Mansini v Martin [1998] QCA 222

Court of Appeal (Qld)|1998-08-07|Before: Jersey CJ, McPherson JA, Chesterman J, Mr J, Pherson J

I have had the advantage of reading the reasons for judgment of Chesterman J.

I agree with his Honour's reasons and with the orders he proposes.

For the reasons, with which I agree, given by Chesterman J., I consider that the amount for which judgment was given in favour of the plaintiff should be reduced to $427,056.00.

The plaintiff was 24 years old when he was injured on 23 December, 1988 and 34 when judgment was given. At the time of injury he was employed as a landscape gardener earning a modest income. His only injury relevant to the assessment of damages under challenge was to his right shoulder which resulted in loss of power on abduction. Dr Blue, orthopaedic surgeon, whose evidence the trial judge appears to have accepted, said in a report of 21 May, 1993 (Exhibit 9) that the shoulder injury "resulted in a disability equivalent to 10 per cent loss of function of his right upper limb". Dr Blue, in the same report, described the disability as "fairly minimal" but one which significantly interfered with his performance as a professional squash player. In a subsequent report of 31 May, 1996 (Exhibit 11) Dr Blue expressed the opinion that the respondent's injury "to his right shoulder would significantly affect his ability to work as a landscaper. (It) would cause him problems with activities such as repetitive lifting above shoulder level or using landscaping tools requiring movement at above shoulder level".

The respondent is a member of an exceptionally talented sporting family. Two of his brothers and one of his sisters were world champion squash players who were able to make a substantial living from that success. The respondent put his claim for damages on the basis that, but for his injury, he too would have succeeded in becoming the best, or close to the best, squash player in the world and that he has been deprived of the financial rewards that can be garnered from such success.

The trial judge accepted this claim and assessed damages for the lost chance.

The respondent further claimed that following his achievement of world champion squash playing status he would have had a successful career as a coach of outstanding squash players and he has been deprived of income from that activity. The trial judge accepted this claim, too, and allowed damages for that lost chance. The respondent then claimed that, following his coaching career, he would have turned to some other pursuit that would have earned him at least an amount equivalent to average male income in Australia. He invited comparison between that average income and what he actually earns as a landscaper and asked the trial judge to award damages based on the difference. The trial judge accepted this claim and assessed damages for the lost chance of achieving an income equal to average male earnings.

The appellant, as I understood his argument, does not dispute the validity of the trial judge's approach to the assessment of damages for the lost chance of a playing and a coaching career but does challenge the value ascribed to each of those lost chances. In relation to the third aspect of economic loss the appellant does challenge the validity of an assessment based upon a comparison between average male earnings and the respondent's actual earnings as landscaper for the years 1 July, 1989 to 30 June, 1997.

An appellate court is justified in interfering with an award of damages for personal injury only where the judge has acted on a wrong principle of law, or has mistaken the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. See Miller v. Jennings [1954] HCA 65; (1954) 92 CLR 190 at 196. Where an error in the assessment of a component in an award of damages is shown to be wrong an appellate court will not interfere unless the mistake in that component has a substantial effect upon the award as a whole. See Elford v. FAI General Insurance Co Limited [1994] 1 QdR 258 at 264-5.

The assessment which the trial judge was called upon to make was a difficult one. The respondent sought to have his damages assessed on the basis that the appellant's negligence deprived him of income he would have earned as a "world best" sportsman. He did not enjoy that status when injured. The trial judge correctly, with respect, approached the assessment on the basis that it required a judgment as to the degree of likelihood that that hypothesis - sporting success at world level - would have occurred and the extent of the financial reward that would have followed such success. Her Honour referred to Malec v. JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643 in the joint judgment of Deane, Gaudron and McHugh JJ:

"But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.0 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded".

Having commented upon the evidence her Honour said:

"I assess the probability that the plaintiff would have achieved success as a world ranked international squash player at 60 per cent. The evidence suggested that the playing career of a professional squash player is approximately 10 years after which a further five years as a professional squash coach could be a career progression. This latter figure is quite variable...Had the plaintiff achieved the success that he contends for then I think the evidence supports a conclusion that he had very good prospects of taking up a coaching position which I would assess at 80 per cent.

On behalf of the plaintiff several options for the future were prepared by Mr Cooper a chartered accountant and partner with Pannell Kerr Forster. All are based on the assumption of a 10 year playing career followed by a further five years as a professional squash coach".

The trial judge then referred to "Exhibit 12A schedule 1 page 1 as updated" in which was found the figure for past (i.e. between injury and trial) loss of income as a squash player. That figure was said to be $289,468.00. Sixty per cent of that figure was allowed as the component of damages for past economic loss (ignoring special damages). This came to $173,681.00.

Something must be said about Exhibits 12 and 12A from which the trial judge has taken the monetary amounts representing economic loss suffered by the respondent.

The two exhibits, 12 and 12A were prepared by Mr Cooper, a highly regarded chartered accountant whose expert testimony is frequently of assistance to the court. The second exhibit is a corrected version of the first, some errors of detail having been detected in Exhibit 12 during Mr Cooper's cross-examination. The exhibits consist of a number of schedules of figures each schedule depending for its content upon particular hypothesis. For example appendices 8 to 14 inclusive calculate the loss the respondent suffered on the assumption that he would have earned income as a squash player in each of the years 1990 to 1999 and his income from that source would have been the exact average of the income earned by his two successful brothers, Rodney and Brett, for the years 1990 to 1997. Rodney Martin did not play after 1994 because of injury. His "income" for the years 1995-1998 set out in the schedule is an extrapolation of his income earned in earlier years. No actual incomes were, of course, available for the years 1998 and 1999. The exhibit assumes that for 1998 the respondent would have earned the average between what Rodney might have earned in 1998 and what Brett earned in 1997. The "loss" for 1999 is assumed to be exactly the same as for 1998.

The same appendices assume that, having played at the top level for 10 years, the respondent would have earned precise amounts as a coach. The amounts are based upon the earnings of one Kelvin Smith who took up coaching after a relatively successful playing career. To arrive at this "loss" Mr Cooper adjusted the figures because the respondent's lost earnings as a coach will occur in years subsequent to Mr Smith's actual earnings. Mr Cooper therefore assumed that inflation would remain exactly the same in the future as it has in the recent past and adjusted Mr Smith's earnings for the inflationary effect on the value of money to arrive at a figure representing income that would have been earned in the future from coaching. Because Mr Smith could provide figures for only four years and it was assumed that the respondent would coach for five years Mr Cooper assumed that the figure representing the respondent's "loss" for the fifth year should be exactly the same as for the fourth year.

Appendices 15 to 20 perform the same enquiry but on the assumption that the respondent would have earned in the years 1990 to 1998 exactly the amount his most successful brother earned as a squash player and that in the year 1999 he would have earned exactly the same as the year before. As with Mr Smith's income, that for both Rodney and Brett Martin was adjusted for inflation at the assumed rate to convert their actual historical earnings into an income figure for the years in respect of which it was claimed the respondent would have earned as a world-class squash player.

Belatedly, a series of calculations was performed on the basis that the respondent's earnings would have been the same as Brett Martin's. He, it will be remembered, was substantially less successful financially than Rodney Martin. Between the years 1987 and 1994 Brett Martin earned $272,418.00. In the years 1986 to 1994 Rodney Martin earned $714,099.00. The trial judge took as the appropriate figure for pre-trial lost earning as a squash player an amount calculated on the first hypothesis I have described, that the respondent would have earned the average of the amounts earned by his brothers.

Enough has been said, I hope, to demonstrate that the very precise figures appearing in Mr Cooper's schedules are nothing more than indications of possibilities. The only precision is in the arithmetical process by which the numbers are produced. The figures are the product of assumption built upon assumption. Unless this is borne steadily in mind the exhibits may tend to beguile the reader into thinking they offer an assurance of certainty which they do not.

The trial judge does not refer to the assumptions which underlie Exhibits 12 and 12A. Her Honour seems to have accepted that the figure appearing in Exhibit 12A schedule 1 was the amount the respondent would have earned had he succeeded in world championship squash, over and above his actual earnings as a landscaper. The trial judge awarded 60 per cent of this precise figure.

The respondent points to an error. The figure in the document referred to by the trial judge is in fact $303,998.00 not the figure of $289,468.00 which appears in the reasons for judgment. The provenance of this latter figure is unascertainable from the evidence.

Although the appellant complains about the award for past economic loss he does not seek to make anything of the matters I have just discussed. He submits that the chance that the respondent would have succeeded in becoming a world class player was very much less than 60 per cent but he does not take issue with the acceptance by the trial judge of the precise figures advanced by Mr Cooper.

It seems to me that the process of assessment described by the High Court in Malec involves two separate inquiries. What is being awarded is the value of the lost chance. This involves assessing:

(a) the extent or degree of probability that the chance, the hypothesis, would have occurred in fact; and

(b) the financial effects of the hypothesis occurring.

Both inquiries involve an evaluative process. In most cases, including the present, a great deal of uncertainty will surround each of them. The assessment of damages will continue to be an art rather than a science. It will often not be possible in the uncertain state of affairs in which damages for personal injuries fall to be awarded to make an assessment with the degree of precision mentioned in Malec. Although the High Court apparently regarded it as possible to assess the degree of likelihood of an event occurring as being calculable to an accuracy of 1 per cent I think this is, with great respect, unrealistic. The best one can do is to make general assessments.

The remarks of the minority, Brennan and Dawson JJ in Malec at 640:

"We think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation"

appear to have been approved in the joint judgment of Dawson, Toohey, Gaudron and Gummow JJ in Wynn v. New South Wales Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 499.

The appellant's submissions did not, as I say, include a complaint that the trial judge had accepted Mr Cooper's figures in Exhibit 12A without adjustment or qualification. This evidence relates to the second of the inquiries I have identified. The submissions focussed on the trial judge's choice of 60 per cent as the degree of probability that the respondent would achieve sporting greatness.

"The (respondent's) parents owned and managed squash courts in Sydney. The whole family were involved in the enterprise and the children played squash from very young ages. Brett Martin was born on 23 January, 1963 and at the time of trial was ranked number 3 in the world as a squash player and had won many important tournaments. Rodney Martin was born on 17 October, 1965 and was world open champion in 1991, runner-up for three years in the British Open as well as winning numerous international tournaments. Michelle Martin was born 27 April, 1967 and was number 1 in the world in women's squash.

The (respondent) played squash on a daily basis as a child, had success in New South Wales as a teenager and won a number of state age championships...The family moved to Queensland in 1980 when the plaintiff was 16 years. He has just finished school. He looked for an apprenticeship in a number of trades unsuccessfully and eventually obtained work as a landscape gardener...After several years the (respondent) returned to Sydney and work as a bricklayer's assistant for about two years before returning to Queensland in about 1986. Whilst the respondent was in Sydney he played regular social squash.

On his return to Brisbane he worked for the (appellant) as a landscaper and started playing squash more seriously. He was approached by Mr Amos in 1987 who recommended that the (respondent) start practising seriously because he had the ability to play as well as Rodney and Michelle and Martin whom he then coached...Mr Amos was persuaded that the (respondent) had the talent to attain a world squash ranking and set him a program of intense training with an eye to participating in the European championships in 1989. The (respondent) was keen to do well.

Mr Amos reviewed the (respondent's) progress after six months and found him to be better than expected. He...anticipated that in his first year participation in the European championships he would not do particularly well but in the second year he would make the first 10 and expected that he would win the British Open in his third year of competition playing in Europe.

The (appellant) contends that since the (respondent) had not made his mark by being ranked in Australia or even Queensland before his injury he was outside the accepted path to international success and had left his "run" too late.

Mr Amos was enthusiastic about the (respondent's) future...I see no good reason not to accept Mr Amos' opinion of the (respondent's) potential".

Her Honour then referred to Malec and made the finding to which I have referred as to the degree of probability that the respondent would achieve world championship status.

The appellant's arguments are a rehearsal of those addressed to the trial judge. It is said that her Honour failed to give sufficient weight to the evidence which showed that the respondent's path to the top, should he have reached that pinnacle, would have been untrodden. All of the several Australians who have become world champion squash players had played in and won national competitions before venturing overseas and winning larger tournaments. There is a system of ranking for junior as well as senior players who are listed according to their success in state and national championships. The respondent had been the New South Wales under 13 and under 15 squash champion but had forsaken squash as a past-time when his family moved to Queensland. For about eight years, from the age of 16 to the age of 24, the respondent did not play squash seriously. He was an occasional social player. He did not have an interest in or commitment to the game. He did not attain ranking as a squash player in Australia. He did not win, or even contest, any state or national titles in those years.

Twenty-four is a rather late age at which to commence a career as a world-class squash player. It is not an impossible starting age as the career of Mr Hunt shows but his career followed the orthodox pattern of tournament success and high rankings in Australia before moving overseas.

The evidence did not identify any person who had embarked upon an international squash career at the age of 24, and succeeded, without having achieved tournament success in Australia over a number of years. The evidence indicated, not surprisingly, that achievement of high world ranking comes only to those who are dedicated to the sport as well as having the necessary physical and psychological attributes to be an outstanding competitive athlete in world competition.

The appellant's submissions, in essence, are that there were insufficient indications in the respondent's history to allow the trial judge to allow more than a very small degree of probability that the respondent might have achieved outstanding success. His absence from competitive squash in the critical years between 16 and 24 make it impossible, so the appellant argues, for the court to have any confidence that he would have become part of the small elite. The appellant points out, again uncontroversially, that many talented and dedicated sportsmen do not achieve ultimate success. Because the competition is fierce and the prizes available to the best are eagerly contended for most fail to make it. The British Open is the premier world squash championship. There can only be one winner each year.

The respondent was completely untried. He was being coached with a view to embarking on playing in the European competitions. Mr Amos had a high opinion of his ability and the likelihood of his success. But, the appellant submits, an assessment of damages has to be based on something more substantial than optimism and hope. Unless there be some foundation of fact for finding that the respondent would have achieved the highest levels in his sport damages should have been assessed on the basis that the probability of the hypothesis occurring was very small indeed.

The appellant points in particular to the evidence of Mr Sturgess, for many years a selector of players for Australian squash teams, that before one could venture a prediction as to the future of a player the player must have demonstrated success in competitive tournaments over a number of years.

The appellant also points to what it submits is the unreality of Mr Amos' opinion, a precis of which appears in the reasons of the trial judge in the passage I have quoted. It might be thought by some that to venture the opinion that a player who had never competed internationally and had not competed nationally for eight years would win the prestigious British Open squash championship in his third year of competition was foolhardy and the opinion not worthy of much credence. Especially when the witness conceded that he was perennially optimistic about the chances of those he coached and often disappointed when players whom he gauged to have enormous potential had not realised it.

The respondent's written submissions refer in detail to matters of evidence which are said to rebut the matters advanced by the appellant to support the conclusion that the assessment of probability of success of 60 per cent is erroneously favourable. The respondent relies particularly upon the evidence of Mr Amos and that of his brothers, Rodney and Brett, who achieved international success and who said they detected in the respondent indications of the characteristics that had carried them to fame.

I do not think there is any point in canvassing in detail the matters advanced.

The arguments addressed to this court concern matters that are peculiarly the provence of a trial judge. Despite the difficulties in doing so a trial judge, in a case like the present, is obliged to make the adjustment referred to in Malec by reference to a judgmental process of determining the degree of likelihood that a hypothesis might be or might have been realised. An appellate court cannot and should not interfere unless it appears the judgment appealed from is infected by a misapprehension of the facts or error of principle. The weight to be given to the evidence, and the influence when assessing weight of a trial judge's assessment of the reliability of witnesses, is fundamental to the fact finding process. The Court of Appeal is not entitled to substitute its views in the absence of demonstrated error. It is not enough that the appellant court might have come to a different answer.

The trial judge's finding of a 60 per cent probability involved a substantial discount from Mr Amos' opinion that the respondent would, as a matter of certainty, achieve world number 1 ranking. The trial judge was entitled to give particular weight to his opinion. He was qualified to express it. He had trained and observed champions. He knew the necessary ingredients for success and could detect them. He had a lifetime of experience and accumulated knowledge which he called upon when giving evidence. He was aware of the matters relied on by the appellant when he formed his opinion. The acceptance of Mr Amos's opinion does not involve an error of principle nor a misapprehension of fact.

The arguments for the appellant were powerful and were persuasively put. The same arguments were put to the trial judge who had the benefit of them when making the assessment of a 60 per cent probability. The appellant has not demonstrated anything more than dissatisfaction that his arguments were not given more weight. I do not think the aspect of the judgment which assessed damages for the lost chance of earnings, as a player, past and future can be disturbed.

Rather different considerations apply to the assessment of damages in respect of future economic loss for the lost chances of earnings as a coach and thereafter. The basis for this assessment was that having completed a successful playing career the respondent would have coached for five years and then done something else for which he would have earned at least average male adult wages. The something else was never identified.

The appellant argues that the evidence did not allow a finding that the respondent would have become a coach. The trial judge found that there was an 80 per cent probability that he would, following his successful playing career. The amount allowed was 48 per cent (60 per cent x 80 per cent) of the figure set out in Exhibit 12A appendix 13 p2 as updated.

The evidence in relation to the prospect that the respondent may have become a successful coach after having retired as a player did not occupy much of the trial. Mr Kelvin Smith was the person whose history formed the basis for the estimate of the value of the lost chance of earning income as a coach. He achieved a ranking of 9 in world competition as a squash player. He competed for five years before working for four years, 1988-1992 as a coach at a squash club in Germany. His role was to train junior players, organise some weekend tournaments and assist in training a club team. As well he played in a domestic German competition. He ran a shop which was attached to the squash court complex where he played and coached.

* Squash coaches can and do coach into their 50's.

* The higher the ranking achieved by a squash player the better his chance of "attaining good prospects of coaching".

* He knew of some players or "a lot of high rank players" who were coaching in Germany, England and the USA.

Mr Amos was just as succinct. When asked "what options are available after the playing?" he said:

"Well with (the respondent) I would work him into coaching because coaching you can coach when you're 70 and it makes no difference".

He also said that he "had this place where (he) virtually had a monopoly on squash coaching in South Africa..." and that he could have assisted the respondent "after he had finished playing in a coaching area".

"Mr Amos had recently been coaching in South Africa and thought that the plaintiff would make a good coach. He had influence which he would have used in his favour".

This finding, with respect, does not accord with the evidence. Mr Amos did not say that the respondent would have made a good coach. As far as I can see no other witness said it either. What Mr Amos did say, further, on the subject of coaching was that very few players, perhaps only four in one hundred, become full time coaches.

The only other evidence pertinent to coaching comes from the respondent and his brother Brett. The respondent said only that he wanted to play squash in Europe for a number of years "and be a coach". Brett Martin said:

"I am not exactly sure, but I would say there is a good chance if I wanted to I could get a reasonably good coaching job with the name we have got...Like the Martin's are pretty well known around the world and I think there would be a good possibility of myself trying to get a job in the States as a professional coach".

The finding that there was an 80 per cent probability that the respondent would have coached for five years following a successful playing career was not, in my view, reasonably open on this evidence. The only testimony which approached the point quantitatively would support about a 4 per cent chance of such a hypothesis occurring.

A more fundamental problem with this aspect of the respondent's case is that there is nothing to prevent him seeking employment as a coach and no obvious reason why an award of damages should be made in his favour on the basis that he cannot in the future work as a coach. It is accepted that his injury prevents his performing at the very high level of athleticism which is a pre-requisite for success as a professional sportsman. But there is no evidence that such athleticism is a pre-requisite to being a successful coach. Mr Amos is, indeed, a case in point. Although a good player he did not reach the standard it is contended the respondent would have reached. Nevertheless he was for decades a coach of world repute. It may be that acceptance as a coach would come more quickly to one who had received the accolades given to a world champion but if one had genuine ability as a coach there is no reason to suppose success would not follow. The respondent still has the attraction of the Martin name and a legitimate reason why he had not himself achieved prominence as a player. No attempt was made to establish a diminished level of remuneration between those squash coaches who had achieved world fame and those who had not. The availability of Mr Amos for cross-examination might have made that task unattractive.

Another difficulty emerges in this aspect of the case. Mr Cooper's computation of the lost earnings as a coach is based upon Mr Smith's income earned from his four years' appointment with the German squash club. A substantial part of that income was earned not as remuneration from coaching but as the profit from conducting a shop in the precincts of the squash courts. It was a shop that sold sporting accessories to those attending the courts. Only about a ninth of his total net income came from his personal exertions as a coach. The rest was derived from trading profits. See Exhibit 12 appendix 5 p1.

There is simply no reason why the respondent's injury should prevent him from running a sporting goods shop. There is no warrant for an award of damages predicated upon lost income when the income hypothetically foregone is derived from an occupation from which the respondent is not precluded.

There is a similar problem with respect to the balance of the assessment of damages for future economic loss. The trial judge, relying upon Mr Cooper's schedules, predicted that having coached for five years the respondent would earn income at least equivalent to average male adult wages until he retired at age 60 in the year 2024. The comparison between those average wages and the average of what the respondent actually earned in his landscape gardening business formed the basis of the schedule to which the trial judge referred when awarding $153,444.00 under this head.

The evidence is scant. In Exhibit 12 para 6.5 Mr Cooper said:

"Thus my second calculation of the loss of future income is on the following basis:-

(c) Given Mr Martin's likely high profile as a professional squash player that he would have been able to at least achieve the average weekly earnings of an Australian male. Thus I have used the Australian Bureau of Statistics August 1995 average weekly earnings of an Australian male (Appendix 14) to project Mr Martin's income from 1 July 2004 to his retirement (at either age 60 or age 65).

(d) For all future years I have assumed that Mr Martin's actual landscaping income would be the average of the actual income earned by him in the years 1990 to 1995 inclusive."

"The average adult wage that you took for these calculations, is that the average wage of a man working as a landscape gardener?-- No, no.

It is far higher, isn't it?-- It is far higher but the rationale for that is that if somebody reaches the top in a sport, then they are likely to be more recognised and available for promotional work and other doors open because of who that person is and because of those achievements.

What evidence do you base that on?-- That is just general background. It is that one could have expected - I think reasonably can...

Well, the short answer is you have got no evidence?-- I have got no empirical evidence of that, no."

Mr Cooper agreed that he had not calculated loss based on a comparison between the respondent's actual earnings as a self-employed landscaper and the wages paid to an employed landscape gardener. This exchange occurred:

"And you would agree that those figures would be significantly lower than the average Australian adult male income?-- They would. The difficulty I have with that one, is one, as I say not based on empirical evidence but if somebody reaches the top in a career, one would expect that they might subsequently earn at least the average male wage or adult wage.

That is an assumption based on no evidence?-- It is an assumption. It has to be treated as an assumption without any empirical evidence."

"I accept Mr Cooper's assumption that had the (respondent) engaged in an international squash playing career followed by coaching the chance that he would then have been able to earn an income of at least the average adult male wage until the age of 60 is reasonable".

In my respectful opinion this finding was not open. Mr Cooper's assumption was not evidence. He could advance no facts to support it. It was an inexpert opinion proffered without substantiation. It did not justify a finding that $201,546.00 would be lost as income by the respondent between the years 2004 and 2024. The figure was discounted for the chance that the hypothesis of a successful playing career would not have eventuated and, of course, the present value of that sum, rather than the sum itself was awarded. See Exhibit 12A appendix 13 p2 as updated.

It is not the case that no evidence could be adduced on the point. The record reveals the names of many players, Australians, who achieved success in world squash championships. They were well known to the respondent's family and to Mr Amos. No reason appears why, if Mr Cooper's thesis were correct, evidence could not have been adduced from some or all of these former players to show what they had done after their playing careers and what they earned from doing it.

The other factor in the comparison is just as problematical. Mr Cooper compared adult average male wages with the income actually earned by the respondent from his business. The implicit assumption in Mr Cooper's comparison is that by reason of his injury the respondent has been unable to earn more than he has.

Damages for future economic loss are awarded because a plaintiff's earning capacity has been diminished and that reduced capacity is likely to be productive of actual financial loss in the future. A plaintiff's earnings after an injury may reflect factors other than disability caused by that injury. A plaintiff who can work but does not is an obvious example. The court is to assess the value of the diminished earning capacity as it will manifest itself in actual loss resulting from the injury.

If the comparison is to be made between pre-injury and post injury earnings the second factor in the equation is the amount a plaintiff could earn with the disability rather than the amount actually earned, if there be a difference between the two.

There seems to me to be evidence, which was not debated before the trial judge, that the respondent has an earning capacity considerably greater than his past earnings would demonstrate.

The trial was conducted on 3, 4 and 5 June, 1996. Judgment was given on 28 October, 1997. In the interim financial statements became available in respect of the respondent's earnings for the years ended June, 1996 and June, 1997. These were placed before the trial judge at her Honour's request. Mr Cooper was asked to re-calculate the losses he had projected in the schedules of appendix 12A. This is the "update" to Exhibit 12A referred to in the reasons for judgment. Mr Cooper's re-calculation did not in fact make use of the more recent financial statements. The respondent's average earnings for the years 1989 to 1995 from personal exertion were $7,572.00. The most he earned was $10,361.00 in 1989 and the least was $4,151.00 in 1992. However information which became available for the two years between trial and judgment showed the respondent earning considerably more. In 1996 he earned $14,287.00 and in 1997 $19,563.00. The appellant submits that the more recent figures should be included in the comparison to arrive at an estimate of what the respondent has lost.

The respondent opposes this course relying on a short affidavit sworn 12 June, 1998 and provided to the court on the hearing of the appeal. In essence the respondent says that his earnings for the two years in contention were aberrant because he was given "an unusually higher amount of one off landscaping work by friends and acquaintances". He deposes that his income for the present financial year has dropped back to about $7,000.00.

It is entirely unsatisfactory that this court should have to resolve arguments of this type on such materials. The appellant ought to have had the matter re-listed before the trial judge for further argument on the evidence that had become available in the 17 months following trial. This was a course the trial judge invited. This court should not be asked to embark upon a new assessment of damages based upon materials that have not been the subject of detailed analysis or argument.

This point aside it seems to me that the particular basis of contention between the parties is irrelevant. It does not matter whether the respondent's earnings are destined to return to the lower levels of pre 1996. What the additional figures demonstrate is that the respondent's subdued level of earnings is a consequence, at least in substantial part, of the lack of work available to him as a landscaper. It is not solely a consequence of his shoulder disability. One cannot conclude that the respondent's post accident earning capacity is truly indicated by his actual earnings as a landscaper.

It seems to me the whole basis on which Mr Cooper approached the computation of future economic loss is flawed.

"Shortly after his return the (respondent) commenced his own landscaping business as he was unable to carry out the whole range of heavy tasks associated with landscape gardening such as shaping rocks for walls and mixing concrete all day as well as bricklaying, trowelling, using a crowbar for lengthy periods and using other labour intensive tools over time...I accept that the plaintiff does experience difficulty in carrying out the range of work that a landscape gardener is customarily expected to do of a heavy nature and which might make working for someone else's business difficult. The plaintiff said that he did all the work that he could. Mr Griffin submitted that this implied no physical disability, merely lack of work. That statement needs to be appreciated against his earlier evidence that he had to limit the kind of work that he could take".

The finding that the respondent experiences difficulty in carrying out the full range of work required of a landscaper cannot be disturbed and, with respect, cannot be doubted.

The respondent does not appear to have put before the court any material sufficient to allow a proper assessment to be made of the financial consequence of his handicap. One would have thought that a useful comparison would be between the earnings of the respondent's business and a similar business conducted by someone without disability. An alternative enquiry might have been the cost to the respondent of engaging casual labour to perform the tasks that he cannot undertake. Neither enquiry was undertaken. Instead Mr Cooper's esoteric comparison was commissioned.

For the reasons I have set out I do not think that Exhibits 12 and/or 12A provide any foundation for the assessment of damages for lost future earning capacity.

"The law of course places upon a plaintiff who sues in tort for unliquidated damages the burden of satisfying the tribunal of fact of the damages he has suffered both special and general and of the quantification and money that should be adopted in the sum awarded. That is the legal burden of proof that rests upon him throughout".

See Watts v. Rake (1960) 108 CLR at 159 per Dixon CJ.

The respondent here proved no more than he has a disability of his right arm equivalent to 10 per cent of loss of use of its function which was described by Dr Blue variously as "fairly minimal" but "significantly affecting his ability to work as a landscaper". In particular repetitive lifting above shoulder level or movement above that level is difficult and causes discomfort.

The respondent is not limited to a livelihood as a landscaper though that is his occupation of choice. His disability is not so great as to cause him to seek alternative employment.

The court has to assess damages as best it can from the meagre material available. At the time of judgment the respondent was 34. He is a semi-skilled manual worker with a 10 per cent disability of his right arm. He is disadvantaged in performing some of the tasks required of a landscaper so he foregoes some contracts or performs them more slowly.

Having consulted the quantum notes I would allow the sum of $40,000 by way of damages for future lost earning capacity.

Mr Williams QC who appeared for the respondent pointed out that the assessment of damages contain errors which work adversely to the respondent. The first is the selection of $289,468.00 instead of $303,998.00. The second is that the trial judge discounted future economic loss referable to earnings after a coaching career by 52 per cent instead of 40 per cent. The greater discount reflects the allowance for two contingencies, being first a player and then a coach there being a 60 per cent chance of the first and an 80 per cent chance of the second. But the loss fixed by reference to the difference between adult average wages and the respondent's earnings as a landscaper are predicated only upon the respondent first having been a successful player not as well a coach. Only one factor of discount should have been allowed.

The respondent submits that the award should be notionally adjusted upwards to correct these errors before any downward adjustment is made should the appellant's submissions, or some of them, be accepted.

I would reject this approach. The second error affects only the assessment of future economic loss which was, in my view, erroneous and should be set aside. The approach I have suggested does not depend upon a reconstruction of elaborate hypotheses but a broad assessment of what loss there is likely to be for a semi-skilled man of 34 who suffers a 10 per cent disability of his right arm.

The first error affects a component of the award which should not be disturbed. That component was, in my view, quite generous to the respondent and I would not diminish the reduction in the award which I think should be made to take into account that the trial judge made an arithmetical error against the respondent in assessing that component of the award. Standing as it is, it remains a very substantial award for the lost chance claimed by the respondent.

In my view the component of damages in respect of future lost earning capacity should be reduced from $153,444.00 to $40,000.00. The appeal should be allowed with costs and the judgment varied by reducing the amount of it from $540,500.00 to $427,056.00.

At a glance

Court

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Before

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Judgment (108 paragraphs)

Parties

Cases Cited (3)