The relevant principles for assessing the plaintiff's future economic loss
68Where a plaintiff calls incomplete evidence of future economic loss and only a low award is made, a plaintiff cannot generally complain: State of NSW v Moss (2000) 54 NSWLR 536 at [69].
69However, the lack of such evidence is not an uncommon problem. Heydon JA went on to set out a series of principles relevant to cases where there are evidentiary difficulties of this kind. These included issues relevant for a jury assessment of damages (which was the case in State of NSW v Moss), but also included the warning that difficulty in assessing the amount does not mean that the plaintiff is only entitled to a nominal sum (at [71] - [72]). An increase in earnings after the injury, a not uncommon event in personal injury damages assessment, is no bar (at [85]).
70State of NSW v Moss is generally cited as the relevant authority on how to assess such loss in circumstances where the evidence is uncertain or problematic. Where precise evidence is not available, the court must do what Devlin J in Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422 at 438 called "the best it can" (at [72]). The court is not constrained by narrow limitations even though it is not entitled, without evidence, to assume a specific figure for what could have been earned without the injury (at [77]).
71However, there is a difference between no evidence being available (in the sense of an identifiable claim, such as loss of a chance to enter a profession) and no evidence of loss at all. The cases discussed in State of New South Wales v Moss are cases where future earning capacity "has unquestionably been reduced" (at [87]). None of the cases considered by Heydon JA concerned injured persons who had returned to the workplace, declared fit to perform pre-injury duties, who had carried out those same duties for some years, and was still working full-time as at the time of the trial. The uncertainties to which Heydon JA are uncertain estimates of what those "unquestionable" losses are.
72The plaintiff does not suffer those losses today, in terms of her ability to work full time. There is no doubt that the plaintiff will remain full-time in the work force for the rest of her working career, and that all of the medical evidence points to her being able to do so, subject only to the potential future development of problems which will require investigation and potentially surgery at some time in the future and the vicissitudes of life in the workplace for a woman at the plaintiff's level of employment.
73Despite the plaintiff's willingness to work, she is in a vulnerable position in the workforce. She lost two jobs due to the financial problems of her employers, and had difficulty performing another job (coincidentally with the company which had employed her at the time of the accident) because of the amount of standing, as Dr Sullivan notes. She has not yet had difficulty finding another job, but as she becomes older, this will become more difficult. As a poorly-educated woman at the bottom of the workplace ladder, the plaintiff will be even more likely to have difficulty changing jobs, or taking any time off work in relation to ankle problems, by reason of this injury. I am satisfied that, for the range of jobs her education and training makes her suitable, her earning capacity has "unquestionably been reduced, but its extent is difficult to assess" (State of New South Wales v Moss, supra, at [87]).
74In circumstances such as these, an award of a buffer for future economic loss would reflect the proposition that, to paraphrase Heydon JA, the want of precise evidence does not necessarily result in non-recovery of damages: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302 at [7] per McColl JA. However, McColl JA went on to warn that this was not a licence to award buffers indiscriminately; where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer (at [9]). It was when I drew these observations to Mr Lidden's attention, his response was to identify the sum sought as future wage loss as 25% of the plaintiff's current salary of approximately $52,000 per annum ($150,000) plus future loss of superannuation (at 13.93%) totalling $20,895.
75Mr Lidden SC's submission that the plaintiff has lost 25% of her income earning capacity for the whole of her working life (the basis upon which the claim for $150,000 is claimed) does not take into account McColl JA's explanation of the process for estimating future economic loss by the comparison of the past and future earnings, and endeavouring to identify the impact of the plaintiff's injury on her future earning capacity. The plaintiff's injury may affect her prospects of finding employment if, as has occurred in the past, she is made redundant due to her employer putting off staff or going out of business; similarly, at some future stage of her working career, she may require absence from the workforce for some months to have surgery, which may impact upon her ability to return to the workforce. That is the extent of her future economic loss, and to put that loss at 25% of her current income is demonstably an overstatement of that loss.
76However, the defendant's estimate of zero for future economic loss similarly fails to apply the principles of State of NSW v Moss, supra, as explained by Basten JA in Allianz Australia Ltd v Kerr, supra, at [24], where his Honour stresses that the question is not loss of income, but loss of capacity to earn income which "is or may be productive of financial loss", citing Graham v Baker (1961) 106 CLR 340 at 347; State of New South Wales v Moss, supra, at [71] per Heydon JA; State of New South Wales (NSW Police) v Nominal Defendant (2009) 53 MVR 243 at [86] per Beazley JA (Allsop P and Macfarlan JA agreeing). The plaintiff is not required with precision to identify that loss; the court must assess the degree of probability that the loss will occur (at [26], citing Malec v JC Hutton Pty Ltd (1990) 169 CLR 638).
77The medical evidence is, as has already been noted, scant and dated. Dr Sullivan's report does, however, identify arthritic changes, which is suggestive of the possibility that the surgery to which Dr Kuo refers may be appropriate in the future. More importantly, Dr Sullivan notes that the plaintiff has some discomfort with prolonged standings and that the plaintiff "does overdo this for eight hours a day".
78There is only a small likelihood is that the plaintiff will require ongoing treatment and potentially, towards the end of her working life; perhaps more realistically, however, her arthritic changes will impact upon her ability to perform work requiring standing for long periods, and she will continue to have problems at work when carrying heavy objects and walking on uneven ground. These problems will impact upon her employability in the event of changing jobs.
79Taking the above into account, the most realistic way to approach the quantum of the plaintiff's future economic loss is to allow for a buffer representing six months and a year of employment and the superannuation benefits for the relevant period, using the plaintiff's current salary as a guide, and taking into account the long period of her future working life up to seventy years of age. Based on the information provided to my by counsel in the course of closing submissions, in the course of which I invited them to address me as to what such a buffer should be, I propose to award a buffer of $50,000.
80This figure is "necessarily impressionistic", for the reasons explained by McColl JA in Allianz Australia Ltd v Kerr, supra, which are worth repeating:
"It must also be taken into account, when considering theappellant's complaint about the adequacy of the claims assessor's reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is "necessarily impressionistic": Brear v James Hardie & Coy Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 at [49] per Mason P (Spigelman CJ and Priestley JA agreeing)."
81The reasons for this figure being impressionistic are the failure of the plaintiff's legal advisers to provide up-to-date medical reports or evidence in relation to the plaintiff's future treatment (including the failure to answer Dr Sullivan's report, which does not refer to surgery as necessary) and the wide difference in the submissions made to me by both parties at the hearing.