Damages: conclusion
81 Damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347) per Dixon CJ, Kitto and Taylor JJ. In order to determine a plaintiff's lost earning capacity and determine what sum will put the plaintiff in the same position he or she would have been in if injury had not been sustained, it is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. What a worker earned in the past may provide useful guidance about what would have been earned if that worker had not been injured, but insofar as the future is concerned, the inquiry is one about the likely course of future events and evidence of past events does not always provide certain guidance: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at [7] - [8] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
82 The setting aside of an award of damages in a trial where there is neither a challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence, should be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable: Wilson v Peisley (1975) 50 ALJR 207 (at 209) per Barwick CJ; see also Moran v McMahon (1985) 3 NSWLR 700; The Owners - Strata Plan 156 v Gray [2004] NSWCA 304 at [41] per Sheller JA, Gzell J agreeing. Requiring this level of error before appellate intervention is warranted reflects the fact that the task of assessing damages for lost earning capacity is "necessarily impressionistic": Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).
83 While it has been said that the Court is in a better position to determine the extent to which a loss of earning capacity "is or may be productive of financial loss" when considering the closed period between accident and trial (Tran v Younis [2006] NSWCA 188 at [12] per Handley JA, Hislop J agreeing), the fact of unemployment during that period is not determinative of the issue of past economic loss. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412). However it is not incumbent upon the injured plaintiff to prove what employment he or she "is not incapacitated from performing". It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: Rabay v Bristow [2005] NSWCA 199 (at [73]) per McColl JA (Handley and Bryson JJA agreeing); approved Magnou v Australian Wool Testing Authority Limited [2007] NSWCA 357.
84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.
85 As both parties accept, the primary judge was not bound by the respondents' concession as to the appellant's loss of earning capacity. It was incumbent on his Honour to assess the evidence himself and arrive at his own conclusion. It would, with respect, have been desirable for him to have explained why he did not accept that submission. However as, in my view, his Honour did not err in reaching his conclusions about the appellant's economic loss it is not necessary to take this point further.
86 The primary judge's view that the appellant was fit to work from April 2001 until the aggravation of his back injury on 9 September 2003 while working for Adecco is arguably not supported by the medical certificates. While they demonstrate that the appellant was certified fit to resume his pre-injury duties on 2 April 2001, by June 2001 Dr Zecevic, certified that he was unfit to work from that date. On 20 July 2001 Dr Zecevic certified that the appellant was fit for suitable duties from 23 July 2001. He restricted those duties to ones not involving heavy lifting over 5kg. On a date which appears to be either 13 or 18 November 2001 Dr Zecevic certified that the appellant was not fit for his usual work and would not be able to work for at least eight hours a week or return to work within three months. A similar certificate was issued by Dr Irani on 27 April 2003 certifying the appellant unfit for the period 27 March 2003 to 3 May 2003, immediately prior to him resuming work as a concrete truck driver with Adecco.
87 These certificates must be compared with the nature of the work the appellant undertook prior to the accident and the activities in which he engaged afterwards notwithstanding medical opinions about the apparent limitations upon his physical capacity.
88 The appellant accepted that there was no physical exertion involved in the job of a concrete driver. The work was "pretty easy" and there was "nothing heavy about it", although it did involve long hours. In cross-examination he accepted that he had been driving long distances most of the time since his accident. While he worked at the butcher shop he made deliveries. By the time he got his job with Adecco his condition had improved. He worked without any apparent limitation as a concrete driver at Adecco for almost three months before he aggravated his lower back undertaking labouring activities. He said he undertook that work on painkillers, but nevertheless he was able to work in what he agreed was a "pretty easy" occupation. He agreed that by September 2004 his back had returned to the position in terms of the levels of pain and disability that it was when he applied for the job with Adecco in June 2003. Nevertheless in his evidence-in-chief he said that he was unable to drive a heavy vehicle.
89 The appellant submitted that since his injury he had tried to go back to regular truck driving but had been unable to do so. Ms Norton drew attention to the fact that he had sought to undertake that activity in February 2004, that is, within a few months of aggravating his injury while at Adecco, but had been unable to do so. However, February 2004 was during the twelve months the primary judge allowed full economic loss to the appellant for the aggravation of the injury he had suffered in the present case and prior to him returning to his pre-aggravation state of health. There is no indication, as I read the evidence, that the appellant tried to go back to the "relatively easy" position of concrete truck driving after September 2004 when his back was in the condition it had been when he worked for Adecco for three months as a concrete truck driver. The primary judge was entitled to conclude (at 64), in my view, that the appellant was fit for his pre-accident occupation and other forms of light to moderate work, but permanently unfit for work of a heavy manual nature.
90 It must be borne in mind that the primary judge's view of what the appellant could do was, in part, demeanour-based. It is apparent that he concluded from that observation as well as the disparity between the evidence about what the appellant could do in fact and what he reported to medical practitioners, that the appellant was exaggerating his symptoms and incapacities. There was no incontrovertible evidence to the contrary. The primary judge was entitled to conclude that the impressions the medical practitioners formed were not based upon a true account of the appellant's actual activities. In my view the primary judge was entitled to conclude that notwithstanding the long periods the appellant had been unemployed since the accident, his incapacity was not as great as that for which he contended.
91 I accept that the primary judge appears not to have taken into account in his assessment of past economic loss the periods the appellant was certified either unfit for employment, or fit only for limited duties in the periods in 2001, 2002 to which I have referred. This is explicable, in my view, by his conclusion that the appellant was exaggerating his incapacities, a view expressed by medical practitioners whose reservations as to the appellant's incapacity his Honour was entitled to adopt.
92 Further it should be noted that the primary judge awarded the appellant damages for the period he was employed in the butcher's shop in 2002. Even if his Honour had erred in relation to the period covered by the certificates to which he did not directly refer, the sums awarded for the 2002 period would broadly compensate the appellant. In such circumstances no substantial miscarriage of justice is apparent.
93 As to the future, this was, in my view, a clear case for the award of a buffer. The appellant had left school in 1991 aged 15. According to his evidence he had then worked as an apprentice cabinet maker for about a year, then did labouring work for a period which was not disclosed in the evidence, then worked for six months as an apprentice butcher with his father, then worked as a brick-layer's labourer, again for a period which is not disclosed in the evidence. He then obtained labouring work in 1997 as a concreter.
94 The evidence did not disclose what the appellant had earned in the period up to the financial year commencing 1 July 1996. However the appellant's tax returns for the period 1996-2001 were tendered. They disclosed that in the four years prior to obtaining work with Dependable, the appellant had engaged in virtually no remunerative employment but had drawn Newstart benefits. Further, as I have said, the appellant had obtained no employment after September 2004 despite his physical condition being that which had enabled him to apply for a position as a concrete truck driver and perform such duties in late 2003. In my view, the primary judge gave cogent reasons (at [82] - [86]) as to why this was a case where the difficulties in comparing the economic benefits the appellant derived from exercising his earning capacity before injury and that which he could derive from exercising it after injury were such that the assessment of his future economic loss should be compensated by a buffer rather than by attempting precise mathematical calculations.
95 The challenge to the awards for economic loss should be rejected.