In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44

I refer to my earlier posting concerning the decision of Boddice J by way of facts and issues. The Court of Appeal dismissed the employer’s appeal (WorkCover Queensland) both in respect of liability and quantum (past and future economic loss).

Fraser JA delivered the leading judgment, with Muir JA and Chesterman JA concurring.

Liability

9.

The trial judge’s findings depended in part upon the assessment of the oral evidence, which his Honour had the advantage of seeing and hearing as the trial unfolded. The employer’s arguments do not justify this Court in disregarding those findings, particularly when it was not put to Ms Taylor that her evidence of the words used by Ms Penhaligon in complaining to Ms Henderson was incorrect, Ms Henderson was not called to rebut that evidence, the mat and chair were not tendered in evidence, there was no expert evidence to contradict Ms Taylor’s evidence of the propensity of her chair to move surprisingly rapidly over the mat, and there was no evidence to contradict Ms Penhaligon’s evidence that after the accident Ms Taylor’s chair was found off the mat and out of the cubicle.

 19.

This Court has held in many decisions that the failure of a trial court from which an appeal lies to give adequate reasons amounts to an error of law.4 What is adequate must depend upon the circumstances of the particular case, including the nature and significance of the issues in question. In a passage to which Muir JA referred in Drew v Makita (Australia) Pty Ltd,5 Meagher JA observed in Beale v Government Insurance Office of New South Wales6 that whilst the trial judge should set out findings as to how the judge came to accept one set of evidence over a conflicting set of significant evidence, “that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear”. In the present case, the reasons for the findings about the behaviour of the chair on the mat in Ms Taylor’s cubicle are sufficiently clear. The resolution of the conflicts in the evidence on that topic turned largely upon the trial judge’s assessment of the credibility and reliability of the witnesses since, as the trial judge remarked, the mat was not tendered in evidence and the employer did not call any expert evidence in relation to the friction between the mat and the chair. There was no other evidence that assisted in the resolution of those conflicts or the conflict as to whether Ms Taylor complained to Ms Burchardt. The trial judge did not overlook Ms Burchardt’s evidence. His Honour referred to that evidence but accepted the evidence given by Ms Taylor, finding that she was a credible and reliable witness and that her evidence was consistent and truthful.7 The clear inference is that the trial judge considered that Ms Taylor’s evidence was more reliable than that given by Ms Burchardt. Whilst it would have been preferable for that inference to be expressed in the reasons, the trial judge’s failure to do so did not in this case render the reasons inadequate. The trial judge’s clear findings in favour of Ms Taylor’s and Ms Penhaligon’s evidence sufficiently explained his Honour’s conclusions.

20.

As I have mentioned, the employer did not contend that the trial judge should have held that Ms Taylor was guilty of contributory negligence. The trial judge’s finding that the employer was liable should be affirmed.

 4. See, for example, Drew v Makita (Australia) Pty Ltd [2009] QCA 66; Littlejohn v Julia Creek Town and Country Club Inc [2010] QCA 361.

5. [2009] QCA 66 at [63].

6. (1997) 48 NSWLR 430 at 443-444, with reference to Selvanayagam v University of West Indies [1983] 1 WLR 585 at 588.

7. Taylor v Invitro Technologies Pty Ltd [2010] QSC 282 at [14], [18].  

Quantum

29.

The employer’s arguments do not justify this Court in interfering with the trial judge’s award. The unchallenged finding was that Ms Taylor’s ongoing disabilities limited her employability on the open market. The award was not precluded by the absence of evidence of specific employment that Ms Taylor might have obtained but for her injuries, although such evidence would have strengthened the claim. The arguments concerning Ms Taylor’s young children were relevant to the extent to which the diminution in her earning capacity was reflected in economic loss, but, on Ms Taylor’s evidence, it must also be borne in mind that when her children were even younger she had embarked on an apparently successful career with an employer who regarded her as a valuable employee. Her evidence about her attitude to her current employment concerned her changed situation after she had been injured. Furthermore, the argument that Ms Taylor’s husband’s transfer to Cairns was the sole cause of Ms Taylor’s resignation from Fujinon implicitly challenged the trial judge’s finding that the transfer was “a significant factor” in Ms Taylor’s decision to resign from that employment. There is no ground for setting aside that finding. It reflected Ms Taylor’s evidence that she and her husband made the decision to move to Cairns together in light of the circumstances “that we’d been through” and “to just have a fresh start”, which encompassed her evidence of the serious difficulties she had in coping with the work at Fujinon.

 30.

Contrary to another of the employer’s arguments, the lost income assessed by the trial judge does not represent a weekly loss of $640. The loss of income of $55,000 included the WorkCover payments which Ms Taylor was paid after the accident rendered her unfit for work and which she was obliged to refund. Accordingly, the trial judge’s assessment represented lost income for the 86 week period of $31,489 ($55,000 – $23,511). That equated to a weekly net loss of about $366.10 That was less than the maximum possible weekly net loss of $400 and it may be contrasted with the weekly net income of more than $1,000 which, on the evidence, Ms Taylor might have earned had she remained with the employer in the same period. It is apparent that the trial judge’s estimate of Ms Taylor’s past loss of income involved very substantial discounting of the notional income she might have earned. The award was quite moderate and it has not been demonstrated that there was any error such as would justify this Court’s interference.

 31.

The employer also contended that there was no basis for the assessment of the future economic loss at no more than $400 per week or that the assessment was excessive, particularly because there was no evidence that Ms Taylor could not work as a medical representative and she had managed to do so during her employment at Fujinon. In my respectful opinion, there is also no ground for interfering with this award. Dr Wallace, whose views as to the restrictions on Ms Taylor’s future employability the trial judge accepted, considered that Ms Taylor’s employability on the open labour market had been significantly adversely affected. Dr Wallace’s opinion was that she could not work in her previous occupation as a hairdresser, and, as I have mentioned, the trial judge also accepted Ms Taylor’s evidence about the difficulties she had in continuing her work with the employer and Fujinon. The evidence suggested that were Ms Taylor still employed by the employer she might currently be earning about $1,400 net per week. It is again apparent that the trial judge very substantially discounted Ms Taylor’s claim to take into account the matters upon which the employer relied. The trial judge’s global assessment was by no means extravagant. I see no ground which would justify this Court in setting it aside.

 10. If the employer’s initial contention that the WorkCover benefits amounted to $30,638.56 were accepted, the net weekly loss over this period would have amounted to approximately $283.  

  Brisbane Barrister – David Cormack

 

 

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