Past and future loss of earning capacity, interest and superannuation - items 3, 4, 5 and 7
26 His Honour awarded the first respondent $50,880 for past loss of earning capacity (item 3), $15,860 interest on past lost earnings (item 4), and $720,169 for future loss of earning capacity (item 5). His Honour also awarded $2,100 for past loss of employer-funded superannuation (item 6 and not in dispute) and $84,700 for future loss of employer-funded superannuation (item 7).
27 According to the submission of counsel for the appellant the single issue in dispute under these heads of damage is whether his Honour erred in adopting the category of average weekly earnings for all adults (male and female). The appellant submitted that his Honour should have adopted the average weekly earnings (AWE) for all adult females. In money terms, the difference is around $80 per week or a little over $4,000 per annum. This flows through to each of the items of damage in dispute under the above heads of damage.
28 In approaching this issue the Court will apply the principles discussed earlier in paras 15 to 18 of the Court's reasons for judgment. This essentially means that the appellant must convince the Court that the trial judge acted on a wrong principle or the estimate of damage was an entirely erroneous one, see Harper v Bangalow Motors and Miller v Jennings.
29 With regard to Calandre's loss of earning capacity, the starting point is that the appellant accepts that her future earning capacity has been completely destroyed with the result that she has no residual earning capacity [para 338]. His Honour concluded that the appropriate and most proximate rate to apply was the full time adult rate and not the AWE for full time adult females.
30 On the way to this conclusion Whealy J made a number of relevant findings of fact. We summarise some of them by reference to the judgment.
31 Prior to the consideration of loss of earning capacity, and when considering whether the plaintiff would have been likely to have undertaken tertiary education, his Honour observed [at 331]:
"… there is sufficient material to satisfy me that there is a higher possibility that the plaintiff had a capacity for, at the very least, average prospects so far as future earnings are concerned. Indeed, she had quite probably a realistic possibility of becoming a high earner".
32 Counsel for the plaintiff contended before his Honour that she would, if uninjured, have become a successful lawyer. His Honour rejected this submission, but in doing so, made some important findings. For example:
"… her father is a highly successful professional, indeed described in the evidence and submissions as "a workaholic". Her mother, Gail Simpson, is a redoubtable woman of significant determination, perseverance and aptitude. These aspect [sic] of the family's situation are countervailing considerations in the context of the submissions made by the defendant regarding the plaintiff's sisters". [346]
"Calandre's personal characteristics certainly support the proposition that she would have become at least an average earner, and quite possibly a higher than average earner. They do not, however, enable me to predict with any really positive persuasion that she would probably have gone into a legal career". [348]
"Calandre Simpson is a young lady of considerable drive and determination. She has average intelligence. There seems no basis, in my opinion, for excluding the possibility that she may have gone on to become a high earner in the workforce. It is possible that she may have gone on to a tertiary education and there is some support for that proposition in her own character and the background of her father especially. There is, however, very little else to support the possibility and I am not satisfied overall that any real possibility of a legal career based on tertiary education has been established as likely". [354]
33 Clearly Whealy J recognised that it was a possibility that Calandre may have undertaken tertiary education. Indeed, there were a number of possibilities that her career could have taken. However, because she was injured at birth, very little could be known or even guessed regarding her likely career path had she not sustained injuries during the birth.
34 His Honour continued [at 358]:
"The best I have been able to do is to determine that she would have most likely developed into and become a person who would have undertaken and succeeded at a business career which probably would have put her in at least an average earning position and, quite possibly, a better than average earning position. The mere fact that little is known, and that a degree of guesswork is involved, is not sufficient to condemn the plaintiff to an unjustified average category. The facts which are known about the plaintiff include the positive personal characteristics I have already described such as her drive and determination. There are as well her personality, intelligence and lively humour. In addition there is her father's successful professional background as a dentist and his obvious capacity for hard work. There are, as well, her mother's qualities of determination and perseverance and aptitude. Contrary to the defendant's submissions, I do not see the plaintiff's socio-economic ground [sic] as a negative factor in the circumstances of this case. Rather given the range of other factors I have mentioned, the plaintiff's background gives me an assurance that she was likely to have done well in her business career. I have little doubt that she would have married and had children but I am prepared to accept as quite a likely possibility, indeed a probability, that the plaintiff would have maintained a business career notwithstanding marriage and the burdens of parenthood".
35 His Honour stated emphatically that he had no hesitation in rejecting the category of AWE for adult females suggested by the appellant. His Honour said that this was too low a yardstick for the plaintiff [360] because it included all the lesser rates for part-time earnings and casual earnings for intermittent female workers "absent a specific degree of ambition".
36 The Judge stated that if the rate contended for by the appellant were to be chosen, it would be necessary to make an adjustment to reflect "the particular level of earning capacity I have found Calandre is likely to have achieved" [361].
37 Whealy J concluded that on balance, the most appropriate rate was the full time adult rate, which comprised both men and women. This category was the most convenient because it required no further adjustment. His Honour added:
"Importantly, the selection of this rate enables the court to take into account the very real possibility that the plaintiff may have become a high income earner in the pursuit of a business career" [362].
38 Counsel for the appellant submitted that there was no evidence before his Honour to suggest that any category other than AWE for adult females was appropriate. His Honour's reference to a "business career" was vague and provided no guarantee of above AWE. In any event, a possible business career offered no justification for moving from the AWE female rate to the all-adult rate. Moreover, the performance of the plaintiff's siblings provided no guide to the possibility of above AWE earnings.
39 Two further points were emphasised by Mr Brereton. First, the use of average rather than median rates in the AWE females category allowed for the prospect of higher than average income, see Rosniak v GIO (1997) 41 NSWLR 608 at 627-628 and, if his Honour considered that the plaintiff's prospects were better than average, he should have adjusted the AWE female rate rather than adopted the AWE all adults category.
40 At the trial, the appellant sought to portray the development and experience of the plaintiff's sisters as indicative of the likely career path of the plaintiff. His Honour considered this submission and concluded that it must be rejected as "too glib a prophecy to glean from the experience of the sisters". The siblings' development and experience could not be separated from the family circumstances, which were overwhelmed by the ordeals arising from Calandre's disability [330]. If Calandre had not been injured at birth, it was possible that the lives of the family members might have taken a different course. In any event, the two younger sisters, Chloe 16 years and Jade 19 years, were both too young to draw any adverse conclusions against the plaintiff.
41 The first respondent contended that the evidence concerning each of Calandre's sisters provided a very thin basis to counter the view that his Honour formed of the plaintiff. Mr Jackson pointed to the advantage that his Honour had in assessing the plaintiff at first hand.
42 It is plain to us that Whealy J considered the development and experience of the siblings of the plaintiff. He balanced that evidence with the other evidence. As against this, he had the positive experiences of the father and mother referred to by his Honour in para [346] of the judgment.
43 In essence the appellant complains that his Honour did not give the evidence concerning Calandre's sisters more weight in the balance. This is an inadequate basis for a submission alleging an error in principle.
44 As mentioned above, the appellant is critical of his Honour's findings regarding the possibility of the plaintiff earning higher than average earnings from a business career. There can be no suggestion that Whealy J's findings that the plaintiff had many positive personal characteristics including her considerable drive and determination, insight and intelligence, were not properly open on the evidence. Nor could it be said that his Honour was not entitled to find that there was sufficient evidence to satisfy him that there was a higher possibility that the plaintiff had the capacity of at least average prospects and probably a realistic possibility of becoming a high earner.
45 Having considered the "very real possibility" that the plaintiff would have become a high-income earner, which would probably put her in a better than average earning position, his Honour was left with two possibilities. He could adopt AWE females full-time as the most appropriate category but make an adjustment upwards to take account of the chance of higher than average earnings and his positive assessment of the plaintiff's likely future economic capacity.
46 Alternatively, he could adopt the AWE for all adults as best reflecting his assessment of the possibilities for the plaintiff.
47 It seems to us impossible to conclude that his Honour erred in principle in selecting the higher category. After all, it includes both adult female workers, as well as adult male workers. His Honour found that the choice before the court was between the AWE full-time adults category and that for adult females [361]. Even if he chose the latter, it would still be necessary to adjust it to reflect his views of the plaintiff's likely level of earning capacity. In the end, his Honour concluded that the most proximate rate was that for full-time adults. His Honour stated that this rate best reflected the "very real possibility that the plaintiff may have become a high-income earner".
48 We are unable to conclude that in adopting the AWE for all adults, his Honour committed an error of principle by selecting the wrong class or category of employees. He was clearly appraised of the fact that the AWE adult female category included higher than average female earnings. Further, we are unable to conclude that, given his Honour's singular advantage, there was a misapprehension of the facts. Indeed, the findings of fact made were available on the evidence and open. It cannot be said that the result arrived at by his Honour was other than well within the available range.
49 As a result, these grounds of appeal must be rejected.