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Category: Consequential orders

Parties: Sungchell Gong (Plaintiff)
AWI Steel Pty Ltd (First Defendant)
Ebenezer Engineering Pty Ltd (Second Defendant)

Representation: Counsel:
S E McCarthy and W J Lidden (Plaintiff)
R Perla (First Defendant)
Solicitors:
Park & Co Lawyers (Plaintiff)
Wotton Kearney (First Defendant)

File Number(s): 2022/387580

Publication restriction: Nil

JUDGMENT

1. In April 2026 I entered judgment for Mr Gong, ordering the parties to confer about the resulting calculation of damages and costs and to file proposed orders: Gong v AWI Steel Pty Limited [2026] NSWSC 331.

2. The partes could not agree on the calculation of future economic loss or the percentage rate of vicissitudes to be applied. Their differences were explained in further written submissions.

3. Mr Gong claimed that his future economic loss should be calculated at the net rate of $2,000 net per week, with a 15% discount for vicissitudes. AWI that it should be $1,800 net per week, with a 35% discount for vicissitudes.

4. Mr Gong’s calculations rested on the assumption that he would continue working a 50-hour week, as he was at AWI at the time of the accident, until retirement. It having been accepted that he had no residual earning capacity, the appropriate and conservative measure of his future loss he urged being $2,000 net per week.

5. This was disputed. AWI submitting that there was no evidentiary basis for calculation of his future economic loss on that basis.

6. At trial Mr Gong had accepted that there should be a 15% discount for vicissitudes. AWI contended that it should be higher, given uncertainties about Mr Gong’s work, visa status and psychiatric condition. Urging that:

“13. The assessment of the plaintiff’s future economic loss must take into account the real and specific contingencies that would have affected his earning capacity in any event. In this case, the plaintiff’s immigration status, including his reliance on temporary and bridging visa arrangements (see paragraph 11 and 12 of Ex 3), gives rise to a materially higher level of uncertainty than that faced by an Australian citizen or permanent resident with unrestricted work rights. There is a real question as to the plaintiff’s most likely future circumstances but for the incident, having regard to the issues surrounding his lawful status in Australia and his entitlement to work. The evidence established that the plaintiff has been fearful of losing his visa status and at the time of the hearing was seeking a review of a decision refusing a protection visa (see T104), matters which sit wholly outside the control of the first defendant and introduce a genuine risk of interruption or cessation of lawful employment irrespective of the injury.

14. Further, the plaintiff’s work history discloses periods of instability and inconsistency (see paragraph 16 of Ex 3), undermining acceptance of a continuous or uninterrupted earning trajectory into the future.

15. When the uncertainty arising from his visa status is considered together with his pre-injury employment, the likelihood of adverse vicissitudes affecting future earnings is materially elevated. In those circumstances, the conventional allowance of 15% for vicissitudes is inadequate. A discount of 35% properly reflects the heightened risk that the plaintiff’s earning capacity would have been adversely affected by the factors identified above.”

7. Mr Gong’s case was that this had already been rejected at [524] of the April judgment:

“524. That he has ongoing concerns about his visa status, does not alter this outcome. I am not persuaded that s 13(2) of the Civil Liability Act requires an adjustment to the amount of Mr Gong’s damages for future economic loss because of the possibility that these events might have occurred, but for his injuries.”

Future economic loss

8. The two requirements for the recovery of damages for loss of earning capacity are that a plaintiff's earning capacity was in fact diminished and that the diminution of earning capacity was or might be productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48. That requiring an approach according with that adopted in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20*,* taking into account both assumptions about future earning capacity or other events which accord with Mr Gong’s most likely future circumstances, but for the injury. As well as the percentage possibility that the events might have occurred, but for the injury: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [128]-[137]: at [475] of the April judgment.

9. I concluded that in calculating Mr Gong’s disputed damages for future economic loss, that he had a choice about how to provide his services, had to be taken into account: at [483]. I considered that his approach, which was not confined to a consideration of what he had earned at AWI, had to be accepted: at [484]. And that he had no residual earning capacity and no evidence that semi-sedentary work was practically available to him: at [492]. But for his injuries he would have continued to pursue trade work: at [521]. He has no real prospect now of exploiting his limited capacity to perform part-time work in a sedentary position: at [523].

10. Still the weekly figure on which Mr Gong’s future economic loss should be calculated finally, still could not be agreed.

11. Section 13 of the Civil Liability Act 2002 (NSW) requires Mr Gong to satisfy the Court that the assumptions about his future earning capacity or other events on which this calculation is based, accord with his most likely future circumstances, but for the injury: s 13(1). His damages also having to be adjusted for future economic loss that would have been sustained on those assumptions: s 13(2). And the Court having to state both the assumptions on which his award is based and the relevant percentage by which they were adjusted: s 13(3).

12. Mr Gong’s case was that his damages had to reflect that but for his injuries, he would have continued his work full-time to age 67 and that the evidence did not warrant any adjustment under s 13(2), other than the normal deduction for vicissitudes of 15%.

13. Such a deduction reflecting “an 85 percent chance that an applicant would have experienced his or her most likely future circumstances.”: Penrith City Council v Parks [2004] NSWCA 201 at [56]. The 15% discount reflecting the chances of “the most likely future circumstances” occurring if the claimant had not been injured.

14. In Penrith City Council at [51], it was also explained that the steps s 13 requires are:

“Firstly, the court must determine the ‘most likely future circumstances’ of a claimant ‘but for the injury.’ This requires the court to assess matters such as the prospects of a claimant gaining or remaining in employment, and for what period and also determine the rate at which he or she may earn during that employment; these are ‘assumptions about future or other events’.

Secondly, the court must make an adjustment to any award by reference to ‘the percentage possibility that the events might have occurred but for the injury.’

Thirdly, the assumption and the percentage must be stated.”

15. Further, that what “the section is attempting to do is identify the pre-injury circumstances upon which any award of damages may be based, but it does not dictate the outcome in the event that only part of a claimant's earning capacity has been affected by the injury.”: at [58].

16. What was in issue at trial in relation to Mr Gong’s future economic loss included whether he had any residual earning capacity and whether there should be a greater deduction under s 13(2) than he conceded.

17. I concluded that Mr Gong had suffered not only a loss of income, but a loss of earning capacity and that he had been left with no real prospect of exploiting his limited capacity to perform some part-time work in a sedentary position in future: at [403].

18. I accepted that but for the accident, his most likely future earning capacity would not have been so diminished, given his likely circumstances: at [476].

19. I also accepted that Mr Gong’s likely future circumstances required attention to be paid to the increased wages AWI was paying tradesmen like him, as well as his bridging visa status and legal ability to work. He pursuing a review of the denial of a protection visa and being fearful of losing his visa status: at [493]. But that this did not warrant the deduction for vicissitudes AWI urged: at [494].

20. The calculation of his damages for future economic loss Mr Gong which pressed was explained:

“11.6.3. Reference is made to the proposed “assumptions” pursuant to s13 CLA posited in paragraphs 11.4.18 and 11.4.19 above. As submitted, there is no practical prospect of the plaintiff returning to work in any form. It is not fair to assess the plaintiff’s future loss (a 27-year period) based on current earning figures. Adopting Mr Gim’s rates for boilermakers taken from Exhibit 56, the plaintiff (uninjured) could currently be earning $65 per hour. Over a 50 hour week431, that equates to $3,250 gross per week. It can be conservatively predicted that the plaintiff’s income would by now be at least $2,000.00 net per week. The 5% multiplier for 27 years is 783.0. The discounted loss amounts to $1,566.000. Once vicissitudes of 15% are deducted, the plaintiff’s future loss of income is $1,331,100. As to the percentage of vicissitudes, there should be no increase above the 15% convention based on the mere possibility that some latent psychological vulnerability may have manifested itself in the future. The supplementary report of A/Prof Robertson (Exhibit 8, CB 427) deals directly with this subject.”

21. This calculation was resisted, AWI contending that future economic loss should be calculated at the rate of $1,800 net per week. Relying on Avopiling Pty Ltd at [153] and [160].

22. There it was not future economic loss which was in issue, but future attendant care and the provision of various future services, to which s 13 also applied. This was resolved by applying the “Malec v JC Hutton approach”. That being “because the necessarily speculative nature of future events requires this approach”: at [137].

23. In Mr Gong’s case, the evidence established that for a 50-hour week at $65 per hour, which he was typically working before he was injured, he would have received $3,250. His claim was for $2,000 net per week, while AWI pressed $1,800 net, the rate relied on for his past economic loss in December 2025.

24. This reveals that the parties were unable to resolve their differences because of the assumptions on which their respective calculations were based.

25. The assumptions implicit in Mr Gong’s calculations including not only the $65 rate AWI was paying at the time of the hearing, but that but for his injury, each week he would be working 50 hours for the next 27 years. Which AWI did not accept, also urging its view about the level of uncertainty Mr Gong faced about his future, higher than that faced by an Australian citizen who had unrestricted work rights. His circumstances likely resulting in a genuine risk of interruption or cessation of lawful employment, irrespective of his injury, which had to be taken into account in the calculation.

26. It seems to me that the calculation cannot justly be based on the assumption that but for the accident, Mr Gong would until age 67 have worked 50 hours per week in his trade, each week. It was not suggested that there is a contractual basis for that assumption, such hours involving considerably more work than full-time employment involves. Albeit I accept that the evidence establishes that he was prepared to work such hours, if available.

27. Mr Gong’s services were provided by Gong Engineering, which employed him. The contractual arrangements between them and that with Ebenezer, which supplied his services to AWI, were not documented. Nor was the arrangement between Ebenezer and AWI.

28. The evidence included that in the past, Gong Engineering had provided Mr Gong’s services to other companies. As well as Ebenezer having laid off tradesmen such as Mr Gong, when AWI did not have sufficient work to occupy them.

29. In all of those circumstances, I am satisfied that the obligation to pay attention to Mr Gong’s most likely circumstances, but for his injury, cannot permit the assumption he pressed to be accepted. That must lead to the acceptance of the basis of the calculation of the net sum of $1,800 per week which AWI pressed.

30. That but for his injury Mr Gong would have been entitled to receive wages from Ebenezer at the rate of 50 hours per week, even when he was sick, taking leave, or when he had to pursue work with companies other than AWI, not being able to be logically accepted.

31. But I was still not persuaded that a discount of 35% for vicissitudes was a just basis for the calculation of the disputed damages.

32. Mr Gong’s very difficult childhood circumstances led him to pursue a protection visa in Australia, thus far unsuccessfully. But that he has had a successful life in South Korea and Australia, despite that background, cannot be ignored. Having not only obtained trade qualifications and worked in South Korea, but also travelled with his family to Australia, where he was successful in requalifying in his trade, despite his limited command of English, and as a result was able to obtain and undertake the work which he has successfully pursued through Gong Engineering.

33. That, in my view, does not provide a just basis for the very significant discount which AWI pressed, which I have not been persuaded would reflect Mr Gong’s most likely future circumstances, had he not been injured as he was. Despite his vulnerability to psychological injury.

34. That Mr Gong’s most likely circumstances, but for the accident, would having been succumbing to such injury, I consider is not established by the evidence. It appearing to have been the uncommon pain syndrome which he developed as the result of the relatively minor physical injuries he suffered, which undermined his long ongoing psychological resilience.

35. The parties agreed that these conclusions would result in the completion of the calculation of damages for future economic loss, including for loss of superannuation.

Orders

36. Accordingly, I order that the final proposed orders be filed within seven days.

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