‘Manifestly Excessive’

  1. [17]
    Having determined that an award for damages for future loss relating to any deprivation or impairment of earning capacity may be assessed globally, I need to now consider whether or not the award of $31,500 which was assessed by the magistrate was manifestly excessive in all the circumstances. It is important to remember when doing so however, the helpful observations made by the Chief Justice in RACQ Insurance Limited v Brennan [2013] QCA 150 at paragraph [25] which was in essence, that an appeal court should taken particular care when considering whether to reverse a trial judge on a question of the amount of damages.
  1. [18]
    The appellant’s primary submission on this issue and again on appeal is that no award for damages for future loss ought to have been made. In this regard, the respondent says that the magistrate’s assessment of $31,500 was manifestly excessive having regard to the weight of the evidence.
  1. [19]
    The appellant submits that the magistrate fell into error when he failed to take into account and indeed made no mention of certain uncontested evidence. In short, that included the plaintiff’s return to full time work since about 7th February 2011, that she had continued with her full time pre injury duties without physical restriction, that she had not missed any time from work, had worked substantial overtime, did not need any medical treatment or taken medication for her injury and she had neither sought or received any special treatment at work.
  1. [20]
    The appellant also submits that the magistrate failed to take into account the unchallenged opinions of Drs Hadwell and Robinson which were respectively that the plaintiff’s earning capacity had in no respect been impaired prior to her chosen age of retirement and that the evidence of Dr Robinson was that her hand had made a good recovery which did not require ongoing treatment and the fact that she had in any event, only suffered minimal permanent impairment of her non dominant hand which was of no relevance to any assessment of damages for future loss of earnings as was required by s. 306J.
  1. [21]
    The appellant further submitted that the magistrate also gave undue weight to the evidence that the plaintiff obtained occasional assistance from co workers in the course of her work duties, when the provision of such assistance was a normal and expected incident of her employment in any event.
  1. [22]
    He also says that the magistrate gave undue weight to the recent changes at the appellant’s packaging department where automation had been introduced, but had failed to consider the evidence available which was that there was no evidence that such automation would have any effect upon the duties of the packaging machine operators in the area where the plaintiff actually worked.
  1. [23]
    The respondent on the other hand submits that the assessment made was not manifestly excessive in all the circumstances. He submitted that it was apparent from the pleadings and the case ran at trial that the plaintiff’s claim for future loss was not because she was unable to perform her current role, but was related to the uncertainty that her injury generated for the balance of her working future (28 years before retirement age). The respondent submitted that the magistrate properly identified the risks in the case, namely that there was a small risk, albeit not so low as to be speculative, that the plaintiff may suffer economic loss in the future because of her injury, in accordance with the Malec v Hutton principles.
  1. [24]
    The respondent submitted that the magistrate’s assumptions which he set out in his reasons in accordance with s. 306J Workers Compensation and Rehabilitation Act were all supported by the evidence (see ex 2 paragraph 10). The respondent submits that in all the circumstances of this case, the magistrate was right in awarding damages for future loss to the plaintiff in the order of $31,500.
  1. [25]
    It is immediately apparent from Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 at paragraph [53] that any (future) economic loss must be determined by reference to the facts of the particular case at hand and not through simple regard to other decisions in which courts have made awards of damages in broadly similar circumstances. Accordingly, it follows that an examination of the facts of the case at hand is necessary when determining whether the award actually assessed was appropriate or otherwise.
  1. [26]
    It is apparent from his reasons that the magistrate considered that the plaintiff’s earning capacity had been diminished as a result of her injury in that she now has a diminished range of motion in her left thumb and reduced grip strength between her left thumb and forefinger (paragraph [21]) which had impacted upon her ability to perform manual tasks to the same degree as before the subject injury (paragraph [25]).
  1. [27]
    It is also apparent after a careful reading of the magistrate’s reasons for decision that the primary reason why he awarded damages under this head of damages was because he was satisfied that her injury would affect her future employability as she was more than likely limited to occupations in which she would be required to perform largely manual tasks (see paragraphs [20], [24] and [25]). In other words, the magistrate was satisfied on the balance of probabilities that the plaintiff’s injury had diminished her earning capacity and that it might be productive of financial loss in the future: Medlin  v State Government Insurance Commission (1995) 182 CLR 1; Todorovic v Waller (1981) 150 CLR 402.
  1. [28]
    As observed recently in Phillips v MCG Group Pty Ltd [2013] QCA 83, under the heading ‘Conclusions about the assessment of damages’, a summary of the relevant considerations were set out regarding the assessment of damages for personal injuries in an action for negligence and in particular regarding any assessment for future loss. Bearing those considerations in mind, I shall now address the case at hand.
  1. [29]
    Dealing first with the appellant’s contentions, I am satisfied that even though the magistrate did not specifically deal with the submissions made to him by the defendant (which in essence are the same here) regarding the plaintiff’s return to work full time, having no time off work, the substantial overtime she has since worked, and the lack of medical treatment or medication since her return to full time duties, it is implicit in his reasons that he was aware of those facts. In his reasons for decision, he noted that she had returned to full time duties in her pre accident role but had done so with restriction. In that regard, he noted that she now required assistance from others in the workplace, a fact confirmed by a co worker who gave evidence, when lifting heavy items and that she also had difficulty in manipulating some items at work. He was also aware of the overtime which she had subsequently worked as he specifically noted in respect of past economic loss that her claim in that regard was only confined to her lost opportunity to perform overtime hours from the date of accident up to her return to full time duties. In any event, the magistrate knew the nature of the claim for future economic loss which was being made, that it was not in respect of her inability to perform her current role, but rather in respect of any impact her injury would have on her earning capacity on the open labour market which might be productive of financial loss in the future.
  1. [30]
    While it is implicit in Dr Hadwell’s report (ex 6) that he considered the plaintiff’s earning capacity had in no respect been impaired prior to her chosen age of retirement, that was not the only evidence available on this issue. Dr Robinson was of the view that even though the plaintiff had made a good recovery needing no further ongoing medical treatment, Dr Robinson nevertheless still assessed her as having suffered a 2% total impairment of the whole person which the magistrate was entitled to accept. Dr Robinson is an Upper Limb Specialist whereas Dr Hadwell is not. Dr Robinson also conducted a physical examination that involved measuring her range of motion on both her injured and uninjured sides whereas Dr Hadwell did not. (T1-55). The submission made on this point by the appellant also overlooks ex 3. Dr Robinson clarified, as evidenced in that document, that the plaintiff’s capacity to continue with her current role was dependent upon her ability to delegate certain heavier tasks. Dr Robinson confirmed that should that change, then her ability to fulfil all the requirements of her employment including the heavier aspects then becomes questionable. That fact was also emphasised in Dr Robinson’s first report (ex 2, page 5: Effect on Occupational Activities) in which he confirmed that he expected that the plaintiff could continue working in her current capacity until her elected age of retirement but in the context of her continuing to delegate some of her work activities to co-workers. Dr Robinson also confirmed in ex 3 that if the plaintiff was put back onto the open labour market for whatever reason, then because she struggled at home with certain domestic activities (a fact she confirmed was still the case during her own evidence at trial), then she would be precluded from performing such duties associated with domestic work in a commercial setting in the role of, by way of example, of that of a kitchen hand or a commercial cleaner.
  1. [31]
    The appellant submits that the magistrate nevertheless still gave too much weight to the occasional assistance which the plaintiff now received from her co workers as it related to certain heavy lifting. It was submitted that this was a normal and expected incident of her employment. While the evidence was that the male co workers were more than happy to help female co workers with heavy lifting, the plaintiff’s evidence on this issue was that it was still required of her in her role as a Packing Machine Operator that she would lift ‘formers’. Some lifts she accepted were only ever 2 person lifts however the general thrust of her evidence was that prior to her injury, she was able to lift all the other formers, not requiring a 2 person lift, on her own (which significantly required her to use two hands), without having to ask for help.
  1. [32]
    Mr Muir, a co worker, also confirmed that the plaintiff needed assistance when lifting some of the formers and that he had only been providing her with that assistance since her injury (T1-60). Ms Salm also confirmed that there was a ‘culture’ or a system of work within the workplace that workers were encouraged to ask for help if they felt they needed it regarding any lifting that appeared to be heavier than what a worker could cope with (T1-66). The plaintiff also described having difficulty with ‘flavour distribution’ at work. She described that she was now having trouble holding it at the top of the bag while it emptied due to lack of strength related to her injury (T1-49).
  1. [33]
    In light of that evidence and the evidence of Dr Robinson to which I have just referred, the magistrate did not in my view place undue weight on the fact that the plaintiff now needs assistance with certain heavy lifting at her current workplace. Nor did he fall into error when he found that her injury had impacted upon her ability to use her left hand to the same degree as before the accident when performing certain manual tasks. He was entitled to do so.
  1. [34]
    The appellant also submitted the magistrate placed undue weight on the process of automation that was taking place in the workplace insofar as the plaintiff’s employment until retirement age could not be guaranteed. The evidence at hearing on this point, while not sufficiently clear to be decisive, was that because automation was taking place the plaintiff believed that it would result in less packing machine operators being required on her line. (T1-49). Ms Salm however didn’t think that having a further automated machine (which packs packets into a box) on the line where the plaintiff currently worked would affect her role as a packing machine operator per se. The plaintiff on the other hand believed that because automated machines were being introduced, that would mean less packers and possibly less packing machine operators as well. Regardless, it is trite to say that no employee’s employment can be necessarily guaranteed until retirement these days, a fact attested to by Ms Salm, under objection (T1-69).
  1. [35]
    Accordingly, it was open on the evidence to find that there was a real rather than remote chance that the plaintiff may be exposed at some point in the future during her working life to the open labour market. It also follows that I am satisfied on the balance of probabilities that the plaintiff’s earning capacity has been diminished because of the injury to her left thumb. Dr Robinson’s reports support such a conclusion. While it is true that she has continued to work full time since February 2011 and has needed no medical intervention or medication since that time, that fact alone is not determinative when considering any diminution of her earning capacity and whether it may be productive of any future economic loss if she lost her current employment. The evidence available shows that while she has continued to maintain full time employment since February 2011 (which has included working overtime and not taking any time off) as a packing machine operator with her current employer, she has nevertheless only continued to do so because she has been receiving slightly more assistance from co workers regarding certain aspects of her work, namely heavy lifting. Dr Robinson also noted this fact in his report.

Having regard to the evidence available, it is accepted that the plaintiff has suffered a diminution of her earning capacity as a result of her injury. Nevertheless, it must still be shown that it may be productive of financial loss before any award can be made; Medlin v State of Qld (1995) 182 CLR 1. In this regard, I do not respectfully consider that the magistrate gave sufficient weight to the following important matters.

  1. [36]
    It is clear from his reasons for decision that the magistrate considered that the plaintiff’s loss of earning capacity as a result of her injury may be productive of financial loss in the future because he found that she would more likely than not going to be confined to occupations involving manual labour. Other than a passing reference to the fact that the plaintiff had worked in retail in the past, the magistrate did not consider at all whether the plaintiff might well be able to obtain alternative sedentary work or other work not requiring any heavy lifting to the degree expected of her in her current employment on the open labour market, should her current circumstances change. These facts in my mind are significant in light of the plaintiff’s past working history and her current demonstrated ability to carry out her job since her return to full time duties. It is also significant in light of the medical evidence from Dr Robinson which is that she only has a mild reduction in range of motion related to her injured thumb which included some, but not significant, reduction in pinch strength.(T1-54).
  1. [37]
    The plaintiff’s case at trial (and in its’ pleadings) was that because of her injury and consequent loss of earning capacity, together with her lack of education, training and experience in alternative sedentary occupations, then she would be at a distinct disadvantage on the open labour market. (T1-22). That fact was clearly a significant factor in the magistrate’s reasoning in awarding damages for future economic loss based upon that premise.
  1. [38]
    However, in my mind, further regard ought to have been given by the magistrate regarding the employment opportunities which the plaintiff may well have available to her if she was ever required to change her current employment and be placed back on the open labour market.
  1. [39]
    While it is accepted that the plaintiff has over the course of her working life carried out manual labour jobs, she had also worked in retail in a managerial role for approximately seven years. She also gave evidence that she had also worked at Franklins as a front end controller which is not strictly only manual work. She had also worked in the pay office at Franklins and had only left that employment to have her first child. She gave evidence that she had also done some casual office work between the birth of her other two children and before she had got her employment with Rockmans. (T1-10). That evidence shows, in my mind, that she will not necessarily be strictly confined to only occupations involving largely manual tasks if she were ever placed back onto the open labour market, as the magistrate found. The plaintiff also gave evidence that it was by her own choice that she had chosen to work in manual labour work, due in part because of better hours (to suit her young growing family’s activities) and in part, due to the better money which she could earn (presumably because of the overtime worked) with her current employment (T1-58). However, there is a real possibility that if she were placed back on the open labour market, that retail work, as a result of the introduction of extended trading hours, may well be an alternative viable work option also available to her.
  1. [40]
    While it is accepted that the medical evidence shows that while the plaintiff has suffered a diminution of earning capacity because of her injury, Dr Robinson’s evidence must nevertheless, in my mind, be carefully considered in light of the assumptions which he has made. In ex 2, it is clear that Dr Robinson considered that because the plaintiff had left school at age 15, then typically women of her age with limited education often found themselves performing domestic work in a commercial setting (such as cleaners or kitchen hands or the like). Not surprisingly, he was of the opinion that the plaintiff would be in those circumstances, disadvantaged on the open labour market. He was also of that same view if presumably she was also required to lift heavy weights at any new workplace, regardless of the job she was doing. Nevertheless, the medical evidence available shows that any loss of earning capacity as a result of her injury, has been at best, only modest. That is because she has continued to work in a manually labour intensive job since her return to full time duties which even on her own evidence, now only requires her to ask for assistance with respect to some heavy lifting but not in respect of all lifting tasks. Indeed, her evidence was that she is able to do most tasks associated with her position herself with the exception of some heavy lifting of ‘formers’ and experiencing some difficulty when having to hold the flavour distribution bags into position while they emptied. Otherwise, she made no other significant complaints regarding her ability to perform her current role at work. As such, she may well be equipped to undertake other manually orientated work, albeit with her very limited restrictions, should she find herself back on the open labour market in the future.
  1. [41]
    There was also the continuing symptoms which the plaintiff reported in his evidence regarding her previously (unrelated) neck and shoulder injury. In this regard, the magistrate found that the plaintiff’s neck had resolved sufficiently to the extent that it no longer impinged upon her ability to perform her work at her current employment. Clearly the fact that she has been able to perform full time employment notwithstanding her neck injury is significant. However, the plaintiff did not just complain, as the magistrate found, of only suffering from some discomfort when she turns her neck in traffic. A careful reading of the whole of her evidence shows that during the course of her evidence she also complained of other ongoing problems with her neck. In addition to the problem with turning her neck to check for traffic, she stated she continued to get niggles with it and admitted that she continued to get massages which she described as being related to her shoulder. (T1-11). She also admitted under cross examination that she was still getting neck pain but just not as severe as when she had reported that to Dr Campbell when she saw him. (T1-30). She also referred to her neck in the context of having ongoing problems off and on (T1-41 line 10).
  1. [42]
    Each of the matters to which I have just referred are all relevant considerations when determining whether any loss of earning capacity as a result of an injury suffered may be productive of financial loss in the future. Respectfully, I do not consider that the magistrate gave sufficient regard to these matters when making his assessment of damages for future loss.
  1. [43]
    Accordingly, having determined that the magistrate failed to give sufficient regard to these relevant matters, it follows that any assessment made ought to be reviewed to take into account those factors. The initial starting point by the magistrate in his assessment was $42,000.00 which was subsequently discounted by 25% for (unknown) contingencies.
  1. [44]
    In accordance with s.306J of Workers Compensation and Rehabilitation Act 2003, relating to any assessment of damages for loss of earnings that cannot be precisely calculated by reference to a defined weekly loss, the court is required to set out its’ assumptions and the methodology used to arrive at any award. That shall now follow.
  1. [45]
    The plaintiff has a further 28 years of working life left until a presumed retirement age of 67. She has worked in a variety of employment roles primarily in retail and manual labour in the past. She was working at the time of her injury and remains working full time as a Packaging Machine Operator with the same employer.
  1. [46]
    As a result of her injury to her thumb, she now requires some assistance in respect to some aspects of her work, such as the lifting of certain heavy formers. She has continued to also experience some difficulty when holding flavour distribution bags as a result of the injury. As such, her ability to carry out all of her duties post accident has not been the same as it was before the accident.
  1. [47]
    The impact of her injury upon her ability to carry out all of her full time duties in manual labour work however has nevertheless been, at best, modest. This is evidenced by her ability to continue to carry out most of her duties associated with her position without difficulty including working overtime and not having any time off related to her thumb. It also takes into account that she requires no further medical intervention in respect of it. She is also at no higher risk of osteoarthritis or other degenerative changes affecting her thumb. (ex 2 p 6).
  1. [48]
    There is a real chance rather than a remote one nevertheless that should she lose her current employment for whatever reason, she is likely, as a result of her injury, to be disadvantaged on the open labour market. Such a scenario includes her probably not being able to take up certain employment opportunities involving certain manual labour type jobs that required heavy lifting or of a type described by Dr Robinson.
  1. [49]
    In assessing damages for future economic loss, a court will generally apply the principles in Malec v JC Hutton, where the High Court stated that questions as to the future or hypothetical effect of physical injury would be evaluated by the court. Where proof is necessarily unattainable, the court should assess the degree of probability that an event might occur, and adjust its award of damages to reflect the degree of probability, leading to an increase in or decrease of the amount of the damages otherwise to be awarded.[1]
  1. [50]
    Having regard to the employment opportunities that may well be available to the plaintiff should she be placed back on the open labour market, which includes retail work of which she does have the necessary training and experience (as evidenced by her work history), I am nevertheless still persuaded on the balance of probabilities, that there is a real chance, while low but not so insignificant to a point that it ought to be disregarded, that in all probability, her loss of earning capacity as a result of her injury may be productive of financial loss, especially if she is unable to obtain other suitable employment immediately if placed back onto the open labour market. I find that in that scenario, if she were placed back onto the open labour market at some time in the future and the only employment opportunities available to her at that time were occupations involving manual tasks requiring heavy lifting or of the particular type described by Dr Robinson, then she would in those circumstances be unable to take up that employment and would likely suffer financial loss. I find that in that scenario, there is a real possibility that she may well suffer from short periods of unemployment whilst waiting for more suitable employment to become available to her. There is also a real chance however that other suitable employment may also be available to her if she were to return to the open labour market. In that scenario, that may include her returning to the retail industry or even undertaking other manual work type jobs not of a type which involves heavy lifting which she currently is unable to manage without help or of a particular type referred to by Dr Robinson.
  1. [51]
    There is also a real possibility that at some point in the future during the course of her working life, that her unrelated neck/shoulder injury of which she continues to suffer symptoms may persist, if not increase, as the plaintiff ages which would in turn impact upon her ability to continue to remain working in manual labour jobs by choice until retirement age, certainly to the degree which she is currently working particularly having regard to the hours now worked (Document 1, Ex 6).
  1. [52]
    Nevertheless, there still remains a real possibility that her injury may cause her economic loss in the future, particularly if she becomes unemployed and is unable to take up certain positions involving heavy lifting or to which Dr Robinson referred, whilst she is waiting for more suitable employment. Accordingly, it is my view that only a modest award of damages for future economic loss should be made to take into account the matters to which I have just referred in line with the principles of Malec v JC Hutton. In making only a modest award it follows that I consider the award made at first instance was in all the circumstances, manifestly excessive. 
  1. [53]
    It is trite to say that it is impossible to mathematically calculate the precise amount of any such loss related to any short term period/s of unemployment which the plaintiff may endure during her working life while she is waiting for more suitable employment to become available to her. It is also trite to even attempt to quantify it in terms of percentages of likelihood when making any such allowance for future loss such as this.
  1. [54]
    Having regard to the principles of Malec, extrapolated above, I consider a modest global award which I intend to make adequately reflects the contingencies already discussed. These include the possibility that at some point during her working life her ability to carry out manual labour work of the kind which she had performed during her working life so far may well have been diminished in any event by the continuing symptoms which she has continued to experience related to her neck/shoulder region. These might well have become worse as she ages and in turn, this fact would have impacted upon her ability to work in her chosen field of work until retirement age in any event.
  1. [55]
    Accordingly, I award $15,000 for future economic loss. As this is not a precise calculation, I have not taken into account any specific amount of loss per week. In arriving at my assessment of damages for future loss, I have taken into account the usual discount for general vicissitudes of life. The assessment of damages has also been made on its present day value.

Ground 3 (General damages awarded in the sum of $12,950.00)

  1. [56]
    The appellant submits that the award given was erroneous in law or alternatively manifestly excessive in the circumstances.
  1. [57]
    On the first point, the appellant argues that the award made was erroneous in law because the magistrate failed to have due regard to sections 2, 8, 9 and 10 of Sch 8 to the provisions of Division 7 and particularly Item 118 of Sec 9 of the Workers’ Compensation and Rehabilitation Regulation 2003. In this regard the appellant refers to the examples of injuries listed provide in Item 118 and the general comment about the appropriate level of ISV in Division 7 regarding an injury which was not to the plaintiff’s dominant hand.
  1. [58]
    While it was accepted by both parties at 1st instance and again on this appeal that Item 118 was appropriate, the appellant nevertheless submitted that because the injury suffered by the plaintiff was to her left hand rather than to her right, together with the fact that she had not suffered ‘a hand injury causing whole person impairment for the injury of between 5% and 12%’ and the fact that it could not be said to have been involving  ‘moderately serious tendon damage’, then the award for general damages assessed ought to have been at the lower end of the scale allowed, namely ISV 6. On the second point, it was submitted, given those circumstances, that the award of damages assessed by the magistrate was manifestly excessive.
  1. [59]
    I cannot accept the submissions made by the appellant on this issue. That submission overlooks in my mind the following important matters.
  1. [60]
    The range of ISVs for a particular injury reflects the level of adverse impact of the injury on the injured worker. (s 2(2) Schedule 8). That includes any pain and suffering which the worker has already endured. The plaintiff in this case was required to endure micro surgery in order to fix her damaged tendon which has left her with a permanent impairment of 2% whole person (1% impairment related to the restricted range of motion of her thumb and 1% related to scarring). While it is accepted that any assessment related to impairment of the whole person is not the only consideration affecting the assessment of an ISV, it is nevertheless still an important one (s. 10 Sch 8).
  1. [61]
    Greater weight is also to be given to a medical assessment of a whole person impairment percentage based on the criteria provided for under AMA 5 (except for scarring or a mental disorder): s. 12 Schedule 8. Dr Robinson, Upper Limb Specialist had particular regard to the AMA 5 when assessing her impairment relating to the restricted range of motion of her thumb. Dr Hadwen did not. Dr Robinson also had separate regard to the question of further permanent impairment related to scarring. Dr Hadwen did not. The magistrate was therefore entitled to prefer the evidence of Dr Robinson given those circumstances.
  1. [62]
    The general comment referred to in Division 7 of Sch 9 that ‘a ISV at or near the top of the range will generally be appropriate if the injury is to the dominant hand’ is accepted as providing appropriate guidance, nor is it surprising. However, it does not follow in my mind that the award assessed here based on ISV 10 was manifestly excessive given the level of injury suffered by the plaintiff to her non dominant hand which has left her with a permanent impairment of the whole person and the fact that she still suffered intermittent activity related discomfort and pain.
  1. [63]
    Again, I am conscious of the helpful observations made by the Chief Justice in RACQ v Brennan [2013] QCA 150 at paragraph [25] with respect to the care which must be taken by an appeal court regarding any question of the amount of damages which have been awarded by a primary judge.
  1. [64]
    Accordingly, because of the reasons already stated, I am not satisfied that the magistrate’s assessment for general damages in all the circumstances could be described as a wholly erroneous estimate of the damage suffered given the factual basis that was reasonably open.

Orders

  1. Appeal allowed
  1. Set aside the order made at 1st instance that the defendant pay the plaintiff $61,601.06.
  1. Instead order that judgment be given for the plaintiff in the sum of $31,501.59, calculated as follows:
General Damages$12,950.00
Special damages$7,981.83
Past economic loss$5,343.15
Interest on past loss$103.20
Past loss of superannuation$480.88
Future economic loss$15,000.00
Future loss of superannuation$1,350.00
Fox v Wood$407.00
Total $43,616.06
Less Workcover refund$12,114.47
 $31,501.59
  1. The parties to provide written submissions as to costs 28 days from the date of publication of this judgment unless the parties otherwise agree

Footnotes

[1] Richard Douglas, Gerard Mullins and Simon Grant, Annotated Civil Liability Legislation – Queensland (LexisNexis Butterworths, Australia, 3rd edition, 2012) at page 432

Close

Editorial Notes

  • Published Case Name:

    Smith's Snackfood Company Limited v Haden

  • Shortened Case Name:

    Smith's Snackfood Company Limited v Haden

  • MNC:

    [2013] QDC 260

  • Court:

    QDC

  • Judge(s):

    Ryrie DCJ

  • Date:

    17 Nov 2013

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
2 citations
Jump To
Cite 1 - [2012] QCA 312
Cite 2 - [2012] QCA 312
Heywood v Commercial Electrical Pty Ltd [2013] QCA 270
2 citations
Jump To
Cite 1 - [2013] QCA 270
Cite 2 - [2013] QCA 270
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
2 citations
Jump To
Cite 1 - (1990) 169 CLR 638
Cite 2 - (1990) 169 CLR 638
Mbuzi v Torcetti [2008] QCA 231
2 citations
Jump To
Cite 1 - [2008] QCA 231
Cite 2 - [2008] QCA 231
Medlin v State Government Insurance Commission (1995) 182 CLR 1
3 citations
Jump To
Cite 1 - (1995) 182 CLR 1
Cite 2 - (1995) 182 CLR 1
Cite 3 - (1995) 182 CLR 1
Phillips v MCG Group Pty Ltd [2013] QCA 83
2 citations
Jump To
Cite 1 - [2013] QCA 83
Cite 2 - [2013] QCA 83
RACQ Insurance Limited v Brennan [2013] QCA 150
3 citations
Jump To
Cite 1 - [2013] QCA 150
Cite 2 - [2013] QCA 150
Cite 3 - [2013] QCA 150
Todorovic v Waller (1981) 150 CLR 402
2 citations
Jump To
Cite 1 - (1981) 150 CLR 402
Cite 2 - (1981) 150 CLR 402

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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