(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.
54 In support of his cross-appeal, the plaintiff sought to rely on an affidavit by his solicitor showing that his employment with Multiserv had in fact ceased on 30 September 2009. The Court indicated that it would decide on the admissibility of that evidence in its judgment. The plaintiff also sought to rely on an affidavit by the plaintiff himself; but in circumstances where that affidavit was served very shortly before the hearing, and where the other parties wished to respond to it if it were admitted, the Court decided to reject that affidavit on the ground that it had not been served a reasonable time before the date fixed for the hearing of the appeal and cross-appeal.
55 For Hanson (and Pioneer) it was submitted that the primary judge erred in basing the award for future economic loss on a loss of capacity referable to his then current earnings of about $75,000 net per year, which were substantially in excess of pre-injury earnings and in excess of what it was likely that the plaintiff would have earned if he had not been injured. It was submitted that the plaintiff should have been awarded no more than a buffer in the order of $60,000.
56 For the plaintiff, it was submitted that the primary judge erred in finding that the plaintiff had not established on the balance of probabilities that he would shortly lose his job with Multiserv, and not be able to obtain alternative work. Further, the evidence now showed that the plaintiff's employment with Multiserv had been terminated.
57 It was submitted for the plaintiff that future economic loss should be awarded on the basis of a loss of a total of $826.88 per week, for 25 years (multiplier 753.6) less 20 per cent for contingencies.
58 Dealing first with the question whether the affidavit should be admitted into evidence, general principles in relation to evidence of this kind have been stated by Lord Wilberforce in Mulholland v Mitchell [1971] AC 666 at 679-80, to the effect that it is a matter of "discretion and degree" and that:
Negatively, fresh evidence ought not to be admitted when it bears on matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront commonsense, or a sense of justice. … The exceptional character of cases in which fresh evidence is allowed is fully recognised …
59 This approach has been applied in New South Wales in Warr v Santos [1973] 1 NSWLR 432, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235 and Doherty v Liverpool Hospital (1991) 22 NSWLR 284.
60 In my opinion, the fresh evidence in this case does "bear on matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made"; and I would not admit it for the purpose of making good a ground for challenging the primary judge's assessment of future economic loss. However, if grounds for intervening in that assessment are otherwise made out, so that this Court has either to assess that element of damages itself or order a new trial, then fresh evidence of this kind is much more readily admitted: Warr. For reasons I will give, I do think grounds for intervening in the primary judge's assessment of future economic loss are otherwise made out, and I would admit the affidavit for the purpose of assisting this Court in assessing that element of damages.
61 I am not satisfied the primary judge erred in the respect submitted by the plaintiff. The plaintiff did give evidence that one of his roles was to drive a pneumatic tanker, into which solid material is pumped and then pumped out at another location (Black 90C-M), and it appears that it was on that basis that Mr McDonald of BHP expressed the view at trial that the plaintiff's job concerned a contract that was not to terminate on 30 June 2009. The plaintiff did give evidence that he also drove trucks filled with scrap metal, but it was not put to Mr McDonald that this meant his job must concern the contract that was to terminate on 30 June 2009; so in my opinion the conclusion of the primary judge was one that he could reasonably reach.
62 However, in my opinion the primary judge did err in the way contended for by Hanson (and Pioneer). The plaintiff's future economic loss had to be assessed by comparison with his "most likely future circumstances but for the injury" (Civil Liability Act s13), which was, on the primary judge's findings, his continued employment with Adecco at the October 2008 equivalent of $700 net per week in June 2002. The Court was not provided with evidence of what that equivalent was, but applying the available CPI figures, it would appear to be about $850 per week net.
63 On one view, it might be said that the primary judge assessed the plaintiff's residual capacity at just over $1,000 net per week, suggesting that there should be no future economic loss. In my opinion, the better view is that the primary judge assessed his residual capacity on the basis of a loss of about 28 per cent, which gives a figure of about $400 when applied to $1,440 per week (derived from $75,000 per year). Applying the same percentage to $850 per week would give a loss of about $250 per week.
64 It was submitted for the plaintiff that he has now lost his job with Multiserv and is virtually unemployable. However, the plain fact is that, to his credit, the plaintiff was able to obtain the job at Multiserv and retain that job for five years, after which he was made redundant because of the economic downturn. There was no suggestion that he was unable to perform the job or did not perform it satisfactorily.
65 In my opinion, an assessment of the plaintiff's residual capacity at about $600 per week, that is, substantially less than half of what he was earning with Multiserv, is a reasonable assessment; and on that basis I would award future economic loss on the basis of $250 per week, applying the multiplier of 753.6 and deducting 20 per cent for vicissitudes, giving $150,720.