Little v McCarthy & Anor [2014] QSC 274

Liability was admitted for the motor vehicle incident. The plaintiff claimed for soft tissue injuries to his lower back. The injury was relatively minor with Dr Pincus assessing 0% impairment and Dr Campbell 6% under the AMA guidelines.

McMeekin J allowed an ISV 6 and $9,000 in General Damages.

Unsurprisingly, the controversy was over future economic loss. The plaintiff claimed a loss of $1,000.00 per week for 31 years until the age of 60, discounted on the 5% tables = $834,000.00. The defendant responded with a $50,000 global allowance.

The plaintiff’s claim had a number of inconsistencies and imponderables. He had at the time worked for his father’s business and left its employ voluntarily. After a period of unemployment taken up another role wherein he worked upwards of 55 hours per week. The plaintiff made a number of simple errors in his new role, which he attributed to his injury and the defendant to simply being careless. The plaintiff left that employer and returned to his father’s business. His father created a purpose built role, which runs at a loss, but nevertheless he retains his son.

After the initial period of the injury the plaintiff did not seek medical treatment or medication. This included the period whilst employed and working long hours. There was very limited evidence of muscle spasms in his back. Nevertheless, McMeekin J formed the view the plaintiff was honest and the mechanism of the injury was consistent with the claims. His Honour discounted the plaintiff’s claims as to work on the mines, but accepted that at some time he may be required to leave his father’s employment. His Honour formed the view that a global approach was warranted. In the end, McMeekin J allowed $200,000.00 for future lost earning capacity or if it were to be arithmetically broken down $333.00 per week for 15 years and uplift for the remaining years.

McMeekin J:

The Dispute

[15] Mr Little seeks an enormous sum of money by way of damages – just over $1,000,000. The defendants contend that his proper assessment should be quite modest – a little over $60,000. The contest is principally over economic loss.

[16] The reason for that discrepancy in the submissions of the parties is that Mr Little’s case has none of the usual features one associates with a million dollar personal injuries’ claim.

[37] I am conscious that not too much weight can be given to demeanour. As Atkin LJ observed in Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana“) [1924] 20 LI L Rep 140 at 152 “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”.[19] But Mr Little seemed fundamentally honest. Any assessment of him is not helped in that he was neither sophisticated nor articulate.

[54] I think that the true picture is that Mr Little becomes sore doing some of the more difficult tasks, tasks that gets him into the wrong position for too long or where he fails to take care of how he positions himself. This is an occasional problem not a constant one. His performance at Southern Cross Group is instructive. He may need occasional medication or treatment but I doubt that he needs as much treatment as he is now having. No medical evidence is led to show that continual attendances on chiropractors or physiotherapists are beneficial to him.

Employability

[55] The principal issue fought was that of the effect of the injury on earning capacity.

[56] That involves the art of double prophesying – what would have happened uninjured and what will happen in his injured state.[24]

[57] The imprecision in a case like this is self evident. In reaching a view as to hypothetical future events, I am required to assess the degree of probability that the event might occur (or might have occurred) and adjust the award of damages to reflect the degree of probability: Malec v JC Hutton Pty Ltd.[25]

[58] I am satisfied that Mr Little does have some problems and that those problems are likely to be more acute the heavier the work that he does. Whether they would be of such significance as to prevent him doing the work as opposed to making it an uncomfortable proposition is another matter. He may have days where he is restricted or where he is not entirely comfortable. I think that Dr Pincus summed up the position best with this answer:

“If … he finds the – the work too painful to do, then it would be sensible for him to stop it, but I don’t think he’s doing himself any harm.”[26]

[59] In saying that I am quite conscious of the evidence from an experienced auto electrician, Mr Hinz, as to the range of duties of an auto electrician and of their physical difficulty.[27] But Mr Little, I am sure, did this full range of duties most of the time before leaving to go to Mackay, and did that full range of duties on very heavy equipment alone and unassisted with few breaks for three weeks with Southern Cross Group.

[60] I doubt that these restrictions would have any significant impact on Mr Little’s employability in a normal workshop. I accept the opinion of the occupational therapist Mr Zietak that Mr Little is physically capable of doing this work.

[61] I acknowledge the force of Mr Hoey’s opinion that a perception of future problems, whatever be the actuality, is sufficient to put off prospective employers.[28] I am conscious too of the evidence that Mr Hinz gave of his reluctance to employ someone with various restrictions[29] but I do not accept the premise he was asked to adopt in fact applies.

[62] The sinecure I mentioned may not last. But the fact that Mr Little is not working to full capacity at the moment does not mean that he is not capable of much more and indeed I am confident that Mr Little is quite capable of a full time role as an auto electrician in an ordinary workshop.

[63] I am persuaded that the more demanding role expected of him working on mine equipment is probably beyond him but not solely because of symptoms of pain in his back.

[64] The difficult question is the impact this injury has had on any ambition of doing the heavier work on mine sites and so earning the large incomes available there. There are several issues:

(a) Did Mr Little in fact have that ambition given that he had made no effort to obtain such a position over the years?

(b) If he had that ambition what was the likelihood of getting such a position?

(c) If he obtained such a position what was the prospect, irrespective of injury, of Mr Little maintaining that employment? That is, would Mr Little be motivated to persist with more demanding work?

(d) What difference would any accident caused restriction make to Mr Little’s expected earnings over the years? That is the crucial issue of whether the “diminution of … earning capacity is or may be productive of financial loss”[30]

Ambition

[65] There is no good reason not to accept that Mr Little had a dream of quitting his father’s company one day and seeking work in the mines. Most sons have no wish to spend their lives under their father and in his shadow.

[66] As well, given that the incomes available at the mines is in the order of double the income available elsewhere it would be strange if a young person with appropriate qualifications accustomed to living in a regional area did not try and get employment at the mines, at least to see if they were prepared to cope with the life. The plaintiff’s older brother had done so and while he had the different qualifications of a diesel fitter there is no reason to think that the motivations would be any different – if anything his older brother’s success would be a likely spur.

[67] It is true, as the defendants submit, that Mr Little had done nothing to advance that dream by the time of the subject accident and it was probably only the move by his partner that triggered the application to Southern Cross Group. There is nothing to show that without that move he would not have simply stayed on at Blackwater. But that did occur and it was the trigger to look more widely for employment opportunities and that would have been so assuming that the subject injuries had not occurred.

[68] Mr Little’s claim that the Southern Cross Group opened up access to potentially 60 mines in the Bowen Basin area[31] was not challenged. Getting employment there provides some considerable basis for accepting his claim of having an interest in pursuing such work.

[69] So I am content to accept that the plaintiff would have pursued what chances came up of getting employment at a mine site.

Prospects

[70] Against that ambition there is little in the way of concrete evidence that Mr Little would have succeeded in attaining his dream. He had taken the first step of getting a position in the field with Southern Cross Group. But that is not the same as a position at a mine.

[71] While establishment of the proposition that, uninjured, he would have obtained a position with a mine involves proof of a hypothetical proposition, and so there are always going to be difficulties in proof, there was no evidence lead of matters often proved in similar cases – such as the number of positions available for auto electricians whether at the time of trial or at any time before trial, the number of potential applicants for those positions and, apart from the father’s opinion of his competence (that he was the best auto electrical apprentice he had work for him),[32] or how the plaintiff was likely to measure up against the potential competition. The three basic mistakes in three weeks with the Southern Cross Group tended fairly strongly against his father’s assessment being a valid one.

[72] As well there was some evidence against the plaintiff achieving his ambition.

[73] The evidence was that the demand for auto electricians was a great deal less than for diesel fitters. The plaintiff said so.[33] Mr Hinz spoke of only one auto electrician being employed at the mine with which he was familiar.[34] The plaintiff spoke of how difficult it was to get jobs when he went to Mackay.[35] He meant with companies like the Southern Cross Group but there was no reason to think the highly sought after jobs with the mining companies would not have been even more difficult to obtain. Mr Little (Snr) employed only one auto electrician in his company out of 15 skilled trades people, those being mechanics or fitters.[36]

[74] It seems that auto electricians are in the nature of specialists called in to do tasks that are beyond the diesel fitters.[37] If there are only a few such positions at each mine then they are very likely to be highly sought after for the same reason the plaintiff was seeking that employment.

[75] One issue unaddressed by the evidence is the effect on the prospects of tradesmen gaining employment in the mining industry given the recent and significant downturn. Prices for our commodities have now plummeted and mines are closing. Mr Little (Snr) said it was the worst that he has experienced in 17 years in business.[38] What impact this is having on the demand for tradesmen was not explored. Presumably those who have jobs would be careful about giving them up in such an environment.

[76] The plaintiff’s approach was to point out that there was a steady leak of tradesmen to the mine sites over the years, including the plaintiff’s own brother. As I have said his brother was a diesel fitter. No one equated demand for diesel fitters with demand for auto electricians.

[77] Mr Little (Snr) gave evidence that he had lost several hundred tradesmen to the mines over the 17 years he had been in business, including the two auto electricians that preceded his employment of the plaintiff. But that evidence says nothing about the demand for auto electricians at mine sites in the time that the plaintiff has been interested and in the future. What evidence there was says that the experience of the several hundred was irrelevant. The plaintiff said: “In Blackwater, there’s – for my job, auto-electrical, there was just no jobs going. Over those last two years when I was sort of looking at getting out of Chrisway, there was no – there was just no auto-elecy work out there. All – all the work was taken, basically.”[39]

[78] I conclude that there was little guidance at all in the evidence to enable me to assess Mr Little’s realistic prospects of getting employment. There are obviously positions and they must become available from time to time, and there is competition for them, but little more can be said.

Persistence

[79] Also against the plaintiff was his actual performance with Southern Cross Group.

[80] His evidence suggested that the length of the hours, the lack of opportunity for breaks and the lack of assistance were all significant issues. While each of those can be said to have become manifest because of problems with painful symptoms it seemed evident that this was an entirely new experience for Mr Little and one that he did not enjoy.

[81] There was a deal of force in the defendant’s submission that the evidence of the quite significant errors – three of the same type in three weeks – says a great deal about Mr Little’s capacity to cope. It is at least surprising that an experienced tradesman would make even one of those errors let alone three. And it is quite evident that the plaintiff found the pace of work much greater than he had expected.

[82] Mr Crow of Queens Counsel who appeared with Ms Willey for the plaintiff argued that all this can be explained by an increase in symptoms of back pain. The plaintiff certainly endeavored to relate all his difficulties to symptoms of pain in the lower back.

[83] The difficulty with an uncritical acceptance of that submission is the absence of evidence of any seeking of treatment or of any observation from Mr Davison, the supervisor, of any apparent difficulty.

[84] While I accept the probability of there being an increase in symptoms in this period they could not have been so marked given these two points.

[85] The highest that I think the case can be reasonably put is that without the symptoms in his lower back the plaintiff probably would have persisted significantly longer and may have coped better but his abilities were being tested to a degree he had not previously experienced and it is an unknown factor as to how he would have coped if uninjured.

Impact on Earnings

[86] The issue here is how relevant it is that there is some level of restriction in Mr Little’s physical abilities.

[87] I note that Mr Little (Snr), who qualified as a diesel fitter, has a management role in his business and has had for the last ten years – he worked “on the tools” for about seven years before giving that away. He is now 54 years old. So, since his mid forties, Mr Little (Snr) has not needed to be a manual worker.

[88] There is some evidence that Mr Little had the necessary skills to manage a business. His father made him a leading hand in the family business when quite young and his father thought that he had performed well in that role. To a degree he then assisted in a supervisory role.

[89] The father’s history and Mr Little’s burgeoning supervisory skills suggests that at some point any physical restriction might well have become irrelevant to Mr Little’s earning capacity.

[90] As well Mr Little made plain that he did not see a future at a mine site for the whole of his life as the most likely one for him. His evidence was:

“Like, we wanted to earn a lot of money first, get comfortable, like, over a probably 10 year, 15 year period and then – and then eventually I wanted to start my own thing not run off what I’m doing at the moment which is I’m using my Dad’s company – all I’m doing is running another aspect of it, running another chain of it. I wanted to go out in the mines for at least 10/15 years, get up a good earning, then come back but start my own business, not under the Chrisway label …”[40]

[91] I am conscious that what a young man says he wants and what a young man does is not necessarily the same thing. And there are many imponderables. What amount of money one finds satisfactory, when that level might be achieved, how attractive other options are that might come up, and the timing of opportunities, are all relevant and are all unknowable. And, as Mr Little’s experience to date suggests, the demands and wishes of one’s partner in life can have a bearing on one’s employment opportunities.

[92] In summary it seems more likely than not that if uninjured over time Mr Little would have seen a managerial role as congenial and his physical abilities as largely irrelevant to his earning capacity. A whole working life “on the tools” was not in my view his most likely future.

Future Economic Loss

[115] The plaintiff claims $834,000 – a loss of $1,000 net per week over 31 years to age 60 discounted on the 5% tables.

[116] The defendants allowed $50,000 as a global assessment.

[117] The assumptions underlying the plaintiff’s claim are not made out. Those assumptions include that but for the injury the plaintiff would have sought and maintained employment in hard and demanding work, and at a mine site, to age 60.

[118] I agree with the defendants’ approach that a global assessment is necessary. However the difficulty for the defendants’ argument from that point is that once it is conceded that the plaintiff has some level of restriction because of his lower back problems then it is difficult, in the light of the evidence of the demanding nature of the work and the high wages potentially available, to restrict the damages as it is asserted they should be.

[119] Section 55 of the Act is relevant and provides:

When earnings can not be precisely calculated

(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

(4) The limitation mentioned in section 54(2) applies to an award of damages under this section.

[120] The limitation mentioned in ss 54(2) is not relevant here. I am appropriately satisfied as required by s 55(2).

[121] Much of my reasoning has already been set out. There are many imponderables. The economic conditions are extremely uncertain. There is no guarantee that the plaintiff would have ever obtained a job at a mine site. Even if he managed to do so there is the fact that Mr Little had not displayed a capacity to perform hard demanding work for any extended period. That does not mean that he did not have that capacity but it is unproven. On the other hand if he had obtained such employment and maintained it even for a modest period of years his loss would be significant.

[122] The plaintiff argued that his minimum loss was reflected by comparing his wage at present with his wage when at the Southern Cross Group – a difference of $333 net per week. But that again assumes two things that are not certain – continuity of employment with Southern Cross Group, or an equivalent employer, if uninjured and a willingness to do the demanding work required over an extended period.

[123] As well, as discussed earlier, I think that the probabilities are that the plaintiff would not have relied on his physical capacities for the whole of his working life. But he may have.

[124] Making the best estimation I can I allow the sum of $200,000 under this head of loss. To the extent that there is any arithmetic involved I observe that a loss of $333 over 15 years would result in an assessment of about $185,000 and, while there are discounting factors, in my judgment something more needs to be allowed for the chance of a loss over the 20 to 30 years thereafter, a chance which, in my estimation, outweighs the prospect that Mr Little may not have pursued a career in harder work.

David Cormack – Brisbane Barrister & Mediator

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