73 In essence, the principal component was a claim that the plaintiff's anticipated or actual business interests were detrimentally affected by the accident. There was an additional claim, which was run at trial essentially as a fall-back position, based on lost wages that the plaintiff could have and would have earned (uninjured) in addition to anticipated earnings from his business ventures. The parties are at issue as to whether this alternative case was ultimately pressed in relation to past economic loss.
74 As will appear, the plaintiff was largely unsuccessful in the claim for loss of business income. Part of his complaint as to the primary judge's assessment focuses upon the judge's failure to give proper weight to the alternative claim in the circumstances.
75 The plaintiff's sporadic pre-accident work history, the essentially hypothetical nature of both limbs of his case for economic loss, lack of evidence as to comparable earnings other than average weekly earnings and the absence of critical business records made the judge's task a very difficult one. So too did the overwhelming concentration upon the business loss component which, on closer analysis, presented more and more as a totally unrealistic ambit claim.
76 In his early life the plaintiff had worked as a butcher, in a hang gliding school, as a stripper and in other activities. Between about 1988 and 1993 he worked in the building trade as a non-ticketed carpenter.
77 During 1993-1994 the plaintiff manufactured and retailed household furniture under the business name Moore Unique Australian Furnishings. The business produced sales in the order of $40,000. Obviously net profits were substantially less. This business does not appear to have been continued thereafter. The plaintiff claimed that he had formed an intention to revive this venture, but this was not accepted by the primary judge.
78 In 1994 he moved into a string of business activities in the Solomon Islands which turned out to be fairly unremunerative. His limited income thereafter was supplemented by Social Security payments (unemployment benefits) and borrowings from family members.
79 As indicated in the particulars set out above, the plaintiff pursued business ventures in the Solomon Islands and the Pacific Ocean area from 1994 onwards. The evidence showed that this was done to the exclusion of all other remunerative callings between 1994 and the trial in late 2001. It was the plaintiff's case at trial that these were being actively pursued at the time of the accident and that good prospects of substantial earnings were cut short by the accident.
80 One problem for the plaintiff was that the continuing physical disabilities stemming from the accident did not affect this type of working, save in a fairly marginal way. And the continuing psychological problems were not shown to have held him back from these ventures to any marked degree. Furthermore, most of the ventures were not shown to be remunerative despite the plaintiff's best efforts before and after the accident, even allowing for the limited negative impact of the accident upon his capacity to do entrepreneurial work.
81 I am not suggesting that the plaintiff's accident-induced discomfort, pain and unhappiness with its attendant psychological problems had no negative effect. But the gauging of its extent and the extent to which it sounded in monetary loss were very difficult issues in the trial, for reasons already indicated. Undoubtedly, credit issues were involved, although the judgment refrains from making express disclosure of their impact. The plaintiff was challenged as to his willingness to work (pre-accident) and exaggeration of his symptoms (post-accident). It was put to him that he was understating the extent of his active involvement in the entrepreneurial activities in which he increasingly engaged in the run up to the trial. He chose to put almost the entire weight of his case in the lost business income basket. These matters overlay the usual factors which indicate cause for appellate restraint in disturbing a judgmental assessment of loss of earning capacity (Ashford v Ashford (1970) 44 ALJR 195, State of New South Wales v Moss (2000) 54 NSWLR 536).
82 The overseas ventures were resumed after the initial three month period of severe post-accident incapacity. There were meetings, phone conversations and faxes. The plaintiff travelled to the Solomons or Singapore once in late 1999, once in 2000 and twice in 2001. These ventures produced practically no income in the three and a half years between the date of accident and the trial.
83 The ventures in the Solomons between 1994 and 2001 related to beche de mer, tuna fishing, timber importation, mining and tourism and were addressed in detail in the judgment below (Red 52-60). The capacity to turn these ventures to profit depended on particular political clout in the Solomons, binding contractual arrangements, and business partnerships evidenced by mutual trust as distinct from disputation. The plaintiff appears to have been on the debit side of the ledger in every such respect. The trial judge also recorded that "all the plaintiff's business activities including timber [were] characterised by vagueness or assertions of commercial relationships that [were] not backed up by documents or other evidence" (Red 57).
84 The only remunerative business venture found to have been affected by the accident involved timber importation. The trial judge accepted that the plaintiff had lost some opportunities in the timber industry in the first 12 months after the accident. He allowed $25,000 for this component, but that was the only award in the plaintiff's favour in relation to lost business opportunities. As will appear, the plaintiff returned to timber importing in the months before the trial.
85 This business income part of the plaintiff's case was not pursued in the appeal and it is for that reason that I have not tarried over the details. Nevertheless, it remains of some relevance to the alternative loss of earning capacity case that is now pushed to the forefront of the appeal.
86 In the main, the failed claim for lost business earnings does significant harm to the alternative or fallback case described in the judgment as "loss of earning capacity". In the first place, the evidence shows that well before the accident the plaintiff had largely turned his back upon his earlier calling in the building industry, and paid employment generally. He had not engaged in it since 1993. He had in fact looked to Social Security to supplement his income in the mid-1990s. I am not suggesting any impropriety on that account, but it does suggest that the plaintiff would not and/or could not maximise his earning capacities in the years before the accident.
87 When the plaintiff emerged from the severe traumas of the first months after the accident, it was to his overseas business ventures that he turned his attentions. This casts light on the plaintiff's work intentions at and before the time of the accident, his capacity to perform non-labouring work after the accident, his drive and ability to adapt, and his limited ability to turn dreams into hard cash (at least in the Solomon Islands). These factors obviously cut both ways in the issue of assessing economic loss. In all the circumstances, it would be totally unreal to view the plaintiff's overseas ventures as some attempt to mitigate a loss of income from manual or building exertions. The overseas activities show the plaintiff as an explorer of business opportunities with largely unaffected capacity to attend to work that did not involve prolonged walking or physical effort. This corroborates the views expressed by the witnesses who assessed the plaintiff vocationally in 2000 and 2001.
88 Having addressed and largely rejected the plaintiff's claims for lost business income, the primary judge turned to the additional claim for loss of earning capacity. His Honour said this:
The plaintiff's evidence was that prior to 1993 he had worked in the building trade as a non-ticketed carpenter. Counsel for the plaintiff submitted that this work was the benchmark for establishing the plaintiff's loss of earning capacity. Counsel for the defendant submitted that since 1994 at least when the plaintiff started his business activities, his business activities were the benchmark. He submitted that within a few months after the accident the plaintiff was engaged in business activities, specifically attending a meeting in Sydney in March 1998 and by the use of faxes and the telephone and gradually with his physical limitations was back into his business activities, such as they were, before the accident, within 12 months of January 1998.
The plaintiff's evidence was that he had done subcontracting work for Mr Blackman in the early 1990s and also for Mr Reid both of whom gave evidence and confirmed this. Mr Reid, whom I accepted as a witness of truth, said he would have used the plaintiff to assist him dismantle the Seagulls Stadium, but because of the plaintiff's injuries he was "useless in the trade" (T522). The plaintiff said he did not actually visit the stadium site to inspect it and decide whether he could do some sort of work, such as supervise (T319).
The medical evidence supported the plaintiff's evidence of his problems with working on building sites because of his injuries, particularly to his right foot.
Professor Jones said at p67 (DX 16):
He would not be able to work as a labourer or carpenter within the building industry, and indeed no physically demanding occupation would be appropriate, although he would be able to walk about for part of the day and to drive a motor vehicle. Perhaps his interest in importing timber from the Solomon Islands and also in his other interest overseas, may result in successful income.
Dr Bornstein (DX 16 p8) said:
It should be noted however, that his ability to work in a situation requiring him to be on his feet and to be ambulant over rough terrain is going to be significantly impaired, if not impossible in a practical sense and from my understanding of the requirements of the employment in the Solomon Islands, it would appear that this is unlikely to be pursued.
Clearly, working at a desk or in an organisational situation should be well within his capacity physically. In the building industry though, even builders who are simply supervisors are required to walk over uneven ground and in fairly hazardous situations, at times climbing onto scaffolding to check work etc. Clearly the organisational aspects of the building industry should be well within his capacity.
It is my view that with the injuries sustained by this patient that he would [not] have been able to attend to any form of employment, even in a clerical capacity for a period of at least four to six months and possibly longer.
In my view, while the plaintiff's activities before the accident were commercial, he did agree with Mr Reid to assist in the dismantling of the Seagulls Stadium, an agreement he reached before the accident according to Mr Reid. How he would have continued with his business activities while working full-time on a building site for some months was not made clear. I accept that he was going to do some form of physical work for Mr Reid on the Seagulls Stadium. I must also take into account in assessing the plaintiff's capacity to earn post accident what he has been doing since January 1998. He has got himself back into his various business activities including a new one (trying to negotiate the sale of 52% of Solomon Resources). He does work at what he describes as "his yard" at Kurnell and later Newcastle including the assisting in the unloading of containers of wood and the loading of wood onto trucks (T291). It was not clear whether this work was the physical loading and unloading, or supervising or both, but he undertook some work activities was his evidence, although without remuneration. He can drive a car from Newcastle to Sydney and around Sydney, although I accept he has problems in doing so. He has demonstrated that he can still negotiate in business dealings, if unsuccessful to date, despite his injuries. I have also taken into account the fact the he underwent a laminectomy operation to his lower back unrelated to the defendant's negligence. The effects of this operation would preclude him from the heavier type of labouring work.
Taking all these factors into account, the plaintiff has demonstrated to me that he has a substantial residual earning capacity despite his injuries, and he has tried to return to his normal business activities. The agreed average weekly earnings figure for September 2001 was $669.00 net. In my view the appropriate weekly wage figure for the future - to age 65 - to reflect both the plaintiff's lack of economic capacity due to his injuries, and his residual capacity, is $150pw from 3.1.98.
I allow $120,704 ($150 x 946.70 x .85) from the date of injury to age 65.