48 These were the figures which were relevant to the pre-trial assessment of loss, being from the accident in June 2000 until June 2005. For this period, no reasoned explanation was given by his Honour for the calculation of past economic loss, because the figure was agreed. Nevertheless an assessment of pre-accident earning capacity is undoubtedly relevant in the calculation of future economic loss. The difficulty in making that assessment is that the year ending June 2000, which appears to have been the year in which he said he was earning $1,000-$1,500 per week, was the year preceding the Sydney Olympic Games, when he stated he was working on "the Australian Stadium". In the year before that, being the year ending June 1999, he broke his leg and suffered a significant reduction in earnings. His taxable income in that year was $47,000, giving a net figure of about $34,000. The previous year, ending 30 June 1998, his taxable income was $57,415.
49 On these figures, even in the years ending 2002 and 2003, his net income was, on average, about $5,000 below that earned in 1998 and 2000. However, his group certificate for the year ending 30 June 2004 indicated gross payments of $74,618. Assuming deductions in the order of $15,000, which would have been in line with previous years, he would have had a taxable income in the vicinity of $60,000.
50 The appellant called the proprietor of FS Cranes, Mr Farrier. This was the firm that had employed him between June 2002 and November 2004. Mr Farrier confirmed that he was aware from the outset that the appellant had a disability stemming from the instant workplace injury. He was told that this affected his capacity to lift and climb. Mr Farrier described work as a crane driver as
… a sort of multi-tasked job, the same as a dogman. Probably obviously when we're sitting down operating, he would be expected to get out and sometimes give the dogman a hand, if there was a bit of push or shove needed on the job, like placing timbers under a load or positioning a load or getting a load prepared to be lifted with the lifting chains or timbers or packers up to the different points on the load.
51 Mr Farrier had been happy to employ the appellant whom he described as a very good crane operator. He said that the appellant had left his employ by mutual agreement and that he would be prepared to take the appellant back "with a little bit of reservation" (Black 66). He offered two bases for this reservation. The first related to the limitations disclosed prior to employment. These "mucked us up a little bit" (Black 62). Secondly, there were times when the appellant's demeanour changed and he became "aggro or short", something that Mr Farrier put down to the appellant being in pain (Black 63). Other evidence from the appellant, his wife and Mr Didovich, confirmed that the pain and frustration stemming from the injuries had affected the appellant's ability to cope.
52 What emerged from Mr Farrier's evidence is that the appellant's skill as an operator of smaller cranes is offset to a degree by some touchiness or unreliability that could affect customer relations (Black 63P); and that his incapacity to switch to the dogman/rigger role was something of a disadvantage. It was Mr Farrier's practice to pay his rigger/dogman the same rate as his crane operators because (Black 64-5):
I expect to be able to interchange, I try and employ people now that can do both jobs. It's no good me having a driver that can't dog or a dogman who can't drive.
53 The trial judge did not refer to Mr Farrier's evidence as regards economic loss.
54 Mr Didovich had worked as a crane driver or rigger for approximately 20 years. He started off "like most people in the smaller range of equipment but I showed quite a talent and was soon moved up into a higher bigger crane area" (Black 85). For the last ten years he had been driving large cranes.
55 Mr Didovich said that the rate of pay varied with the size of the crane given that there were extra responsibilities involved with bigger machines (Black 87). Asked how the rate of pay of a rigger compared to that of a driver, he said (Black 88):
The new EVA agreement that's in the industry, drivers and dogman are paid on their skill level and on their experience and their years in the industry. They can be on par if you have a good crane crew which is ample experience with the driver's rate of pay.
56 Mr Didovich gave evidence on 20 July 2005. He said that in the "last financial year" he "did 124,000 before tax". He later agreed that there were substantial expenses to be deducted (Black 96). Extrapolation from these figures produced the $600 net per week suggested at trial as the upper limit of the appellant's possible loss.
57 Mr Didovich said that in the year to 30 June 2005 he averaged 60-70 hours a week, a figure that included a huge amount of overtime.
58 What his Honour said on this topic was (Red 51):
I do not accept that there is a valid comparison between the plaintiff and Mr Didovich because Mr Didovich has worked much longer hours and there is no evidence that the plaintiff worked such hours on a regular basis before the accident. Secondly, the plaintiff's income tax returns, which are in evidence and which I have referred to above, demonstrate to my mind that the plaintiff has not suffered the losses urged upon the Court by his counsel, but it was agreed by the defendant that the plaintiff had suffered a loss.
59 The appellant pressed the following grounds of appeal on this topic:
5. The trial judge's findings on future economic loss were manifestly inadequate.
9. The trial judge erred in finding that the appellant would not have worked the hours of overtime of the comparable worker when the appellant's evidence was that he would have worked such hours and the proven facts were that he was actually working such hours at the time of trial.
10. That the trial judge erred in finding that the hours of overtime worked by the appellant prior to the accident were determinative of the overtime he would have worked following the accident when such was proven not to be the case.
60 I read ground 5 as asserting inadequacy of reasons.
61 The appellant submits that the judge erred in giving such significance to the pre-accident working hours and income. It was always likely that the appellant would mature, marry and start a family (as occurred after the accident). Financial problems had been a cause of stress within the marriage. Accordingly it was probable that he would, uninjured, have endeavoured to maximise his earnings, aspiring to the longer hours and better paid work of a large crane driver similar to Mr Didovich.
62 I agree with this criticism of his Honour's reasoning. The appellant may not necessarily have risen to Mr Didovich's heights of earning capacity. But it was erroneous to reject any comparison on the basis of the appellant's pre-accident work pattern or his post-accident tax returns.
63 The appellant was aged 29 when injured and had only been working with cranes for seven years. Mr Didovich had been a crane driver for almost 20 years. I would accept the appellant's submission that it was probable that, uninjured, he would have moved towards the type and hours of work engaged in by Mr Didovich. The assessment of both Mr Farrier and Mr Didovich was that the appellant was skilled at his job as a crane driver.
64 The evidence showed that the appellant's incapacity to work as a rigger/dogman impacted negatively upon his capacity both to obtain and retain employment as a driver of smaller cranes as well as his capacity to obtain employment as a driver of large cranes. Notwithstanding the appellant's assertion that he wanted to stay as a rigger/dogman, I think it probable that, uninjured, he would have sought to follow Mr Didovich's career path as he grew older. It was not suggested that his feeling of claustrophobia was a serious medical problem. Since the accident the appellant has married and has commenced a family, a development that must always have been reasonably likely to occur. I accept the submission of Ms Norton SC that financial pressures alone would have moved the appellant to seek the higher remuneration (and available overtime) associated with the type of work that Mr Didovich was doing.
65 The appellant therefore contends for lost earnings to be calculated by reference to a weekly loss somewhere between the $250 per week of average pre-trial loss and $600 per week being earned by Mr Didovich in 2005. He submits, correctly, that merely because his earnings increased after the accident does not negate a finding of substantial loss of future earning capacity based on even higher earnings that would have occurred but for the tort.
66 The higher end of the range should be discounted significantly because of the greater experience of Mr Didovich. In addition, some allowance must be made for the trial judge's finding that the appellant exaggerated his disabilities. On the other hand, his Honour accepted not only "a limitation on the plaintiff's ability to drive bigger cranes (and therefore not earn as much)" but also that "an allowance ought be made for the fact that the plaintiff may not be able to work for 31 years".
67 These matters point to two factors indicative of a widening gap between what the appellant would have earned uninjured and what he will be capable of earning in the future.
68 First, there is the likely deterioration in the condition of the neck, back and right shoulder over the years, according to Dr Ellis' prognosis (above). This points to a cloud over the appellant's ability to continue his current (post-accident) working regime over the balance of a "normal" working life for a man aged almost 35 at the date of judgment in the court below.
69 Secondly, allowance should be made for the fact that, had he not been injured, the appellant would (over time) have edged towards the higher earning league of Mr Didovich. Mr Didovich is not a comparable earner at present, but it is fallacious to make no allowance in light of his evidence about the higher earnings of the more experienced crane operator and the evidence about the appellant's general aptitude, pre-accident.
70 These two matters are appropriately addressed by increasing the weekly loss component beyond the level adopted by the primary judge for past economic loss. I propose doing this by calculating further economic loss and attendant superannuation by reference to a flat weekly figure of $350 per week representing loss of earning capacity. In adopting this comparatively conservative figure I am recognising, among other things, that the anticipated movement into a higher earning range would have occurred in the future and progressively, not all at once.
71 Taking these factors into account I would vary the judge's award for future economic loss and attendant superannuation loss by calculating the award in the conventional manner based on a loss of $350 per week instead of $100 per week chosen by the judge. I do not overlook the respondent's request for a new trial and I acknowledge that the level of the increased award is struck impressionistically. This is inevitable given that we are dealing with a hypothetical situation in which the Court is struggling to measure the economic impact in the future of the accident-induced deficit upon a young man able to work full time, yet at a level significantly below his maximum earning capacity. There is also the likelihood of increasing disability as the years go by.
72 The parties requested the Court to defer entry of judgment if minded to uphold the appeal. Calculations would in that event be required having regard to the terms of s151Z of the Workers Compensation Act 1987 and s19 of the Civil Liability Act 2002 and the need to apply the appropriate section depending on the outcome of the appeal. Mr King SC and Mr M Robinson together represented all three respondents. I am content to accede to this request.
73 Costs should follow the event in this Court, although the respondent is entitled, if qualified, to a certificate under the Suitors' Fund Act 1951.
74 I therefore propose that the parties be directed to file draft orders to give effect to these reasons. An agreed draft should be filed within 7 days, failing which each party is to file, within a further 7 days, its proposed orders accompanied by submissions as to the points of difference. The matter will be disposed of on the papers if the Court considers it appropriate to do so.
75 BEAZLEY JA: I agree with Mason P.
76 BASTEN JA: I agree with all aspects of the President's reasons for judgment other than the adoption of an award based on a loss of $350 per week: [71] above. That constitutes approximately 35% of the Appellant's net earnings at the time of trial. The evidence does not demonstrate, in my view, a likely diminution of earning capacity at that level. I would have favoured a calculation based on a figure of $250 per week. The matter is, however, largely one of impression and as this is a minority view, no detailed explanation for that conclusion is necessary.
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