Caldwell v Coles Supermarkets Pty Limited [2010] NSWDC 136 | Case summary

District Court of NSW|2010-06-04|Before: Mr P

For the reasons I have already given, I am satisfied that by reason of his permanent disability the plaintiff continued to remain partially incapacitated after moving to Queensland, and will continue to suffer a reduced earning capacity in the future. The high probability is that this situation is permanent and will continue for the rest of his working life.

Turning to the second contention, it is true that the plaintiff and his family had aspirations of moving to Queensland that preceded his injury. But the evidence is that he was not prepared to make that move precipitately without securing appropriate alternative employment in that state. No doubt his injury increased that aspiration, having regard to the positive aspects of a warmer climate on his disability, but he is not the sort of person who would deliberately disadvantage his family by moving, if that was to impact negatively on his earnings. The defendant's proposition is predicated on the assumption that his former employer, Linfox Australia Pty Ltd would have continued to employ him and remunerate him consistently at pre-accident rates for the rest of his working life irrespective of whether he was capable of performing the work required. There is no evidence of that and it is improbable. I am satisfied that his disability has caused financial loss notwithstanding his move.

Accordingly, I reject the contention that any loss of earnings, or diminution in the plaintiff's earning capacity into the future is an outcome of his move to Queensland and is unrelated to his disability and physical restrictions.

The evidence, in particular the evidence of Mrs Caldwell, establishes that after they moved to Queensland the plaintiff's level of remuneration deteriorated by reason of the reduced hours he has been capable of obtaining, a direct product of his disability. She had to go back to work to supplement his income, notwithstanding their two young children, and more recently the plaintiff had to switch jobs to work at nights, to raise his earnings. I am satisfied, however, that this is having a serious deleterious effect on their quality of life and the family unit, and that he will not reasonably be capable of sustaining the night work into the future.

I am satisfied, therefore, that the plaintiff not only continued to suffer a diminution in his earning capacity following his move to Queensland but that the diminution has been productive of financial loss. What needs further examination, however, is the actual loss that has been caused so far, and the extent to which that diminution will be productive of loss in the future.

So far as the disputed aspects of the claim for the past are concerned I am satisfied that the plaintiff's average nett weekly earnings in 2009 were in the order of $1,005.00, but that in the last 6 months since he switched to night work, his earnings have been in excess of his pre-accident earnings, even allowing for some increase in any comparable figure due to the passage of time.

For those reasons I calculate the plaintiff's past wage loss as follows:

2007: Conceded $21,677.00 2008: Conceded $19,656.00 2009: As claimed $ 9,256.00 2010: No loss Nil Total $50,589.00

I therefore find past wage loss in an amount of $50,589.00. To this amount I add superannuation $5,565.00 (at 11%) and the agreed Fox v Wood component of $3,680.00, giving a total for past economic loss of $59,834.00.

Turning to the future, the plaintiff makes a claim of $367,182 for the reduction in his earning capacity. He calculates this by reference to a nett weekly loss of $600.00 for the remainder of his working life, less 15% for vicissitudes.

Damages for future economic loss are to be assessed having regard to s 13 of the Civil Liability Act 2002:

"Future economic loss - claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

The defendant submitted that the plaintiff's future earning capacity would have been adversely affected by a pre-existing back condition. The contention is not supported by any medical evidence. All that the evidence establishes is that the plaintiff has had some back problems in the past, but the impact on his ability to work as a truck driver has been minimal.

I am satisfied that the following assumptions about the plaintiff's future earning capacity accord with his most likely future circumstances but for his injury: He would have worked till the age of 67 on day shift as a truck driver earning an average nett weekly income commensurate with his pre-accident earnings and hours worked for the next 20 years, but with the hours involved no doubt diminishing in his later years as his children grow up, and the family's financial needs reduce.

The amount of the award of damages for future economic loss that would have been sustained by the plaintiff would in the ordinary course be adjusted by reference to a possibility that the events concerned might have occurred but for his injury: s 13(2) of the Civil Liability Act 2002. There should, therefore, be a 15% reduction for vicissitudes.

My assessment of the plaintiff's future is that he will abandon the night job at the end of these proceedings and revert to a day job in which his earnings will reduce due to his incapacity to work the longer hours he would have worked but for his injury. I am not satisfied that but for his injury, the plaintiff would be now be earning a weekly income that would be productive of a weekly nett loss of $600.00. Doing the best I can on the economic material tendered as to base rates, base hours, and overtime conditions in the trucking industry, and having regard to a probable wind back in overtime hours in later life, I find that his nett weekly loss over the remainder of his working life will average $275.00.

I calculate the present lump sum equivalent of that loss (at 5%) as follows:

$275.00 x 23 years (721.2) = $198,330.00 less 15% for vicissitudes = $168,580.50

I allow a total round figure of $187,125.00 to compensate the plaintiff for future economic loss.

The final head of damages to be considered and assessed is non-economic loss. Counsel for the plaintiff submitted that the severity of the non-economic loss as a proportion of a most extreme case should be assessed at 35%.

The defendant submitted that the appropriate assessment is in the range of 20% to 25% of a most extreme case.

A permanent shoulder injury of this kind that results in significant pain on a daily basis, aggravated by particular activities, with the prospect of a lifetime of discomfort and restricted movement, is in my view a serious disability. The plaintiff does obtain relief from medication, and I take that into account. Nevertheless this man is restricted in various social and sporting pursuits - he can no longer swim overarm, an activity he enjoyed before the accident, nor can he play golf any more. He cannot engage in lifting or swinging his children. Emotionally he is adversely affected, and his wife has noted a marked change in his personality. She has also observed that he has developed a drooped posture. There has been a significant adverse impact on his family life.

I assess the severity of the non-economic loss at 30% of a most extreme case. That currently produces a statutory amount for non-economic loss of $109,000.00: s 16(3) of the Civil Liability Act 2002.

The calculations as to the damages are set out in the table below, which tabulates the total amounts for each individual head of damages as I have found them, in summary form, on a rounded up basis, together with the total damages assessed.

Heads of Damage Amount Past out-of-pocket expenses $ 7,885.00 Future medical expenses $ 32,800.00 Past economic loss $ 59,834.00 Future economic loss $187,125.00 Non-economic loss $109,000.00 Total damages $396,644.00

Orders for costs are to be made in accordance with r 42.1 and r 42.2 of the UCPR, unless some other order or orders are appropriate.

I enter a verdict for the plaintiff against the defendant for $396,644.00, and direct the entry of judgment for that amount.

I give leave to the parties to apply for some other costs order provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Caldwell v Coles Supermarkets Pty Limited [2010] NSWDC 136

Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7 Hackshaw v Shaw [1984] HCA 84 CASES CITED: Khan v Polyzois [2006] NSWCA 59 Medlin v State Government Insurance Commission [1995] HCA 5 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

The defendant also disputed the extent of the plaintiff's disability and contended that any reduction in his earning capacity is not and will not be productive of financial loss: Medlin v State Government Insurance Commission [1995] HCA 5 as cited in Khan v Polyzois [2006] NSWCA 59 at [39].

The duty to take reasonable care requires an occupier of premises to protect entrants from risks of injury that can be foreseen and avoided: Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [90]. What is reasonable will vary with the circumstances of the plaintiff's entry upon the premises: Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7.

The measure of the discharge of the duty is what a reasonable person would, in the circumstances, do by way of a response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84.

Caldwell v Coles Supermarkets Pty Limited

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