Mr Karabay's case at trial
24As against Mr Carr, in view of his admission of liability, the case focused on the claim for damages in respect of the lost cause of action. For this purpose it was common ground that the notional trial date (that is the date the trial would have taken place had Mr Carr not breached his duty of care) was November 2004.
25As against Mr Kramer, the case advanced by Mr Karabay at trial was that Mr Kramer had failed to act in accordance with counsel's advice not to delay filing the motion until the matter was ready for trial and had thereby fallen below the standards of a reasonably competent solicitor, according to expert evidence said to have been given by Mr Trainor, a solicitor called in Mr Karabay's case.
26In his opening at trial, counsel for Mr Karabay stated that the critical issue was "that Mr Karabay's wasting leg and his injury resulted in him never being able to fly a multi-engine aircraft" (Black 17, lines 11-12). This remained the position during the trial, as appears from the following exchange during closing argument:
"HIS HONOUR: ... You're really saying because of his medical condition he was never going to fly a multiengine aircraft.
STEPHENS: That's true. Exactly." (Black 248, line 49-249, line 3)
27Mr Karabay's case was that he lost the ability to further his commercial flying career as an airline pilot due to the injury. He sought to make out a case that, but for the injury, he would have obtained employment flying small aircraft in regional Australia until he was able to achieve the necessary hours for him to be suitably qualified for, and to be employed in, a position of first officer with either Qantas or Virgin Blue by 1 July 2002, with promotion to captain by 1 July 2006. In support of this claim he relied upon expert evidence from Mr Chesterfield, certain medical reports (including reports of Dr Maclarn), and an accounting report from Mr David Williams.
28Mr Chesterfield provided a report concerning Mr Karabay's prospects of gaining employment as an airline pilot in the position of first officer with a commercial airline (Blue 708-713). This evidence was later qualified in cross-examination when Mr Karabay's incorrect log-book entry for flying hours in Turkey was drawn to Mr Chesterfield's attention (Black 30, line 13 - 31, line 13). Mr Chesterfield also expressed the opinion that Mr Karabay could possibly gain employment as a commercial pilot in a single engine aeroplane operation. He explained that this was typically restricted to charter organisations offering sightseeing flights and such a pilot could reasonably expect a salary of about $20,000 to $30,000 per year. However, Mr Chesterfield qualified this estimate, noting that many of these operations are seasonal and may not offer full time employment.
29Dr Maclarn expressed the opinion in his report of 27 October 2005 that the deterioration in Mr Karabay's right foot since the accident on 21 July 1999 had severely restricted his ability to develop a career in professional aviation flying multi-engine aeroplanes, and that he was fit for single engine operations only (Blue 666.16-666.17). In a subsequent report dated 23 May 2009 (Blue 693-706), Dr Maclarn said that as at the notional trial date of November 2004:
"... Your client at this point in time and at the time of examination [being a reference to his last medical examination in September 2003], was planning to be flying single engine aeroplanes whilst he sought further employment opportunities. Flying a single engine aeroplane does not require the strength in a leg, ankle and foot to maintain directional control in the event of an engine failure.
... Therefore, despite his injury, and based on the above he would have been issued an unrestricted Class 1 medical certificate." (Blue 693T-694E) [emphasis added]
30Dr Maclarn contrasted Mr Karabay's fitness to fly single engine aircraft with his fitness to fly multi-engine aircraft. In respect of the latter he said:
"In the case of your client nominating operating aeroplanes of above 5700kg maximum take-off weight, he would be required to hold an Airline Transport Licence for which your client had not reached the prerequisite 1500 hrs of aeronautical experience, at the time of medical. [Nonetheless], the nomination of this class of aeroplane, of which all the common types are multi-engined, would invoke an assessment of his condition with respect to the certification requirements defined in my previous report.
... part of his medical assessment would have been a simulator ride assessing his ability to control an aeroplane which was having a left engine failure. At the notional trial date of November 2004, and based on the evidence presented, your client would fail a Class 1 medical examination for this type of operation. As a result he would be unemployable in the airline environment." (Blue 694J-N) [emphasis added]
31Mr Williams provided a report on 28 April 2011 (Blue 1048-1089) in which he assessed Mr Karabay's loss of past and future earning capacity and superannuation benefits under the two scenarios referred to above, which assumed employment as a first officer, and later as captain, with either Qantas (scenario 1) or Virgin Blue (scenario 2). Mr Williams calculated figures for Mr Karabay's past economic loss of $168,412.02 (scenario 1) and $174,922.42 (scenario 2), and future economic loss of $1,567,110.02 (scenario 1) and $1,571,942.14 (scenario 2).
32Mr Williams also provided a supplementary report dated 19 August 2011 (Blue 1091-1125) in answer to a report of Mr Ronald Bartsch dated 10 June 2011 which was served on behalf of the defendants. Mr Williams recorded, in [1.4] of his supplementary report, that he had been instructed to review Mr Bartsch's report and prepare further and additional calculations based on the opinions expressed in [29] of Mr Bartsch's report as to what Mr Karabay could have earned in the aviation industry (Blue 1095K-L). This was a reference to Mr Bartsch's opinions in relation to Mr Karabay's residual earning capacity flying single engine aircraft. It seems that Mr Williams' supplementary report was provided to the defendant's counsel on the morning of the first day of trial (Black 27F). In his opening at trial counsel for Mr Karabay explained the relevance of Mr Williams' supplementary report as follows:
"... His supplementary report is based on the residual earning capacity, that is we said that we had very little residual earning capacity. There is evidence that has been put on by my friend which indicates a higher residual earning capacity. Mr Williams has done a calculation reflecting that higher earning capacity to give your Honour an idea of the range between the two. That's the purpose of the supplementary report." (Black 27, lines 38-44) [emphasis added]
33Mr Williams' original and supplementary reports were admitted into evidence on the third day of the trial (Black 143, lines 34-35), notwithstanding (in the case of the supplementary report) the successful objection by Mr Karabay to the tender of Mr Bartsch's report (Black 185, lines 30-34).
34In oral closing submissions at the trial, counsel for Mr Karabay stated:
"So that your Honour can come safely to the conclusion that the calculation of economic loss should have proceeded on the basis that the injury had precluded him from a multiengine endorsement for his licence, not that he couldn't fly and wasn't flying single-engine aircraft, but that the pathway to being an airline pilot was closed to him. As a consequence, his future economic loss could be calculated as a matter of certainty along the lines of what has been calculated by Mr Williams." (Black 248, lines 23-29) [emphasis added]
This was a reference to Mr Williams' original report, not his supplementary report.
35At the conclusion of the trial, the primary judge gave directions for the filing and service of further written submissions. In written submissions dated 5 September 2011 (Black 253-272), Mr Karabay advanced the contention, for the first time, that if his claim that he could become an airline pilot was rejected, it was open to his Honour to accept Mr Williams' supplementary report (based on salary figure estimates provided by Mr Bartsch's report) in relation to the earning capacity of charter or general aviation pilots. (This submission overlooked the fact that the Bartsch report was not in evidence.) It was contended that, but for the injury, Mr Karabay would have been well able to fly charter operations in a single engine aircraft up to 800 hours a year, and earn the sums calculated in Mr Williams' supplementary report (Black 265E-K) or the amount paid to Mr Slater, whose evidence included a salary of $26,000 per annum in 1996 when employed by SB Air (Blue 1045H; Black 265G). Related to this submission was the contention that Mr Karabay was not qualified to fly single engine aircraft at the date of the notional trial (Black 260E and T). This contention was inconsistent with Mr Karabay's position in oral closing submissions as referred to at [34] above.
36Perhaps surprisingly, no objection was taken by Mr Carr and Mr Kramer, in their reply submissions dated 8 September 2011 (Black 294-303), to this significant change in Mr Karabay's case. Rather, the submission was made that no use could be made of Mr Williams' supplementary report because the primary material upon which it was expressed to be based was never put into evidence (Black 297R-S).
37The above summary of the economic loss case which Mr Karabay advanced at trial is relevant to the question of whether he is impermissibly seeking to run a new case on appeal. This question is addressed below at [74]-[77].