INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- WEATHERALL [2007] WASCA 264 (4 December 2007)

INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- WEATHERALL [2007] WASCA 264 (4 December 2007) - WASCA 2007 case summary — Zoe

[77]

The plaintiff is 39 years of age. She was born in the United Kingdom on 27 September 1965 and emigrated to Australia after finishing school with an achievement certificate at age 16. She undertook two unskilled jobs for one year in Australia working as a kitchen hand at Graylands Hostel and as a teacher's aid at the Wanneroo Community School. Then she earned a certificate for caring for the elderly which involved practical work at St George's Nursing Home, at Balga Special School and at Sir David Brand Centre. After completing that certificate in 1984 she returned to the United Kingdom in 1985 on a one year working holiday when she worked in restaurants. Upon her return to Australia in 1986 the plaintiff worked as a despatch clerk at Aherns but did not enjoy that job because she was not in an environment with people.

In 1986 she joined Kmart where she started on the checkout counter but soon began working in the photo lab where she was trained on the job and obtained certificates of her qualifications as a photo lab technician beginning in 1992. Fourteen certificates (exhibit 1) were Kodak certificates. Two others recognised her five year and then in 1996, her 10 year service to Kmart. During her 10 years' employment the plaintiff gained the highest qualification as a specialist photo lab technician and was qualified as a trainer.

On 31 July 1996 the plaintiff resigned from Kmart (exhibit 10). She explained that she resigned in order to access her long service leave money, some $6,000, but, despite her resignation, she continued working part-time at Kmart in the same job as a photo lab technician. The plaintiff used her long service leave payment to pay for IVF treatment and she fell pregnant in July 1996. On 18 February 1997 the plaintiff signed a part-time contract for 20 hours work per week with Kmart (exhibit 11).

On 27 March 1997 the plaintiff gave birth to her twins, Jack and Libby. Libby was diagnosed with mild cerebral palsy. At the time the babies were born the plaintiff and her husband lived in Rockingham but they soon moved to Kingsley to be near the plaintiff's mother, Sylvia Betts. Mrs Betts was employed in two jobs but her hours were flexible and she was able to help her daughter with the twins. At the time the twins were born the plaintiff's husband's employment was in transition. By 1995 he had worked for Kmart for 20 years. He resigned from Kmart in 1996 and worked for one year as a store manager at Red Dot. In 1997 he bought a seafood franchise and worked at it for 12 months but that business did not produce enough income to support the family. During 1997 the family finances were very minimal and the plaintiff went back to work at Kmart on a part-time basis in December 1997. The plaintiff's husband changed jobs again in 1999. A week prior to the motor vehicle accident he started working for Perth Construction delivering building materials to sites. It was a very full-time job. He worked 12 hour days some times seven days a week.

The plaintiff worked part-time from December 1997 until the accident on 7 January 1999, a period of approximately 56 weeks [2] - [6].

[115]

When the plaintiff worked part-time for Kmart after the birth of her twins she was earning $14.28 gross per hour. As she earned less than $3,000 during financial year 1998 and financial year 1999, gross and net figures are pretty irrelevant as she would have paid no tax. In assessing her loss of earning capacity from the date of the accident 7 January 1999 until the twins commenced school in February 2002, a figure of $15 per hour seems to me a fair assessment. That was a period of three years and four weeks equals 160 weeks. The plaintiff worked very few hours prior to the accident and I doubt if those hours would have substantially increased until the twins commenced school. I am prepared to allow for eight hours work per work during this period. That is more than she was working prior to the motor vehicle accident, but I accept that her hours would have gradually increased. She would therefore have earned an average of $120 per week for the 160 weeks equals $19,200 for that period.

During the first year the twins were at school (2002) I accept there was a 90 per cent chance she would have worked half time (20 per week) earning about $300 per week gross, or say $260 per week net. That would amount to $260 x 52 x .9 = $12,168 compensation for 2002.

During 2003 when Jack was so ill in July I am satisfied she would not have worked at all for two months, and there was only a 50 per cent chance that the plaintiff would have worked half time from September 2003 to December 2003. For the first six months of 2003 I award $260 x 26 x .9 = $6,084, and for the last four months I award $260 x 18 x .5 = $2,340. Total compensation for 2003 is $8,424.

From 2004 to July 2005, a period of 78 weeks, I award $260 x 78 x .9 = $18,252. Total past loss of earning capacity is assessed at $58,044. The plaintiff concedes this should be discounted for contingencies of 10 per cent = $52,240.

The plaintiff should also be compensated for loss of superannuation calculated as 9% of her gross past earnings = $5,762 less 30 per cent (Jongen v CSR Ltd (1992) A Tort Rep 81 - 192) = $4,033.

Interest of six per cent on past loss of earning capacity for 6.5 years = $52,240 x .03 x 6.5 = $10,187. Interest of past loss of superannuation = $4,033 x .03 x 6.5 = $786 [73] - [78].

[394]

The question remaining is what was the appellant's residual earning capacity, if any. This was clearly a case where, as the learned trial Judge found, the appellant had lost the earning capacity he had before the accident. The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 657 per Barwick CJ; Van Velzen v Wagener (1975) 10 SASR 549 at 550 per Bray CJ; and Linsell v Robson [1976] 1 NSWLR 249 at 253 - 254 per Hutley JA; and at 254 - 255 per Glass JA. In Baird v Roberts [1977] 2 NSWLR 389 it was held that a defendant who seeks to show that the plaintiff can still do 'light work' or follow a 'sedentary' occupation must adduce evidence that the plaintiff is able to do such work and to obtain it and what the earnings from it would be. The Full Court in Victoria has taken the same approach: Vandeloo v Waltons Ltd [1976] VicRp 6; [1976] VR 77. In that case, however, it was recognised that where the defendant was alleging that the plaintiff had unreasonably refused to undertake work of which he was capable, this was an allegation of failure to mitigate in respect of which the legal burden rested on the defendant: see also Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 at 139 per Jacobs J.

In the present case, while there was some evidence that the appellant may have been physically capable of some form of extremely light work, subject to the qualifications we have mentioned, there was no evidence of the availability of suitable work or of the likely earnings from any such work. This was a case where the appellant's case was such that there was an evidential burden cast on the respondent which was not discharged. It was not shown that the appellant was a malingerer or had unreasonably refused to take any suitable work which was available. The latter was a point upon which the respondent had the legal burden of proof (68,701 - 68,702).

[396]

It has been suggested that it was for the appellant in the discharge of the onus of proof of loss to lead evidence of the type of work still open to her, the availability of such work and the likely earnings from it. It was further suggested that in the absence of such evidence the appellant would have failed to prove her loss of future earning capacity. I am unable to accept these suggestions. They are inconsistent with the authorities referred to in Thomas v O'Shea. In this respect it is important to remember that nothing said in Thomas v O'Shea departed from the basic proposition that the legal burden of proof of loss rests on the plaintiff and that this includes 'the quantification in money that should be adopted in the sum awarded': Watts v Rake (1960)108 CLR 158 at 159 per Dixon CJ. Thomas v O'Shea was concerned with the circumstances under which the evidentiary burden may shift having regard to the state of the evidence in that case. Some authority for these suggestions may be found in Allan v Loadsman (1975) 2 NSWLR 789. In Theiss Properties Ltd v Page [1980] FCA 101; (1980) 31 ALR 430 the Full Court of the Federal Court also rejected the suggestions to which I have referred. Sheppard J (with whom Forster J agreed) said at 441 - 442:

'To some Allan v Loadsman appeared to lay down a principle that where, in the case of a partially incapacitated plaintiff, there was no evidence of what he was able to earn in employment within his capacity, there could be no recovery because the extent of the plaintiff's loss could not be quantified. If that were the ratio of the decision, I would myself have substantial hesitation in following it, if only for the reason that I would not have thought such a matter could be the subject of any principle of law. The question in all cases must be whether a plaintiff has established those matters upon which his entitlement to recover depends. I do not need to develop the matter further, however, because the view I have just expressed is plainly the prevailing view of the Court of Appeal. In Yammine v Kalwy (1979) 2 NSWLR 151, Reynolds JA dealt with a submission similar to the one here made that there was no evidence of what the respondent plaintiff might be able to earn in his injured state so that there was no material upon which the judge could quantify any loss of capacity. Nominal damages only were said to be recoverable. His Honour said (at 155):

[413]

244 Dr Minsker, Professor Mastaglia and Professor Harper were the most pessimistic of the medical experts in relation to the respondent's prognosis and her capacity to resume her pre-accident employment. Dr Rosenthal was the most optimistic. Dr Salmon's opinions were slightly more optimistic than those of Dr Minsker, Professor Mastaglia and Professor Harper, but they were in general agreement. Dr Salmon managed the treatment of the respondent's pain, and the nature and extent of her pain was the principal impediment to her return to work as a photo laboratory technician. The essence of Dr Salmon's evidence at trial was, relevantly, that the respondent should not be involved in lifting more than 10 kg, she was unfit to return to her pre-accident occupation and that unfitness would continue for the foreseeable future, but her prognosis was for gradual improvement over time if she maintained appropriate self-management strategies. The agreed weights of the objects in the photo laboratory indicates that the weight of a magazine with a full paper roll is 15.2 kg. The respondent gave evidence that it would be necessary, in the course of her duties, to lift a magazine with a full paper roll and install it in the machine, sometimes at waist height and sometimes at head height, depending on the type of machine. Although, in general, I prefer Dr Salmon's evidence (which is supported substantially by the evidence of Dr Minsker, Professor Mastaglia and Professor Harper), his opinions as to the respondent's physical capacity and prognosis were affected, to some degree, by the impact of her family responsibilities with respect to her disabled children. I consider that the respondent's physical capacity to work (that is, not taking into account her family commitments) and prognosis are more favourable than Dr Salmon indicated, but less favourable than Dr Rosenthal suggested. I find that the respondent had some very limited capacity to work after May 2003, which capacity was likely to increase over time.

[460]

There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'.

If the resulting amount on the scale so conceived is $15,000 or less, no damages are to be awarded by reason of s 79(4). ... The only criterion for the apportionment prescribed is the comparison of the severity of the non-economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in 'a most extreme case'. The statutory maximum may only be awarded in the latter case. The judge must then assign the case as found somewhere along the resulting scale.

...

It is likely that, over time, experience will develop in assigning cases on the scale, just as earlier it did in the apportionment required for contributory negligence. But each case will necessarily depend upon its own facts. At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case' (440 - 441).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (527 paragraphs)

INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- WEATHERALL [2007] WASCA 264 (4 December 2007)

Report dated 13 February 1999 (to the appellant)

Reports dated 17 July 1999 and 16 October 1999 (to the appellant)

Reports dated 19 February 2000 and 21 March 2000 (to the appellant)

Report dated 28 June 2000 (to the respondent's solicitors)

Report dated 17 March 2005 (to the respondent's solicitors)

Report dated 12 March 2001 (to the respondent's solicitors) and his related evidence

Report dated 15 March 2002 (to the respondent's solicitors) and his related evidence

Report dated 5 April 2002 (to the respondent's solicitors) and his related evidence

Report dated 22 March 2005 (to the respondent's solicitors) and his related evidence

Report dated 5 June 2002 (to Dr Minsker) and his related evidence

Report dated 13 May 2003 (to Dr Minsker) and his related evidence

Report dated 10 June 2003 (to Dr Minsker) and his related evidence

Report dated 6 April 2004 (to Dr Minsker) and his related evidence

Report dated 10 March 2005 (to Dr Minsker) and his related evidence

Stephanie Jean Martin (ts 236-241) and her related evidence

Report dated 24 August 2004 (to the respondent's solicitors) and his related evidence

Christopher Gerard Semmens (ts 273 - 278)

Report dated 6 July 2001 (to Dr Geoffrey Gee) and his related evidence

Nicholas Constantine Anastas (ts 290-303)

Report dated 6 November 2000 (to the appellant)

Report dated 19 November 2001 (to the appellant)

Report dated 21 February 2005 (to the appellant's solicitors)

Report dated 10 August 2001 (to the appellant)

Report dated 5 September 2002 (to the appellant's solicitors) and his related evidence

Report dated 24 February 2005 (to the appellant's solicitors)

Legislation Cited (4)

Cases Cited (20)