Conclusions - The Plaintiff's land dealing and/or development
110 On the basis of the evidence to which I have referred, a number of conclusions seem to me to flow.
111 Firstly, the Plaintiff does have an income earning capacity in the field of land dealing and development. The skill, flair and results the Plaintiff has demonstrated in that field reflect an income earning capacity just as much as did his skill and results on the football field.
112 Secondly, he has had, and has employed, that capacity throughout the period since 1996.
113 Thirdly, I have no doubt that, uninjured, the Plaintiff would have continued to pursue an activity of land purchase and development.
114 Fourthly, since his injury he has employed that capacity far more than he did beforehand. Probably that fact is at least in part due to the fact he has had more time available and no football demands but the increased employment of the capacity certainly was contributed to by the consequences of his injury, and the need to replace his football income. Included in the factors that lead me to this conclusion are the Plaintiff's evidence to the effect that, post injury, he was trying harder to make money in the land dealing and development area. The increase in frequency and extent of activity is probably in part a reflection of this.
115 Fifthly, the use since his injury of that capacity has been very profitable. The profits flowing from, or contributed to by, it have or will include amounts in the order of:-
(i) The Triangle Arcade - $500,000
(i) The Watermark - on the Plaintiff's estimate, something in the order of $10M in development profits.
(ii) Northtown on the Mall - in the order of $5M or more
(iii) The Seaview Hotel and activities associated with it - of, or in excess of, $2.5M.
116 Even if these figures do not reflect accurately all of the costs that have been incurred in relation to those properties, the figures are sufficiently large that it is impossible to conclude other than as stated in the first sentence of the immediately preceding paragraph.
117 Sixthly, some of the profits derived since the Plaintiffs' injury, particularly some of those derived from properties other than those just mentioned, cannot be said to be the result of his injury. I include in these the profits derived from the realisation of properties acquired prior to his injury in May 2000. As I have said, I see no basis upon which it can be suggested that these profits were in any sense utilisation of an earning capacity in replacement for that lost due to the Defendants' actions.
118 If they are considered individually, it is also impossible to conclude that the acquisition or development of a number of the after acquired properties was, in whole or in part, a consequence of the Plaintiff's football injuries. The property at 57 Albatross Avenue falls into this category. The Plaintiff's experience with 41 Albatross Avenue, liking for beachfront property, and familiarity with Surfers Paradise is quite sufficient to account for the Plaintiff's dealings with 57 Albatross Avenue, particularly having regard to the time it was acquired.
119 The factors mentioned in the immediately preceding paragraph also bear on the Plaintiff's involvement with 159 Hedges Avenue and 89A Albatross Avenue although one should recognise that if, as I think probable, the plaintiff had been playing football in England in 2002 and July 2004, the prospects of him hearing of the availability of these properties would probably have been less and perhaps non-existent.
120 The evidence does not permit of any conclusion whether the dealings with the Ferrero Rd property were, in whole or part, a product of the Plaintiff's injury. Probably the same remarks can be made in relation to 36 Stanton Terrace, Townsville.
121 The purchase of the Triangle Arcade was the Plaintiff's first venture into that sort of property and his remarks about his situation and motivation at the time of purchase certainly raise a question whether, had he not been injured, he would have acquired it. It is impossible to conclude that its acquisition was not, at least in part, a consequence of his injury.
122 A similar question arises prominently in relation to the purchase of the 3 properties, 72-74 The Strand which has become the Watermark, North Town on the Mall and the Seaview Hotel and the re-development of the first two of these. A subsidiary question is whether, even if all of these purchases and re-developments had occurred, the re-developments would have occurred at about the time they did.
123 The time of purchase of the Watermark, October 2001, means that the Plaintiff may well have heard about and acquired it when he did. Its rental income means the Plaintiff could probably have bought and held onto the property until his football career ended.
124 However, the time of purchase of Northtown on the Mall and the Seaview Hotel, July 2002 and September 2003, when the Plaintiff would on my findings have probably been in England argues against the likelihood of the Plaintiff then acquiring them. Indeed, I think the probabilities are that he would not have. For there is not only the issue of him hearing about them. There are also issues such as the investigation of what they were and had to offer and, in the case of the Seaview, a preference which the Plaintiff acknowledged he had for being able to keep an eye on cash businesses. I doubt if the Plaintiff while in England could have done whatever it was that enabled the latter to be sold with the "Confidential Information" that yielded or helped to yield the $2.5M profit. It is improbable that the Plaintiff could have put in train the redevelopment of Northtown on the Mall while resident in England and great doubts exist whether his lenders would have advanced the funds to an absentee developer. Whether the property would have justified purchase with a view to being held for a year or so until the Plaintiff returned from England I find it unnecessary to decide.
125 In the case of these last mentioned properties, the conclusions at which I have arrived are that, if the Plaintiffs' football career had continued as his claim involves, probably neither would have been acquired and, even if either was, redevelopment of the one would not have commenced and the profit on the other not derived, until at the earliest the Plaintiffs' return from England at about the end of 2004.
126 In any event, the Plaintiff bears the onus of proof of showing that he has suffered loss through impairment of his earning capacity. In the circumstances of this case that involves persuading me that the probabilities are the opposite of those stated in the immediately preceding paragraph. Even if the conclusions there expressed are not positively justified, the Plaintiff has failed to persuade me of the opposite. He has also failed to persuade me that the Triangle Arcade would have been purchased and its profit derived had his injury not occurred.
127 The profit derived from the Seaview Hotel and the transaction associated with it is itself substantially in excess of what the Plaintiff lost through inability to continue playing football. So is the profit to be derived from the development of Northtown on the Mall. Of course, if one concluded that the Plaintiff would have acquired Northtown on the Mall and merely deferred re-development of it, it may be only a case of profit being delayed not lost. However, the figures are such that even a delay in the receipt of profit would have a significant operation in off-setting the Plaintiffs' football income. And there is also the profit on the Triangle to be taken into account.
128 I do not forget that in GIO v Johnson (1981) 2 NSWLR 617 at 627, Hutley J said "Where a person has capital employed in a business, it is necessary to split his earning capacity from his income" - a passage quoted with approval by Finlay J in Pennington v Inverell Municipal Council (Unreported, Finlay J, 24 September 1992) - that my enquiry must be directed to the Plaintiffs' earning capacity and not simply to his income, and that so far I have not made that distinction. See also O'Loughlin v Cape Distribution Ltd [2001] EWCA 178.
129 However it is clear that the profits, realised and unrealised, arising from the Triangle Arcade, Northtown on the Mall and the Seaview Hotel have in large part flowed not from the employment of capital possessed by the Plaintiff or under his control but from funds he has borrowed for the purposes. The same remark may be made in respect of the Watermark, although in making it I do not forget the distinction I drew a short time ago as to the probabilities of purchase of this property. To the extent to which this has occurred, it seems to me appropriate to regard the profits from the 4 properties as flowing principally from his earning capacity rather than from the employment of capital and this even if - and I am not sure this is the case except to a minor extent - without some injection of capital by him, the borrowings could not have been made.
130 Were there a greater degree of equality between on the one hand the employment of capital possessed by the Plaintiff or under his control and on the other the totality of monies he borrowed and his entrepreneurial activity and skill - and this whether one looked at the 4 properties referred to in the immediately preceding paragraph individually or in aggregate - it would be necessary to attempt more analysis than I have done. However, in light of the relativity in those matters that exists and the extent of the profits made on the Triangle Arcade, Northtown on the Mall and the Seaview Hotel, I do not fell it necessary to carry out this analysis.
131 Indeed on one view it could be said that all of the profit is attributable to, and should be regarded as reflective of, the Plaintiff's earning capacity. All is the result of his decisions to purchase and then do various things with the properties and just as an interference with earning capacity may have an impact on the usability of capital or a capital asset, particularly in the short term, as is recognised in Luntz, Assessment of Damages for Personal Injury and Death (4th Ed, 2002) at 5.5.4, and damages recovered for the loss of use, so it may be argued may the productivity of capital be said to be attributable to the exercise of an earning capacity. However, I need not so decide. Even if some of the profits should be regarded as attributable to the employment of capital or the engagement of others such as architects, I would nevertheless conclude that the major causative factor in the derivation of the profit was the Plaintiff. Looked at from another perspective he, and not capital, was the cause of the vast bulk of the profit. In the exercise of labour and skill that was an incident of the Plaintiff's earning capacity in land dealing and development, he made the decisions that led to the profits, including the decision to purchase, borrow, engage others, obtain plans and sell or redevelop.
132 In this connection, I accept the Plaintiff's evidence to the effect that in his land dealing or development activities, he does not work what one would regard as full time and that much can be achieved over the telephone. However, I am not persuaded that the time involved is as low as the Plaintiff's own evidence would suggest. The size of the developments the Plaintiff has undertaken must have involved considerable consultation with many, many people. It is impossible to believe that, playing in England, the Plaintiff could not have put into the Northtown on the Mall project the time other evidence indicates he did.
133 I should perhaps add, particularly for the benefit of any other court that has to consider the matter that, although my impression of the Plaintiff was that he was a generally truthful witness, I do wonder whether he tended to downplay certain matters. An example is his evidence given on 15 February 2005 as to his wealth. That evidence is impossible to reconcile with documents he had signed or with what he said when cross-examined on such documents on 23 August 2005. The Plaintiff's explanation for the discrepancy is also not easy to accept.
134 Mr Gross QC, counsel for the Plaintiff, submitted that I could draw no inference from the fact or the amount of the invoice and it should be treated as simply a means for the Plaintiff to obtain back money from a corporation he controlled. It was submitted alternatively that the fee encompassed the Plaintiff's whole role, including the risk element. I see no basis for concluding that the amount charged reflects more than the reasons advanced in the invoice.
135 However, before leaving the topic, there are some other matters to which I should refer. It was the primary submission of Mr Gross that the court "can't look at capital gains", "market movements" or "the labour of others" and that the profits made by the Plaintiff fell into one or more of these categories. He submitted that at least part of the reason why capital gains could not be looked at was that neither juries nor courts could competently make a distinction between the various elements - including time, energy, resources, decision making, labour of others, and general or particular inflation that contributed to any gain. It was, so the submission went, inherently impossible to look at a capital profit, subtract other factors, and thus establish what was left as being the value of a person's "entrepreneurial skill or luck".
136 Although later Mr Gross seemed to retreat to some degree from this, at one stage he also submitted that there was no extra earning capacity released by reason of the Plaintiff's injury; the extra time freed up was of no use to the Plaintiff in his investment or development activities and even remaining in Australia rather than going to play football in England was of no advantage in this connection; although the Plaintiff may have had more time available through not playing football and that might have allowed him to indulge in more transactions, these could be good or bad and that was a matter of luck, and the end result if successful would be a capital gain.
137 Mr Gross also submitted that if the professional architect, builders and others engaged by the Plaintiff exercised due care and skill in doing their jobs, the Plaintiff's presence might give him more peace of mind but would not add value; and even if one took the view that the Plaintiff's absence from Australia playing football would have made some developments harder, and that they would have been deferred, the only consequence was that such gain as he had or was likely to derive was advanced.
138 I have summarised at a little length these submissions but most suffer from the fundamental fallacy that they ignore the elementary principle that in assessing damages a court is required to do the best that available evidence allows and not simply adopt the view that because precision is impossible, give up the task. If events, including profits or losses, are the product of a number of factors including an earning capacity or loss of it, and earning capacity or a loss of it is something a court is required to assess, difficulty - inherent, not one attributable to a party's failure to advance relevant evidence - is not a reason for not coming to a conclusion.
139 In support of his claim that the court "cannot buy into the capital profit at all", Mr Gross cited an American textbook "Handbook on the Law of Damages" by Charles McCormick, where it is suggested that where loss has been the product of both labour and capital, one looks to see which is predominate. Thus at paragraph 87 it is said:-
"If he (the injured plaintiff) is the owner of a business, however, it is only where the profits of a business are chiefly dependent upon the plaintiff's own efforts and not upon capital invested or the labour of employees that the courts will permit evidence of the past profits and their diminution during plaintiff's absence from business to be used to show the value of time lost."