[1991] HCA 54
Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-643
[2003] HCA 10
Robinson v Harman (1848) 1 Ex 850 at 855
[2019] NSWCA 127
Searle v Commonwealth of Australia (No.3) [2019] NSWSC 14
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
[1994] HCA 4
State of New South Wales v Moss (2000) 54 NSWLR 536
Source
Original judgment source is linked above.
Catchwords
[1991] HCA 54
Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-643[2003] HCA 10
Robinson v Harman (1848) 1 Ex 850 at 855[2019] NSWCA 127
Searle v Commonwealth of Australia (No.3) [2019] NSWSC 14
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332[1994] HCA 4
State of New South Wales v Moss (2000) 54 NSWLR 536
These are representative proceedings commenced by Mr Clayton Searle, the plaintiff, pursuant to Pt 10 of the Civil Procedure Act 2005 (NSW). They began on 11 February 2016 when the plaintiff filed a Statement of Claim, by which he claimed damages and related remedies for breach of contract by the Commonwealth of Australia, the defendant. (The plaintiff also claimed for negligent misrepresentation and deceit, although those claims were later abandoned and are not relevant to this judgment.)
As set out in a Second Further Amended Statement of Claim filed on 10 August 2016, Mr Searle and each other group member was enlisted in the Royal Australian Navy as part of the Marine Technician cohort known as MT2010. The Navy was (and remains) a part of the Australian Defence Forces and an emanation of the defendant ("the Navy"). Each of them entered into a "Training Contract" with the defendant between September 2010 and October 2012.
It will be necessary at a later stage of this judgment to consider in some detail the terms of the Training Contracts. However, at this stage, it is sufficient to note that the defendant was obliged by the Training Contract to provide the group members with training which would enable them to attain a Certificate IV in Engineering with National Qualification Code MEM40105 ("Certificate IV").
The defendant breached the Training Contracts by failing to provide the necessary training. As a result the group members claim to have suffered loss and damage which, in broad terms, is the value of the lost opportunity to seek employment outside the Navy having attained a Certificate IV.
In this judgment, I consider the individual claims made by nine group members and assess the damages to which they are entitled from the defendant.
[3]
History of Proceedings
The matter proceeded to an initial hearing on liability before Fagan J in February and March 2018. His Honour dismissed the plaintiff's claim on two bases, namely because the plaintiff's contract with the defendant was void as a fetter on the Commonwealth's executive power of command over the Navy, and also because the Training Contract was unsupported by consideration from the plaintiff: see Searle v Commonwealth of Australia (No.2) [2018] NSWSC 1017 ("the Trial Judgment").
The Court of Appeal overturned his Honour's decision in Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 ("the Appeal Judgment"). Bell P (as the Chief Justice then was) wrote the leading judgment, with which Bathurst CJ and Basten JA agreed, and also added their own observations. In summary, their Honours held that in the circumstances of this case the Training Contracts were not void as a consequence of the "fettering doctrine", which is the doctrine that a government or public authority may not fetter the future exercise of discretionary powers reposed in the executive or a public authority. Their Honours also held that, because the plaintiff was bound by the Training Contract to serve in the Navy for a longer period than he had initially enlisted for, the Training Contract was supported by consideration.
Fagan J had recorded his contingent findings with respect to damages against the event that his decision was overturned: the Trial Judgment at [138]-[156]. His Honour heard evidence of:
1. the hypothetical income the plaintiff could have earned if the Training Contract had been performed and the plaintiff had left the Navy in December 2015 with a Certificate IV; and
2. the income the plaintiff had in fact earned, without having attained a Certificate IV.
The plaintiff relied on expert remuneration and human resources evidence to establish the employment opportunities that would have been available had the plaintiff attained a Certificate IV. The expert's evidence involved relying on an analysis of job advertisements posted to one website, narrowed initially by keyword searches and later examined in detail. Those advertisements were not geographically confined to the region in which the plaintiff had said he had planned to live.
The expert used the results of his analysis of the job advertisements to create a "generic job description" to which he ascribed points based on the knowledge and skills required, the level of complexity involved in execution of the job and the outcome or accountability of the job. He then attributed a pay range which corresponded to the points he had ascribed to the generic job description, and which was based on his experience derived from working in the field for 30 years and reviewing the descriptions of thousands of jobs and collecting data on the rates of pay those jobs attract.
The result was an estimation of the annual gross salary (plus superannuation contribution) for a job of the generic description which he considered the plaintiff would be eligible to take up if he held a Certificate IV. That estimation commenced in 2016 at around $90,000, rose by 2.5% each year to around $98,000 in 2020 and then was increased significantly to around $123,000 in 2021 as a consequence of an assumption that the plaintiff would have been promoted to a job in a higher generic category at around that time. The expert estimated that after 2021, the plaintiff's salary would increase annually at a rate of 2.5%.
The plaintiff had in fact earned less than those estimates.
Fagan J found at [140] that:
"the evidence [did] not establish that a Certificate IV … is so generally and readily accepted amongst employers in any defined field that an employee holding the qualification would command employment in that field at a salary within a reasonably ascertainable range."
His Honour went on to find that, on the balance of probabilities, the plaintiff would not have found a job in the region in which he planned to live if he had discharged from the Navy with a Certificate IV in December 2015, from which he could have earned salaries at the rates hypothesised by the expert witness. His Honour was not convinced that a job of the description propounded by the expert was available in the region at the relevant time; nor was his Honour convinced that the holding of a Certificate IV, combined with the plaintiff's experience and other attributes, would have secured him the job if it existed: the Trial Judgment at [151].
His Honour was satisfied, however, that the plaintiff's earning capacity had been reduced as a result of the defendant's breach of the Training Contract, but "by [no] more than about $15,000 per annum": the Trial Judgment at [154]. His Honour also recognised that any shortfall in earning capacity is not fixed and perpetual, as a consequence of a finding that the plaintiff's "accumulated experience will progressively compensate for the absence of the formal qualification". His Honour ultimately assessed damages "on the basis that holding the Certificate IV… would have accorded some marketability or potential to secure a higher paying job for which the plaintiff has been ineligible without it". His Honour, acknowledging that such an assessment was "amenable to only the crudest numerical estimation", awarded the plaintiff a nominal lump sum of $60,000: the Trial Judgment at [156].
The Court of Appeal, having overturned his Honour's decision with respect to liability, did not disturb Fagan J's assessment of damages. In reaching that conclusion, which involved dismissing a Notice of Contention that had been raised by the defendant on the appeal, Bell P set out some of the authorities regarding the principles of law relating to the loss of a chance, to which it will be necessary to return later in this judgment. At this stage, it is sufficient to note that the Court of Appeal recognised the difficulties in the assessment of damages for loss of opportunity that the High Court and the Court of Appeal have referred to many times over the years, which may involve the need for "estimation, if not guesswork": citing Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10 at [38] (Hayne J). No part of the trial Judge's reasoning which I have set out above was criticised by the Court of Appeal: see the Appeal Judgment at [209]-[211].
[4]
Common Questions and Answers
In Searle v Commonwealth of Australia (No.3) [2019] NSWSC 14 ("the Common Questions Judgment"), a separate judgment which followed the Trial Judgment, Fagan J answered a series of questions common to the claims of the group members in the following way ("the Common Questions"):
"Q7 Did the defendant fail to provide to the plaintiff and to the Group Members a Training Plan as referred to in the training contracts?
Yes.
Q18 Did the defendant arrange for a Training Plan as referred to in the Training Contract and the Group Member contracts to be signed by the defendant and each of the plaintiff and Group Members?
No.
Q8 Did the defendant fail to take steps to provide the training that would be required to enable the plaintiff and Group Members to obtain the Certificate IV in Engineering (national qualification code MEM40105)?
Yes.
Q20 Did the defendant evince an intention in June 2014 not to be bound by the Training Contract or Group Member contracts by announcing that the plaintiff and the Group Members would not be, and could not be, obtaining the Certificate IV in Engineering (national qualification code MEM40105) at the end of the contract?
Yes."
As a consequence of the Appeal Judgment, another Common Question was answered as follows:
"Q2 Whether the Training Contract between the plaintiff and the defendant and the Group Member Contracts (being training contracts between the Group Members and the defendant) were a nullity or invalid or otherwise unenforceable?
No."
Additionally, I note that the pleadings in this matter have not been amended since the trial of the plaintiff's claim and no other group member's individual claim was separately or differently pleaded. Accordingly, the group members' individual claims are to be determined with reference to the Second Further Amended Statement of Claim filed on 10 August 2016 and the Defence to the Second Further Amended Statement of Claim filed on 22 August 2016, and by reference to the answers to the Common Questions.
[5]
This Hearing
On 8 May 2020, the Court granted leave to the plaintiff, pursuant to ss 168 and 169 of the Civil Procedure Act, to permit ten group members to appear in the proceedings for the purpose of having their individual claims determined. Ultimately, nine group members so appeared. As they had the same legal representation, and the plaintiff remains on the record, it is convenient to continue to regard the plaintiff as the party preparing the claim although he has already recovered a judgment.
The parties did not dispute that the defendant had breached the Training Contract. Nor did they dispute that the opportunity which was lost by the group members as a result of the breach, namely the opportunity to seek employment having attained a Certificate IV, was of some value and that therefore the breach was compensable by an award of damages. What was in serious dispute was the value of the lost opportunity.
By the time of the hearing, which commenced on 28 February 2022 and concluded on 25 March 2022, there remained some matters of fact which were significantly in dispute, and which are relevant to a determination of the value of the opportunity which each group member lost. In summary, they are:
1. What was the term of the Training Contracts and by when could the group members have expected to attain the Certificate IV?
2. What were the contractual promises made by the defendant when it entered into the Training Contracts and what was it obliged to perform?
3. What was the nature and extent of the breach of the Training Contracts by the defendant?
4. To what extent did the defendant partly perform their obligations under the Training Contracts?
5. To what extent was there a difference in value between the training the defendant was obliged to provide, towards attaining a Certificate IV, and the training it did provide, towards attaining a Certificate III (a lesser qualification)?
In addition to those matters of fact, the parties disputed some of the principles to be applied in this case in order to quantify the value of the lost opportunity, especially with respect to the proposed method of calculation which the plaintiff adopted at this hearing, through an expert witness called to give evidence about, among other things, hypothetical earnings.
Also, as a matter of principle and with reference to those matters of fact described at [22(3)]-[22(5)] above, the Court was called upon to decide whether and to what extent the group members ought to have been expected to undertake alternative training, or obtain training in furtherance of their partly‑finished courses, once it was clear that the defendant had failed to provide training in accordance with the Training Contracts.
[6]
Outline of the Plaintiff's Case
As to the matters of fact which I outlined at [22] above, the plaintiff says that the Training Contracts were for a term of four years, that the Court of Appeal has determined that fact (at [18] and [159] of the Appeal Judgment), and that it is not now open to the defendant to contend for a different finding.
By reference to the answers to the Common Questions, the plaintiff submits that the defendant breached the Training Contracts by:
1. failing to take steps to provide the training that would be required to enable the group members to obtain the Certificate IV (Common Question 8);
2. failing to provide the group members with Training Plans (Common Question 7) and failing to arrange for Training Plans to be signed (Common Question 18); and
3. evincing an intention in June 2015 not to be bound by the Training Contracts by announcing that the group members would not be, and could not be, obtaining the Certificate IV at the end of the contract (Common Question 20).
The plaintiff also seeks to articulate a series of other breaches which are referable to the obligations contained in the Training Contracts and the legislation which the Training Contracts were governed by (see [51]ff below). He submits that the defendant breached its obligations by:
1. failing to negotiate and sign Training Plans, contrary to the undertaking by the employer in the "Training Contract Declaration";
2. failing to employ and train the group members as agreed in Training Plans, contrary to par (a) of the employer's "Training Contract Obligations";
3. failing to provide the appropriate facilities and experienced people to facilitate the training and supervise the group members while at work, in accordance with Training Plans, contrary to par (b) of the employer's Training Contract Obligations;
4. failing to make sure the group members received on-the-job training and assessment in accordance with Training Plans, contrary to par (c) of the employer's Training Contract Obligations;
5. failing to provide work that was relevant and appropriate to the achievement of the Certificate IV, contrary to par (d) of the employer's Training Contract Obligations;
6. failing to ensure the group members were trained in accordance with the "approved training scheme" (as that term is defined in the Education and Training Reform Act 2006 (Vic) ("ETRA"), relevantly the scheme relating to the Certificate IV), contrary to subs 5.5.8(1)(a) of ETRA;
7. failing to allow the group members to comply with the approved training scheme without hindrance, contrary to subs 5.5.8(1)(b) of ETRA;
8. failing to arrange for the group members to be enrolled in a vocational education and training course provided by a Registered Training Organisation, as required by the approved training scheme, within three months after the date of commencement of the Training Contracts, contrary to subs 5.5.13(a) of ETRA;
9. failing during the duration of the Training Contracts to provide a level of supervision that was in accordance with the Training Contracts and the approved training scheme, contrary to Sch 4 sub-cl 4(1) of ETRA; and
10. failing to provide training directed at enabling the group members to obtain the standards of skill and knowledge required by the approved training scheme to be attained by the group members, contrary to Sch 4 sub-cl 4(2) of ETRA.
The plaintiff argues that it is not necessary for him to prove that there was a particular available job having left the Navy for which a Certificate IV was a requisite qualification, nor that there was a particular job for which the group member would likely have successfully applied if he had held the Certificate IV, before he was entitled to an award of damages by way of a lost opportunity to obtain employment with the benefit of a Certificate IV.
The plaintiff contends that the value of the lost opportunity may be assessed even if the possibility of the opportunity being realised is less than 50% or less than more probably than not, so long as it is not "so low as to be regarded as speculative": McCrohon v Harith [2010] NSWCA 67 at [97]-[98]. Furthermore, the plaintiff argues that it would be appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility: State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [87].
The plaintiff relies on evidence given by Mr Mathew Hunter, an expert in recruitment and organisational capability development for the naval shipbuilding industry and the wider defence industry with over 27 years of experience. Mr Hunter prepared reports relating to each group member that appeared at this hearing and ultimately gave evidence about one or more counterfactual scenarios in which each group member had attained his Certificate IV. At a high level, those counterfactual scenarios depend on the evidence of each group member, including as to their aspirations, and involve some combination of the following:
1. the group member obtaining employment in a skilled role in the region in which they had planned to live; and, as well,
2. the group member remaining in the Navy and being promoted as a consequence of them having attained the Certificate IV.
Mr Hunter's method of designing and assessing the counterfactual scenarios differs from the approach taken by the expert witness relied on by the plaintiff at the first hearing before Fagan J. Whereas the witness who gave evidence before Fagan J created his own "generic job" to which he attributed a pay range, as I described at [9]-[11] above, Mr Hunter focussed on jobs actually offered by large organisations in the region in which the group member planned to reside. However, in connection with that submission which I described at [28] above, the plaintiff argues that the roles which Mr Hunter examined constitute evidence of what the group members could have earned on the hypothesis that they had obtained a Certificate IV qualification pursuant to the Training Contract, and also evidence of their hypothetical capacity to earn.
The Navy's failure to provide "Training Plans" in accordance with the Training Contracts means that the hypothetical pathway that would have been followed by the group members, if the defendant had performed its obligations under the Training Contracts, is less clear than it would have been otherwise. The plaintiff submits that that uncertainty ought be resolved generously and in favour of the group members: McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 at [157]-[162]. Relevantly, Mr Hunter's evidence is based on the assumption that the group members would have pursued employment in a particular specialised engineering field, in which the group member expressed an interest.
Finally, in respect of the dispute about pursuing further or alternative training, the plaintiff points out that the defendant has not pleaded any defence which alleged a failure to mitigate on the part of any individual group member. The defendant had attempted to amend its pleading to allege a failure to mitigate, but that was refused by this Court in 2018, prior to the trial of the plaintiff's claim: Searle v Commonwealth of Australia [2018] NSWSC 105. The plaintiff rejects the defendant's proposition that the value of the opportunity which has been lost may be valued by reference to the time in which a group member might have been able to complete the training required to attain a particular formal qualification.
[7]
Outline of the Defendant's Case
The defendant submits that the term of the Training Contracts was always longer than four years, because it was not possible for it to provide the training required to attain a Certificate IV within four years. It says that:
"as a matter of construction there is nothing in the language of the Training Contracts which obliges the employer to provide all of the training necessary to enable an apprentice to achieve the [Certificate IV] within the nominal term of 48 months".
The defendant points to the training which it in fact provided the group members. It advances the proposition that the Certificate IV would only have provided the group members with "generic Navy capability" and would not have usefully improved their earning capacity, especially in a civilian context. It says the alternative training towards attaining a Certificate III, which it provided to some degree after it breached the Training Contracts and abandoned plans to train the group members towards attaining the Certificate IV, was "more beneficial" than the training which it was obliged to provide. It highlights what it says are greater degrees of specialisation offered at the Certificate III level.
The defendant complains that the plaintiff's articulation of "Common Breaches", which I set out at [26]-[27] above, "does not appear to pay adequate attention to the claims actually pleaded and determined by way of the Common Questions". It refers to the answers to the Common Questions and submits that the only breach actually determined by Fagan J and upheld on appeal was the failure to provide a Training Plan. It points out that no breaches of statute are pleaded against the defendant and that the plaintiff is improperly calling on this Court to determine a further question common to all group members, namely whether certain statutory obligations were imported into the Training Contracts and then breached. The defendant submits that ss 168 and 169 of the Civil Procedure Act limit the power of this Court to determine questions arising in this hearing which relate only to the individual group members that have appeared with leave. It submits that this Court has no power to determine any further common question.
Furthermore, it argues that its specific obligations were defined by reference to the Training Plan. Because no Training Plan was ever provided, the defendant says "it cannot be sued for damages for failing to make available… or provide training towards [a particular] stream, pathway or specialisation" within the Certificate IV. It argues that it was under no such obligation to provide such training and says no obligation was ever pleaded. Instead, the Certificate IV program was so flexible that it was permissible for the defendant to train the group members towards a varied skillset without specialisation in any particular trade.
The defendant says the plaintiff's submission described at [32] above is misconceived for four reasons. First, it says it was under no obligation to structure the Certificate IV in accordance with any particular specialist pathway. Secondly, it says there is no evidence that the defendant ever offered to train any group member in accordance with any particular pathway or trade stream. Thirdly, it submitted that three out of the four pathways identified by the plaintiff are "non-approved pathways" within the Certificate IV qualification, which would have required the defendant to design a bespoke course of training. The defendant was under no obligation to do so, and there is no evidence that it did so. Finally, the defendant submits that it in fact "intended the Certificate IV… to be structured around a different occupation pathway, namely a 'Fitter (General)' pathway". No witness was called to support this contention.
Rather, as to this submission, the defendant points to evidence that each group member signed an "Australian Apprenticeship Sign-up Form" ("AAS Form") at the same time they signed their Training Contract. Some fields of that Form were pre-filled by the defendant before the form was given to each group member to complete and sign, including a field which described the "qualification being undertaken" as a "Certificate 4 in Engineering" and the "occupation being worked towards" as a "Fitter (General)". The defendant argues this further supports its argument that it was required only to provide training in furtherance of a broad skillset "with the particular needs of the Navy in mind, rather than a set of skills needed to work in a specific trade in the civilian world". It points to other internal Navy documents created in mid-2014 which asserted that proposition.
The defendant did not call any evidence to contest the hypothetical scenarios advanced by the plaintiff's expert, Mr Hunter. Instead, the defendant chose to cross-examine Mr Hunter and criticise his methodology and the assumptions made by him. Those assumptions which the defendant attacked included that the group members would have attained a Certificate IV and specialised in a particular pathway.
The defendant submits that Mr Hunter's methodology of quantifying loss was wrong in that it compared the particular group member's hypothetical earning capacity, had they attained the Certificate IV, with that group member's actual earnings, rather than actual earning capacity. It sought to characterise earning capacity as "a capital asset consisting of the personal capacity to earn money from the use of personal skills" (citing Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617 at 627) and put that it is therefore relevant to consider how close each group member was to completing a course of training at the end of which they would attain a formal qualification.
In contrast to the plaintiff's submissions regarding alternative training (see [33] above), the defendant contends that the group members' true earning capacity was affected by how much training they had received, and further argues that that capacity was neither static nor permanent. The defendant seeks to distance themselves from the characterisation of this submission as one which would ordinarily rely on a pleaded defence of mitigation.
The defendant further attacks Mr Hunter's methodology on the basis that it fails to account for the personal decisions of the group members. Those decisions could wildly affect the person's actual earnings but, in the defendant's submission, could not affect the person's earning capacity.
Although it concedes that it is liable to pay damages for its breach of the Training Contracts, the defendant maintains that the Navy's "power of military command" is a "fundamental principle" which is necessary to bear in mind when examining the factual background to the plaintiff's claim and "the actual contractual promises made in the Training Contracts", and, accordingly, the sum of damages that the Group Members were entitled to.
[8]
Principles of Law Relating to the Loss of a Chance
It is convenient at the outset to identify the principles of law relating to an award of damages for loss of a chance.
In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-643; [1990] HCA 20, Deane, Gaudron and McHugh JJ said:
"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach."
Their Honours went on to explain that the approach is different in cases concerning past or future hypothetical events:
"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 of hypothetical effect of physical injury or degeneration are not commonly susceptible or 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. … [U]nless the chance is so low as to be regarded as speculative… or so high as to be practically certain… the court will take that chance into account in assessing the damages. … 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."
Malec was a claim in negligence for damages for economic loss. In the following year, the High Court decided Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54, a case in which the respondent company had sued the Commonwealth for breach of contract. At page 80, Mason CJ and Dawson J set out general principles relating to an award of damages for breach of contract, including that the general rule at common law is "that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed": Robinson v Harman (1848) 1 Ex 850 at 855; 154 ER 363 at 365; Wenham v Ella (1972) 127 CLR 454 at 471; [1972] HCA 43. Their Honours continued:
"The award of damages for breach of contract protects a plaintiff's expectation of receiving the defendant's performance. That expectation arises out of or is created by the contract. Hence, damages for breach of contract are often described as 'expectation damages'. The onus of proving damages sustained lies on a plaintiff and the amount of damages awarded will be commensurate with the plaintiff's expectation, objectively determined, rather than subjectively ascertained. That is to say, a plaintiff must prove, on the balance of probabilities, that his or her expectation of a certain outcome, as a result of performance of the contract, had a likelihood of attainment rather than being mere expectation."
In Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 350; [1994] HCA 4, a suit brought under the Trade Practices Act 1974 (Cth), Mason CJ, Dawson, Toohey and Gaudron JJ cited with approval the passage from Malec extracted above and wrote that:
"… damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s. 52(1) [of the Trade Practices Act], should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued."
At [16] above, I noted that Bell P (as his Honour then was) discussed the authorities regarding the assessment of damages for loss of opportunity on the appeal in this matter: see the Appeal Judgment at [202]ff. It is useful to extract parts of his Honour's reasons given their direct relevance to the current issues:
"[202] There are peculiar difficulties associated with the assessment of damages for loss of opportunity and the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts: Sellars at 355. These difficulties are in part accommodated by the approach to the assessment of damages that only requires there to be established on the balance of probabilities that there was loss of an opportunity of some value but does not require it to be shown that the likelihood of that opportunity being realised was greater than 50%: Sellars at 355. Sellars drew on Malec … where Deane, Gaudron and McHugh JJ said (at 643) that '[t]he future may be predicted and the hypothetical may be conjectured'.
[203] In [Amann] …, Mason CJ and Dawson J said:
'The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the "assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation". Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.' (Footnotes omitted)
[204] Menzies J's famous observation in Jones v Schiffmann (1971) 124 CLR 303; [1971] HCA 52 was also referred to by Toohey J in Amann at 138. Toohey J also made reference to the observation of Sir Garfield Barwick in Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625 at 636; [1981] HCA 3 that 'in many cases' damages are 'no more than an approximation lacking in mathematical or economic accuracy or sufficiency'.
[205] …
[206] It is not essential for a trial judge assessing damages for loss of a chance to nominate a particular percentage of probability to be attributed to the prospect of the chance being realised, and to insist on this would be prone to artificiality. A global approach not requiring the specification of particular percentages or degrees of probability or possibility was endorsed as acceptable by this court in Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 at [147]. In Malec at 640, Brennan and Dawson JJ said:
'… 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.'
[9]
Terms
As I briefly explained at the commencement of this judgment, each group member in these proceedings entered into a Training Contract with the defendant. The defendant entered into those contracts as the "Department of Defence" trading as the Navy, specifically in its capacity as the "employer" of the group members, who were all enlisted sailors in the Navy. Each Training Contract was, except for information personal to the group member, in identical terms.
The Training Contracts regulated the relationship between the Navy, as employer, and the group members, as employees. It required the parties to do things with reference to a Registered Training Organisation ("RTO") which, in this case, was also the Navy but in a separate capacity.
The Training Contracts were all signed in Victoria and were regulated by Victorian law, particularly ETRA. The statutory training authority at all relevant times was the Victorian Skills Commission, with whom the defendant lodged the Training Contracts after they were signed. (The Commission has since been replaced by the Victorian Registration and Qualifications Authority.)
The Training Contracts were in standard form, as required by s 5.5.10 of ETRA. They imposed obligations on the Navy including to:
1. "negotiate and sign a Training Plan with the chosen RTO as required by the [Victorian Training Authority]";
2. "employ and train the [group member] as agreed in [the] Training Plan and ensure the [group member] understands the choices that he/she has regarding the training";
3. "provide the appropriate facilities and experienced people to facilitate the training and supervise the [group member] while at work, in accordance with the Training Plan";
4. "make sure the [group member] receives on-the-job training and assessment in accordance with [the] Training Plan";
5. "provide work that is relevant and appropriate to the vocation and also to the achievement of the qualification referred to in [the Training] Contract";
6. "release the [group member] from work and pay the appropriate wages to attend any training and assessment specified in [the] Training Plan";
7. "work with [the] RTO and the [group member] to make sure [the Navy] follow[s] [the] Training Plan, keep training records up-to-date, and monitor and support the [group member]'s progress"; and
8. "let the [Victorian Training Authority] and the RTO know within five working days (or when the [Victorian] legislation requires, if this is different) if [the] Training Contract has become jeopardised".
The Training Contracts signed by the group members who appeared at this hearing were prepared electronically so that certain fields of the standard form contract were already filled when they were presented to the group members to complete and sign. Importantly, those completed fields included the following:
"Apprenticeship/Traineeship Details
1 Title and level of qualification
Certificate 4 in Engineering
2 National Qualification Code
MEM40105
…
4 Nominal term of Training Contract
… (months) 48
[10]
"Nominal Term"
In order to determine the point in time at which the group members could have expected to attain a Certificate IV, it is necessary to fix the term of the Training Contracts. The plaintiff said that the term was four years and argued that the Court of Appeal had so found when Bell P wrote, at [18] of the Appeal Judgement that "the '[n]ominal term' of the Training Contract was stated to be 48 months. This was in substance a four-year apprenticeship". His Honour repeated at [159] that "the Training Contract was for a four-year period".
Prior to the commencement of this hearing, for reasons which I gave in Searle v Commonwealth of Australia (No.5) [2022] NSWSC 119, I rejected evidence which the defendant had proposed to lead from witnesses about statements made to individuals before they signed their Training Contract, which were at odds with the Training Contract terms, and which were relied upon to suggest that the group members would not attain a Certificate IV within the 48-month term.
I adhere to the view I articulated in those reasons that the contractual wording identifying the 48-month term of the Training Contract gives rise to no ambiguity whatsoever. At [67] I said:
"The 48-month period is the term nominated by the parties to the contract, which was approved by the relevant Training Authority. The fact that the contract may, at some time in the future, by agreement between the parties, be extended and that extension approved… would depend on future facts. In this case, it was not contended that those future facts arose. On the contrary, the finding of breach suggests that the breach occurred well before the Nominal Term had been reached and, as senior counsel [for the defendant] accepts, without any request for an extension of the term of the contract being made."
I have concluded that terms of the Training Contract are unambiguous and plain. They mean that the group members could have expected to attain a Certificate IV within 48 months from the date their Training Contract commenced. The opportunity which they lost as a result of the defendant's breach was the opportunity to seek employment, having attained a Certificate IV, four years after their Training Contract commenced.
This conclusion is also consistent with the findings in the Appeal Judgment at [18] and [159].
As will become clear, in some cases as a result of matters outside the control of either party such as those relating to injuries sustained by group members which prevented them from completing training or seeking employment, the opportunity may not have been realised within the four-year period. In those circumstances, any likely delay will need to be taken into account in determining when the loss of chance occurred, and the value of that lost chance.
It will also be necessary to take into account when assessing the value of any opportunity lost by the group members, such other ordinary vicissitudes of life which may have precluded each group member from realising the opportunity which was lost to them.
[11]
Breach
I repeated the Common Questions and the answers which have been given by this Court at [17]-[18] above. The answers to Common Questions 7 and 18 make clear that this Court has decided that the defendant did in fact fail to provide Training Plans, and arrange to have them signed, contrary to the obligation described in [54(1)] above. This clearly constituted a breach of the Training Contract.
The answer to Common Question 8 reflects Fagan J's finding that the defendant failed to take steps to provide training towards attaining a Certificate IV. In a passage from the Trial Judgment partly quoted by Bell P in the Appeal Judgment (at [20]), Fagan J made the following assessment of the defendant's conduct:
"[47] … [D]uring the three years after the Training Contract was signed not only had the Navy failed to propose, negotiate or agree a Training Plan [something required by the Training Contract] to enable [Mr Searle] to attain a Certificate IV in Engineering but it had proceeded to train him to its own requirements without attempting to satisfy those of the Certificate IV. If any of his attainments under the MT2010 Log happened to coincide with units of competency in the specification for the Certificate IV in Engineering, they could be counted towards that qualification. … [S]uch progress towards a Certificate IV would be purely incidental. … Certainly there was no supervision or direction of him towards systematically working through the Certificate IV competencies."
Whilst it is true that Fagan J declined to answer other questions proposed by the plaintiff as common about further detailed aspects of the breaches allegedly committed by the defendant, that does not mean that Fagan J was convinced that the defendant had not so breached the Training Contracts. In fact, Fagan J thought those other questions to be repetitive of Common Question 8 and therefore considered it was not necessary or useful to answer them: the Common Questions Judgment at [14]. In coming to that view, Fagan J recognised the following at [12]:
"Although such evidence of breach as was adduced in the hearing was directed to the case for the plaintiff there was ample evidence that the defendant breached the training contracts with other Group Members in the same respects as it breached the Training Contract with the plaintiff. Most breaches flowed from the defendant's failure to create Training Plans for the Marine Technicians ("MTs"). The defendant admitted that failure on the first day of the hearing. Reports and letters generated during the Navy's review of the MT2010 program in 2013-2014 (see [the Trial Judgment] at [48]-[58]) contain admissions of a general nature that the defendant did not train the Group Members towards attainment of the Certificate IV as required under the training contracts." (emphasis added)
And, clearly, the defendant breached the Training Contracts by repudiating them, as acknowledged by the answer to Common Question 20 and as explained by Fagan J in the Trial Judgment at [48]-[58].
In my view, it is not now necessary to determine whether and to what extent the defendant breached the Training Contracts in any way other than by failing to provide and sign Training Plans, by failing to take steps to provide training towards attaining a Certificate IV, and by repudiating the Training Contracts. The simple fact is that Fagan J found the breaches, that finding was not disturbed on appeal, and it is now the role of this Court to determine the damages payable caused by the breaches of the Training Contracts with respect to nine individual group members. It does not matter for the purpose of the assessment of damages whether the defendant breached the Training Contracts in each of the additional ways particularised by the plaintiff at [26]‑[27] above. Accordingly, it is unnecessary to further consider those matters in the context of identified breaches of contract.
The nature of the defendant's breach which has been established, however, does affect the assessment of damages. The plaintiff is right to point out that the Navy's failure to provide Training Plans means that the hypothetical training pathway that would have been followed is less clear than it would otherwise have been. But, in my view, the likelihood that each group member would have been trained in a particular trade pathway is not so low as to be regarded as speculative.
I reject the proposition put by the defendant that it was only ever going to train the group members in "general Navy capabilities" and that it cannot be sued for not providing training in a particular pathway. In my view, the evidence clearly supports a conclusion that the Navy was intending to and did seek to train the members of the MT2010 cohort in one of four identified specialised pathways: electrical fitting; diesel fitting; refrigeration and air conditioning; and fabrication. The Navy's own documents indicate that it "developed, approved and implemented" training courses in these pathways specifically "to meet [its] maintenance capability requirements". The fact that the "Australian Apprenticeship Sign-up Forms" which I described at [39] above, which referred to the "occupation being worked towards" as a "Fitter (General)", were signed at the same time as the Training Contracts does not alter this conclusion. Nor does the plain reference to a "Certificate IV in Engineering" in the Training Contract, within the field for the "title and level of qualification", mean that specialised training pathways were not going to be provided.
The evidence of Mr Heritier, who was called by the defendant, established that these more specific trade streams were used by the Navy for qualification for a Certificate III in Engineering. They were Electrical Fitting, Diesel Fitting, Refrigeration and Air-Conditioning and Fabrication and Welding. Since the Certificate IV in Engineering qualification was superior to that of a Certificate III, then I do not doubt that the training which would have been made available in the Certificate IV would have mirrored, but at a superior level, the trade streams followed in the Certificate III qualification. It would make no sense for the Navy to introduce at the Certificate IV level a completely different trade for an individual. This approach was not available to be proved in evidence because, in breach of the Training Contract, the Navy did not even complete a Training Plan which would have laid out the trade pathways which would have been made available in the Certificate IV training. As well, the four trade pathways determined by the Navy for qualification for a Certificate III represented the skill capability required by the Navy.
Mr Andrew Black, a witness called by the defendant, said in cross-examination that a flow chart which showed the proposed MT2010 cohort's training included trade streams considered by the Marine Technician team to be appropriate to the Navy trade requirements and were to be taught as a part of the Certificate IV training. I accept his evidence which was, in substance and effect, contrary to the defendant's submissions, and which satisfies me that the group members would have obtained their Certificate IV with a specialised trade stream.
I accept that, as a matter of principle, evidence of roles in a particular industry may be relevant to consider in valuing the opportunity which has been lost by the group members. The degree to which it is likely that a group member may have obtained a role in a particular industry depends on that group member's individual circumstances. For example, evidence which suggests that a group member was interested in training and working in a particular field or had received more training in one field or another, may relevantly tend to increase the chance that that group member would have sought employment in that field. And, in accordance with the principles articulated in McCartney v Orica Investments Pty Ltd at [157], that chance may be assessed generously to avoid the defendant obtaining too great a benefit of the doubt arising from any uncertainty which its breach has caused. Had there been provided for each group member a Training Plan, this issue would never have been in doubt. But the Navy did not do what the contract required and ought not now benefit from any uncertainty about specialised training paths.
[12]
Part Performance
Although it is not necessary to determine all of the ways in which the defendant breached the Training Contracts, it remains relevant to consider the extent to which the defendant partly performed its obligations. That is because the value to each group member of the lost opportunity to seek employment, having attained a Certificate IV, partly depends on what they were able to earn without having obtained a Certificate IV, which in turn may have been affected by the training which the Navy did provide.
The Court heard detailed evidence of the competencies which each group member was assessed to have achieved. Those assessed competencies were recorded in an "[Australian Defence Organisation] Service Record" which was kept for each group member. In addition, the group members kept a "Competency Journal" in which they recorded the competencies they had attained.
In my view, the training which the Navy did provide may have affected the actual earning capacity of group members once they were discharged. The extent to which that training increased a group member's earning capacity is most easily observable in the context of claims by group members who remained enlisted in the Navy. As they were trained by the Navy, they were promoted and received increased earnings. However, it may be the case that the training which a group member received may have also had some effect upon their earnings in a civilian role.
It may have been possible to establish by evidence that the training which was provided, and which led to the group member having a particular competency, may have actually increased a group member's earning capacity. But no such evidence was led by the defendant. Nor did the defendant lead any evidence which convinced me of the submission referred to at [42] above, namely that a partly completed course of training towards either a Certificate III or Certificate IV beneficially affected the earning capacity of any group member, in any discretely identified sum, or quantifiable amount.
I reject the proposition advanced by the defendant that the value of the training actually provided may be determined by reference to the units which remained to be completed in order to attain a Certificate IV. It is not the case that the earning capacity of each group member was only impaired by the degree to which the defendant failed to train them in accordance with the Training Contracts. Rather, as I have said, the group members have lost an opportunity to seek employment having attained a Certificate IV. The defendant is liable as a consequence of its breach to compensate the group members for the value of that lost opportunity, not for some degree of impairment in the quality of their earning capacity.
Furthermore, as the plaintiff pointed out, the defendant did not plead that the plaintiff had failed to mitigate his loss. The consequence of that failure to plead, in my view, is that the defendant cannot now argue that it owes a lesser amount in damages because a group member was "closer" to completing a course of training which would enable them to attain a formal qualification, because the underlying proposition is that the group member should have undertaken further or alternative training to obtain that qualification and acted unreasonably in failing so to do.
[13]
Certificate IV in Engineering
The value of the opportunity lost by the group members in this case depends on the value of having a Certificate IV. It is therefore necessary to understand and identify the content of a Certificate IV and consider the likely impact it may have on a person's earning capacity.
A Certificate IV was described in this way as a:
"qualification [which] has been specifically developed to be delivered to people who are existing engineering tradespersons or delivered to apprentices in an Engineering Trade who at the outset choose to study at a higher level as part of their apprenticeship".
To attain a Certificate IV qualification, a trainee is generally required to complete four years of study, which involves a combination of "on the job" and classroom learning. They must complete a mix of core units, specialisation elective units and other elective units, to a total of 132 units. Because there are over 300 units available to study, any one person who has attained a Certificate IV may end up with a very different set of skills compared to any other person with a Certificate IV.
A person with a Certificate IV may attach a qualification "descriptor" to identify the particular skills they obtained while completing their study. Such descriptions would, I am satisfied, include the four identified trade streams which I earlier described.
The rules which govern the use of such descriptors are flexible and as such descriptors may not by themselves adequately reflect the particular skill set possessed by the person.
The expert evidence established that many roles, including those identified by Mr Hunter, required applicants to have certain qualifications. In some cases, an applicant may have been able to secure a similar role with either a Certificate III or a Certificate IV, although the fact that one applicant has a Certificate IV may decisively secure them the job in favour of another person who only has a Certificate III.
The evidence also suggested that for some employers the mere qualification of a Certificate IV was less important than the actual skills which an applicant held.
As I have said, the parties agree that the lost opportunity to seek employment with a Certificate IV is of some value. In my view, the evidence establishes that it is of significant value. A Certificate IV is a qualification obtained after four years of training and learning which enables a person to seek employment in a much wider range of roles, many of which are highly skilled and well‑remunerated. Furthermore, for the reasons I gave at [72] above, the likelihood that each group member's Certificate IV would involve specialist training in one or another pathway, and would have attached a pathway descriptor, depends on their personal circumstances, which I will come to. I accept that that specialisation will in turn affect the range of jobs which may have been available to group members, had they attained their Certificate IV in accordance with their Training Contract.
[14]
Approach to Assessing Damages in this Case
I set out the principles which are to be applied in cases such as these at [46]‑[50] above. It is necessary now, having considered the general factual circumstances of the group members' claims, to set out the general approach I will take in assessing the individual claims. This involves some repetition of earlier material.
In this case, the opportunity which was lost by the group members was the opportunity to seek employment and earn income having attained a Certificate IV pursuant to the Training Contract. The opportunity was lost by each group member at the time of the defendant's breach, so it is to be valued as at that date. However, the value of the opportunity is derived from earnings which the group member could have expected to earn in the future, i.e., at a time after the date of breach, and on the basis that the defendant would have fulfilled its contractual promise.
In most cases, those future earnings could have been expected to begin flowing 48 months after the relevant Training Contract commenced. However, there will be occasions where a group member's injury or some other circumstance would have delayed the realisation of the opportunity. And, in any event, I will need to take into account the ordinary vicissitudes of life which may have prevented the group member from attaining a Certificate IV or seeking employment, either at all or else in a timely fashion.
The defendant admits that the lost opportunity has some value. I will come to determine the value of the opportunity which was lost by each of the individual group members who have appeared at this hearing. It will require me to hypothesise the various possible outcomes which may have been realised if the defendant had fulfilled its obligations under the Training Contracts. It does not require me to find that the group member was more likely than not to realise any of those opportunities, so long I am satisfied that the chance that they would have realised the opportunity is not so low as to be regarded as speculative.
Mr Hunter gave evidence of what the group members could have earned in one or more particular roles, if they had attained a Certificate IV pursuant to the Training Contract. He explained that in completing his research for the purpose of preparing each report, he reviewed six to eight enterprise agreements for organisations which suited the assumptions he was given about the group member's likely Certificate IV pathway and also the group member's preferred region of residence. He generally preferred large organisations on the basis that they were more likely to present actual opportunities for work. He also preferred to focus on what he described as "above average" opportunities because his opinion was that the group members, with a Certificate IV and Navy experience, would be competitive applicants for such roles.
I accept that his evidence can be used for the purpose of determining what each group member could have earned had they sought employment with a Certificate IV. Clearly, he did not give, and could not have given, evidence of what each group member would have earned if they had attained a Certificate IV. Nor could he, or did he, give evidence about the impact of income tax on the possible earnings which he considered. However, even if the group members had been able to take up the opportunity to seek employment having attained a Certificate IV, the hypothetical outcomes which may have eventuated are much broader and are many times more numerous. In my view they may include the following, depending on the individual group member's circumstances:
1. the group member may have taken a civilian role substantially similar to that identified by Mr Hunter in his report;
2. the group member may have taken another civilian role which paid more or less than the particular role identified by Mr Hunter;
3. the group member may have remained in the Navy and been promoted essentially in accordance with the timeline identified by Mr Hunter in his report;
4. the group member may have remained in the Navy and been promoted according to a timeline which is different to that identified by Mr Hunter; or
5. the group member may not have secured employment having been discharged from the Navy, even with the Certificate IV.
The defendant tendered evidence of the rates of pay which are payable under the relevant Award for those with a Certificate IV in Engineering. It sought to rely on these as a "low point of possible wages" to be compared with the "high point" identified by Mr Hunter. However, there is no evidence that any employer was offering employment at the Award rate at around the time any of the group members would have been seeking employment. In final submissions, senior counsel for the defendant submitted that it would be appropriate if the Court regarded the Award as an appropriate guide, which would be increased by an uplift. This was seemingly to reflect the absence of any evidence that the Award was being used in the marketplace as the remuneration actually being offered by one or more employers.
In the absence of evidence being led by the defendant about what other civilian roles might have been taken by a group member, or what other timelines for promotion might have been followed, or evidence about average or median wages in any particular industry (or other similar such measures), the only evidence available to consider any hypothetical scenario is that of Mr Hunter. Otherwise, I would be engaging in speculation. Whether or not the role identified by Mr Hunter is the hypothetical "high point" will depend on the circumstances of each individual. The chance that the group member would have realised that outcome in accordance with the timeline identified by Mr Hunter, depending on those circumstances, is a factor properly to be taken into account in determining the value of the opportunity which was lost as a consequence of the defendant's breach.
I accept that not all jobs on offer in the marketplace placed value on an application being in possession of a Certificate IV. A number of witnesses called by the defendant gave evidence to that effect. However, the existence of the Industrial Award, which recognises that an employee with a Certificate IV is entitled to a higher wage than one without, the fact that the Navy paid an increased salary to a sailor with a Certificate IV qualification, and the evidence of Mr Hunter about the range of salaries paid pursuant to the Industrial Agreements which he identified, all combine to persuade me that across the broad spectrum of industries described in the evidence, it is overwhelmingly more likely that there would be many more opportunities for work in employment which valued the group members having a Certificate IV than not having one. I do not regard the defendant's evidence that the Certificate IV was not an advantage with some employers as being of any real assistance to me.
As I explained at [72] above, the personal circumstances of each individual group member may affect the likelihood of them realising a particular opportunity by securing a job in a particular organisation or industry. Their aspirations and life plans are relevant to take into account. In this regard, I consider that decisions made by group members later in time than the defendant's breach are relevant to take into account because it may form the basis for an inference that the group member had particular aspirations or plans before, or at the time of, the defendant's breach and as well at the time they would have expected to complete their Certificate IV. Such decisions may also provide a guide to the extent of the individual's work capacity, and potential employment choices.
For the same reason, the personal decisions of particular group members not to seek employment, for example because they have moved to a particular region or because they have taken on parenting duties, may affect the likelihood that they would have realised the value of the opportunity which they lost. The plaintiff submits that these personal decisions have depressed actual earnings while masking true earning capacity. The plaintiff submits that, in some cases, the value of hypothetical earnings ought be discounted by the actual earnings which the group member would have earned, but for the personal decision, unconnected with the defendant's breach, which has had the effect of depressing the person's actual earnings.
I take a slightly different approach. It is true that, generally speaking, the evidence was that the personal decisions made by these group members were mostly unconnected with the defendant's breach and were very likely to have been made in any event, regardless of the defendant's conduct and breach. However, in other cases, it may be that the personal decisions, for example about parenting or about moving to a particular region, were affected by the defendant's breach. Hypothetically, for example, a parent may have chosen to take on a greater share of home duties - and not seek to work - precisely because they had not been trained by the defendant, and because their partner was in fact earning relatively greater wages.
In my view, the correct way to account for these personal decisions is to adjust the group member's hypothetical earnings by an amount which reflects the possibility that the same decision - not to seek to work - would have been made if the group member had received the benefit of the opportunity which they have lost. If the personal decision is totally separate from the defendant's breach, the effect is substantially the same: the damages payable are reduced. However, the course which I have adopted is, in my view, a course which is less likely to lead to an erroneous calculation of the value of the lost opportunity.
In theory, the opportunity to seek employment having attained a Certificate IV may be of some value to the group members until they retire. Many of the group members are young and therefore the present value of that lost opportunity may be very great. With reference to the personal circumstances of each group member, their calculated hypothetical earnings and their actual earnings, the plaintiff submitted that future economic loss, beyond the date of hearing, ought be estimated and included in any calculation of damages. I accept that, as a matter of general principle, the value of the lost opportunity may be calculated with reference to hypothetical earnings into the future.
The plaintiff submits that damages reflecting lost earnings, which could have been expected to be earned after the date of hearing, may be calculated by multiplying the average difference between yearly hypothetical income and actual income by the number of years until the group member can expect to have fully caught up to expected earnings. I prefer a method by which I will estimate future earnings in the hypothetical scenarios where the group member has been working with the benefit of the Certificate IV, and future earnings which the group member presently expects to earn. I will base my assessment on the evidence available, including in relation to the trend of increases in earnings.
In any event, I accept the defendant's submission that each group member's earning capacity is neither static nor permanent. It will change over time, depending on an unknowable range of factors, including the training and experience they gain and the conditions of the labour market. It is therefore appropriate to recognise that, over time, the value of the lost opportunity referable to hypothetical earnings in any particular year will diminish. For the avoidance of doubt, however, I refer to what I said at [78] above and note that I have rejected the defendant's submission that damages ought only be allowed which reflect a short period of reduced earning capacity, during which the group members may have sought additional or alternative training to complete their qualifications. That is not the appropriate approach to the assessment of the value of the lost opportunity.
It is to be noted that in each of the reports of Mr Hunter about individual group members, he recorded that the remuneration which he calculated did not include any monies earnt by way of overtime, shift allowances, tool allowances or annual leave loading. Mr Hunter made calculations of the value of these allowances based upon the particular workplace agreements and having made some assumptions about the extent of overtime and shift work likely to be undertaken.
I approach this exercise on the basis that whilst no precise monetary qualifications can be made, the fact that a particular job of the kind identified with the possible earnings calculated by Mr Hunter may in fact have provided the group member with a larger income, is a factor to be taken into account and weighed up when considering the value of the lost chance. It is also a relevant consideration when assessing whether, as the defendant submitted, the loss of earnings assessed by Mr Hunter was in fact at the top of the range of potential earnings. It goes without saying that I have not, in each group member's case, simply increased the value of their lost chance by a percentage to reflect the possibility of additional remuneration for these possible extra allowances and earnings.
Mr Hunter's calculated hypothetical earnings do not include any amount which would have been payable in accordance with the statutory superannuation guarantee. I accept that it is necessary to factor into the value of the lost opportunity the corresponding lost employer superannuation contributions which could be expected to be paid in connection with any lost earnings. The plaintiff proposes that an amount of 9.5% be added to the lump sum difference between expected earnings and actual earnings. It is appropriate, rather than allowing a precise percentage, to keep in mind that the earnings for those with a Certificate IV, either in the hypothetical circumstances valued by Mr Hunter, or in any available earnings under the Industrial Awards tendered by the defendant, do not include any uplift for obligatory employee superannuation contributions. It is appropriate to take that uplift into account as a factor in assessing the overall value of the lost opportunity.
Interest is payable on the damages to be assessed with respect to each group member from the date of the expected conclusion of each of the Training Contracts (because that date represents the first time that any breach of contract could give rise to the possible receipt of income earnt by reason of being qualified to hold a Certificate IV) until the date of judgment, in accordance with s 100 of the Civil Procedure Act.
In closing submissions, counsel for both parties raised the issue of the taxation treatment of awards of damages in these proceedings. If the plaintiff was taxed on receipt of any award, there was a question as to whether I might need to undertake an additional step or calculation to "gross-up" the awards of damages to take into account the taxation treatment. Following the hearing, I invited the parties to file supplementary written submissions on the subject.
In those submissions, the defendant, on the one hand, submitted that the Court does not need to undertake any such additional steps or calculations on the awards of damages. Its position is that any award of damages in the circumstances of this case referable to the loss of earning capacity will not be taxable, on the basis of an exemption to capital gains events. The defendant referred to s 118-37 of the Income Tax Assessment Act 1997 (Cth), and to a Taxation Ruling issued by the Australian Taxation Office which appeared to support its position, TR 95/35. The defendant submitted that the Court, in these reasons, should make various indications or determinations on various taxation issues, and that the parties should then be given a reasonable opportunity to consider, and if necessary be heard on, the taxation implications of the Court's reasons. The plaintiff, on the other hand, submitted that it was appropriate to award damages by way of a grossed-up sum given the uncertainty of how or if the awards of damages will be taxed.
In the circumstances, the Court would benefit from further submissions on the impact of taxation on the awards of damages in these proceedings, and whether I might need to undertake an additional step or calculation to "gross‑up" the awards of damages to take into account any sum which may be payable by way of taxation. In making those submissions, the parties will now have the benefit of the whole of these reasons.
[15]
Individual Assessments
I have set out the general principles and approach that I will take to assess the damages which are payable to each of the group members who appeared. I now turn to their individual circumstances and will proceed to reach a conclusion with respect to each of them.
[16]
Clayton Searle
I described the procedural history of the damages assessment which was made with respect to the plaintiff by Fagan J, and then left undisturbed on appeal, at [8]-[16] above. It is worth noting here again that Fagan J assessed the damages incurred by the plaintiff to be $60,000. Judgment has been entered in favour of Mr Searle. No further assessment of his damages is required.
[17]
Personal Circumstances
Patrick Burnett enlisted in the Navy and commenced Recruit School on 17 January 2011, shortly before his 18th birthday. He completed Recruit School on 19 June 2011 and commenced Category School the following day.
Mr Burnett signed a Training Contract on 15 September 2011 which was agreed to have commenced on 20 June 2011. Its term was 48 months, such that the completion date for the apprenticeship was to be 19 June 2015.
Following the completion of Category School, on 13 February 2012, Mr Burnett was posted to the Fleet Support Unit at HMAS Kuttabul ("FSU Kuttabul"). He was then posted to HMAS Waterhen between March and May 2012, after which time he returned to FSU Kuttabul.
At the FSU, he was initially tasked with painting gangways. He disliked the work and accordingly requested to work in the electrical department. As a result, from May 2012, he spent three months changing capacitors. His evidence is that there was not a great deal of electrical work to be done, and he notes that he was not given any substantial training. He says he was not able to complete any competencies within his Competency Journal. He describes spending his days at the FSU playing cards and reading newspapers with other sailors in his cohort.
During his short-term deployment to HMAS Waterhen, Mr Burnett was put in the earth fault finding and remediation team and performed day to day tasks which included assisting with electrical maintenance and repairs on ships. He describes being dissatisfied with Navy life because he was being tasked with unskilled work and because he was unable to work towards completing his Competency Journal.
In March 2012, as a consequence of his disappointment with respect to the lack of training he was receiving, he made enquiries about a potential application to join the Royal Australia Air Force ("RAAF"). He eventually made such an application, although it was refused in September 2013.
On 30 August 2012, Mr Burnett suffered a knee injury and was classified as medically unfit to be posted to any seagoing vessel, also known as a "J31" classification. He was unable to attend to any duties for a period and, after he received surgery to his knee, he was required to wear a knee brace and walk on crutches. However, on 29 October 2012, he was posted to the Personnel Support Unit ("PSU"), where he performed mostly administrative tasks. He was not given much substantive work and he could not progress any competencies. In cross-examination, he said that despite his medical classification, he could not understand why he did not receive training during this period. He was medically cleared for full duties on 13 June 2013.
On 11 November 2013, he was posted to HMAS Benalla in Cairns as a "joy rider", which means that he was an "extra hand" for any ship with a spare bunk. During this posting, he received relevant training and experience towards achieving his Marine Services Technician ("MST") qualification and his Engineering Harbour Watchkeeping Certificate 1 ("EHWC1"). His work involved maintaining engines, electrical systems and sewage systems.
In mid-2014 he received the news that the defendant would no longer be providing him with training to attain a Certificate IV in Engineering. He took up the alternative opportunity which was then presented to him, and enrolled in a course to attain a Certificate III in Electrical Fitting, for which he received training at HMAS Cerberus and TAFE Ultimo. He also received training provided by the Navy Technical Training Unit East at HMAS Kuttabul.
On 3 March 2015, Mr Burnett was posted to HMAS Adelaide, a ship which at that time was still under construction. Until it was commissioned in December 2015, he spent time training in a simulator built for the new ship. He completed the competencies required for his MST qualification, which he obtained on 9 September 2015.
In October 2015, Mr Burnett learned that his wife was expecting their first child. He considered discharging from the Navy for a number of reasons, including that he wanted to avoid being posted to ships or locations away from his family, and also that he was dissatisfied with the training and experience which he had received. He applied to discharge on 17 November 2015, about five months after his Training Contract would have expired.
He made enquiries to join the Queensland Police but did not pursue that employment opportunity because he wanted to build on such skills as he had developed in the Navy.
On 4 October 2016, he took leave from the Navy without pay and commenced work as an apprentice electrician for Sydney Water, although he was actually employed by an organisation called Ventia, which was arranged through Melbourne East Group Training. He received some credits for recognition of prior learning for the work he had done at TAFE Ultimo, but he was required to restart the practical component of his apprenticeship. On 28 October 2016, he was formally discharged from the Navy.
In early 2017, he moved with his wife from Sydney to Shellharbour and continued to work for Sydney Water as an apprentice electrician.
He attained a Certificate III in Electrotechnology in October 2018, at which point he also obtained his electrician's licence in New South Wales. Thereafter he commenced working as a Solar Installer for Clean Power Australia. In June 2019, he changed employment again and commenced working for Wollondilly Electrical.
In November 2020, he moved to Cairns because his wife was posted there with the Navy. Since then, he has taken on the primary parenting duties and has not worked.
Mr Burnett's tax returns evidencing his income for the financial years ending 30 June 2011 - 2021 were tendered. There is no reason to doubt their accuracy.
[18]
Mr Hunter's Evidence
Mr Hunter assumed that Mr Burnett would have attained a Certificate IV in Engineering in the Electrical Fitting pathway on 20 June 2015 in accordance with the Training Contract he signed. Mr Burnett was in fact posted to HMAS Adelaide at that time.
Mr Hunter's evidence was that having attained the Certificate IV, Mr Burnett would have been promoted to Leading Seaman Marine Technician and would have been awarded the Skill Grade 3, Pay Grade 5. He explained that this promotion would have been in accordance with a directive from July 2013 issued by the Director of Naval Capability Management. This was because, by 20 June 2015 Mr Burnett would have had two years seniority as an Able Seaman, and by that stage would have attained his MST and EHWC1, and relevant trade qualifications at a level higher than a Certificate III.
Counterfactual 1 identified and considered by Mr Hunter was that, on 1 November 2016, Mr Burnett discharged from the Navy and sought work using his Certificate IV qualification in Sydney or Wollongong. That date was chosen because it was the around the date Mr Burnett actually discharged from the Navy, partly as a result of his wife's pregnancy.
Mr Hunter's resulting calculations of Mr Burnett's income capacity assumed he commenced working with ARA Electrical Engineering Services ("ARA"), at their branch in Wollongong. He explained that there was significant demand for skilled tradespeople in the South Coast region of New South Wales in around 2016 and 2017, mostly driven by the area's concentration of defence industry and infrastructure assets. Mr Hunter had also considered whether Mr Burnett might have worked for a comparable company based in Sydney but preferred the one based in Wollongong because Mr Burnett had in fact moved there in early 2017.
Having identified the role with ARA as being representative of the opportunity which would have been available to Mr Burnett if he had sought work in Wollongong around late 2016, having attained a Certificate IV in Electrical Fitting, Mr Hunter calculated the hypothetical earnings Mr Burnett could expect to have received, according to that organisation's enterprise agreement. Mr Hunter's evidence was that Mr Burnett could have expected to be classified under the enterprise agreement as a Grade 7 Electrical Worker upon commencing employment with ARA.
As earlier described, his calculation was underpinned by the following assumptions:
1. Mr Burnett would have worked 10% overtime hours in addition to his ordinary hours of work, per week, inclusive of call outs;
2. Mr Burnett would have been "on call" for six weeks of every year as part of a rotation system to respond to call outs;
3. Mr Burnett would have performed one month of afternoon shifts and one month of night shifts per year, which attract 15% and 30% loading, respectively.
In order to make those assumptions, Mr Hunter drew on his experience managing human resources in the industry. He explained, for example, that businesses in the trade services sector view overtime as a necessary cost which increases in peak demand periods and decreases in troughs, and which is a more efficient use of resources compared with employing more people. He identified 10% as the average sustainable level of overtime he would expect a workforce to undertake.
Similarly, Mr Hunter's estimates of the time spent "on call", and the frequency of being allocated afternoon or night shifts, were based on his experience preparing rosters in the industry. He acknowledged that he had no knowledge of the practice at ARA for approving overtime, rostering workers to be "on call", or allocating afternoon or night shifts. He also acknowledged that Mr Burnett's personal circumstances, of which he knew very little, may have affected those assumptions.
Counterfactual 2 identified and considered by Mr Hunter was that Mr Burnett remained enlisted in the Navy and was promoted more quickly, on account of his Certificate IV qualification.
Following the promotion described at [130] above, Mr Hunter's evidence was that Mr Burnett could expect to have received incremental increases to his pay every 12 months until he reached a maximum threshold, assuming he met minimum requirements for competency and service.
Mr Hunter did not include, in his calculation of earnings in this counterfactual for Mr Burnett, any allowance for going to sea, given Mr Burnett's desire not to be away from his family.
[19]
Findings
The plaintiff submits that Mr Burnett's unchallenged and uncontradicted evidence was that, despite his knee injury, he was capable of receiving training and gaining onshore experience, for example in a workshop setting, from late October 2012. He says that the defendant has led no evidence that the two‑month period from August to October 2012 would have made a substantive difference to the time in which he could have completed a Certificate IV.
The defendant submits that the consequence of the plaintiff's knee injury and resulting "J31" medical classification is that he was unable to undertake the necessary training towards a Certificate IV for a period of 15 months. The defendant points to the terms of the Training Contract which provide for its term to be extended and says they were inserted precisely for this type of scenario.
In my view, the consequence of Mr Burnett's knee injury is that he was unable to receive training or experience which would enable him to progress towards attaining a Certificate IV for a period of two months. I reject the defendant's submission that he was so unable for a period of 15 months. The evidence does not establish that the fact the plaintiff was classified as being unfit to be posted to a sea-going vessel meant that he was simultaneously unfit to receive any form of training relevant to achieving a Certificate IV. Nor does the evidence establish that Mr Burnett's two-month period of bedrest would have prevented him from completing his apprenticeship within 48 months, had the necessary training and experience been provided to him. The fact is that the defendant did not at any time seek to extend the term of the Training Contract, by two months or by 15 months, by applying to the Victorian Skills Commission or otherwise. However, I do accept that it is reasonable to adjust the likely time for Mr Burnett to have finished his Training Contract by extending it for two months.
The plaintiff submits that because Mr Burnett undertook electrical fitting training while in the Navy, it is reasonable to estimate the value of the lost opportunity by reference to roles which would require a Certificate IV in the Electrical Fitting pathway. The defendant's submission on this point is as I have explained at [37] above, namely there is no basis to find that Mr Burnett (or any other group member) would have attained a Certificate IV in any particular specialisation.
I reject that submission by the defendant at [69] above. In my view, the most likely course would have been for the defendant to train Mr Burnett in the Electrical Fitting pathway. Mr Burnett had expressed an interest in that field, and he had made formal requests at an early stage of his first posting to be reassigned to a role which involved that type of work. As well, he completed training along that pathway, to the greatest extent he could despite the defendant's failure to provide a Training Plan.
I accept that the counterfactuals identified by Mr Hunter reflect two possible outcomes which may have been realised by Mr Burnett had the defendant not breached the Training Contract. I consider that it is reasonably possible that either of them may have eventuated, and I would regard neither of them as representing merely speculative outcomes.
I also accept that it is reasonably possible that, in a civilian role of the type identified by Mr Hunter, Mr Burnett would have worked overtime, he would have been "on call" for parts of the year and he would have been allocated afternoon or night shifts. On the whole, I accept that Mr Hunter's calculation of the earnings which Mr Burnett could expect to have received fairly represents one reasonable estimation of the value of the chance which Mr Burnett has lost.
The defendant submits that the evidence supports a finding that Mr Burnett was most likely to discharge from the Navy after he had attained a Certificate IV. It points to Mr Burnett's early dissatisfaction with Navy life, his persistent attempts to attain a civilian qualification and his aspirations to work for the RAAF. The plaintiff accepts that Mr Burnett's decision to leave the Navy was largely based on factors unrelated to the breaches of the Training Contract, making it likely that Mr Burnett would have discharged about the time when he did, even if the Certificate IV training had been provided.
I agree, for the reasons submitted by both parties, that it is more likely that Mr Burnett would have discharged from the Navy and sought civilian employment. It remains a possibility that he may have remained in the Navy, but that possibility is not of a high order.
I consider it most unlikely that Mr Burnett would have failed to complete the training required to obtain a Certificate IV. I consider it similarly unlikely that Mr Burnett would have chosen not to use the Certificate IV to seek employment. I would apply only a small discount to reflect the chance that Mr Burnett may not have realised the opportunity which he has lost, and to reflect the ordinary vicissitudes of life.
The plaintiff accepts that Mr Burnett's decision to take on parenting duties since he moved to Cairns is not attributable to the defendant's breach. In those circumstances, from November 2020, when Mr Burnett actually earned nothing at all, he could equally have expected to earn nothing in any hypothetical scenario.
The plaintiff submits that Mr Burnett could expect to continue to earn more than he actually does for approximately two years after the date of the hearing. I disagree. His hypothetical and actual earnings have already converged because he has taken on parenting duties, and there is no evidence that he intends to return to work in the near or medium term.
Based upon Mr Hunter's calculations, and with additional allowance for superannuation, and by reference to a period of loss about seven years in total, the plaintiff submitted that a proper assessment of the value of the lost chance was a little under $270,000.
The defendant submitted that the assessment should be limited to a period up to October 2018, by which time Mr Burnett had qualified as an electrician. It submitted that the highest appropriate award for damages was a little under $25,000.
In my view, any opportunity which Mr Burnett had to exploit his earning capacity on the basis that he had qualified for a Certificate IV would be limited to a period of five years from when he is likely to have been discharged from the Navy up until his move to Cairns and undertaking parental duties. I do not accept the defendant's submission of the value of his lost opportunity. First, because the period is too short, and secondly because the rates used do not reflect the reality of Mr Burnett's earning capacity with a Certificate IV qualification.
Taking all of those matters into account and applying a global approach, I assess the damages payable to Mr Burnett to be $125,000.
Mr Burnett lost this valuable opportunity as and from 20 August 2015 when he expected that his Training Contract would have successfully concluded.
As with all of the awards of damages that I will make, the sum of $125,000 does not include any amount by way of interest or to reflect any incidence of income tax on the award. I note that this approach will be followed in all subsequent assessments: namely, there will need to be further calculations and submissions on interest and taxation implications. I will give the parties an opportunity to provide further submissions and calculations on these issues.
[20]
Personal Circumstances
Mr Denton enlisted in the Navy and commenced Recruit School on 22 August 2011. He says he originally enlisted in order to benefit from the training offered to Navy recruits, to obtain a Certificate IV and then to discharge and seek civilian employment. He says he did not intend to remain in the Navy long term, and that he ultimately remained enlisted as long as he did only because he did not want to discharge without any qualifications to rely on when seeking civilian employment.
He completed Recruit School and then commenced Category School on 7 November 2011. On 10 November 2011, Mr Denton signed a Training Contract which commenced that same day. Its term was 48 months, such that the completion date for the apprenticeship was to be 9 November 2015.
After he finished Category School, on 6 July 2012, Mr Denton was posted to the FSU Kuttabul. He says he was not given any substantive work or training while he was posted there, although he acknowledges that he completed some competencies in his Competency Journal.
On 13 August 2012, Mr Denton was posted for a short period of one month to HMAS Tarakan, a landing craft stationed in Cairns. He describes the ship breaking down after spending only two days at sea, after which point it was required to return to shore for repairs. Mr Denton says he was mostly required to complete manual fabrication tasks, and notes that he received no technical training and completed no particularly challenging work.
In September 2012, Mr Denton assisted in sailing a ship from Darwin to Sydney. During this period, he worked as a "shipwright" assisting with general maintenance of the ship and was able to progress various competencies he needed to attain as part of his training.
After that point, he returned to FSU Kuttabul for three months. He completed a short course which would have enabled him to work on Guided Missile Frigate ships.
On 14 January 2013, Mr Denton was posted to HMAS Tobruk, an old Landing Ship Heavy which was undergoing a period of maintenance at that time. While he was there, he was engaged with isolating systems, identifying issues and tagging specific parts which needed to be replaced. HMAS Tobruk was then deployed to Manus Island and, later, to the Philippines to provide humanitarian aid. Despite the significant workload and time spent at sea, Mr Denton says he was unable to progress his Competency Journal. He complains that there was a lack of instructors and assessors on HMAS Tobruk, and that there was a "backlog" of Marine Technicians and Marine Technician Operators who wished to progress their Competency Journals. Nevertheless, on 27 June 2013, Mr Denton was promoted to Able Seaman.
In June 2014, Mr Denton was involved in a motorbike accident in which he broke three of his ribs and lacerated his spleen. He required hospital treatment. When he reported for duty, he was assessed as being "J34", meaning the Navy considered him medically unfit for all work. He was sent home where he rested until the end of August 2014.
In September 2014, Mr Denton's medical rating was updated to "J31", meaning the Navy considered him fit for general duties but unable to be posted to sea. He was able to continue to be trained for his Certificate IV during this period. He was therefore posted to FSU Kuttabul, where he performed a role in Building Services at Fleet Headquarters on Garden Island which involved general maintenance and handyman jobs. Later, he performed a role at Randwick Army Barracks which involved travelling around Australia and assisting soldiers prepare for deployment. His posting at the FSU continued until 9 November 2015.
As a consequence of receiving treatment for his injuries, it was discovered that Mr Denton suffered from thrombocytopenia which is a deficiency of blood platelets. Although he reported feeling fine at that time, he continued to require regular blood tests. It was for that reason that, in March 2015, despite having recovered from his motorbike injuries, he remained classified as "J31". He was referred to a specialist haematologist who reported in June 2015 that Mr Denton's thrombocytopenia was "very mild". The specialist said that aside from conducting a blood test every six months or so, there was nothing to do about the condition. Nor was there any reason to restrict Mr Denton's employment capacity, or his ability to undertake the relevant training for his Certificate IV.
During his posting at the FSU, Mr Denton was informed that the Navy no longer intended to provide training pursuant to the Training Contract. After some consideration, he enrolled in training towards a Certificate III in Mechanical Engineering. Because he had some previous experience working on air conditioning systems onboard HMAS Tobruk, and because he understood that the field involved an element of electrical work which might be valuable in the civilian employment market, Mr Denton chose to focus his study by undertaking a "Refrigeration and Air Conditioning" pathway.
The first intake of Certificate III trainees was in November 2014. However, because Mr Denton had not completed his MST qualification, apparently as a consequence of a lack of instructors and assessors on board HMAS Tobruk, the Navy's policy prevented him from commencing his trade training at that time. That policy was changed in 2015, and so it was not until 9 November 2015 that Mr Denton was posted to HMAS Cerberus and received training towards his Certificate III. Between April and August 2016, he studied at TAFE Ultimo.
On 28 November 2016, Mr Denton was posted to HMAS Newcastle, a frigate. In early 2017, HMAS Newcastle spent three to four months preparing to be deployed to the Middle East. Mr Denton was tasked with assisting the refrigeration department to carry out preventative and corrective maintenance on the air conditioning units. Mr Denton left with HMAS Newcastle to the Middle East in June 2017. During this period, he learned various competencies and attained a number of Navy-specific qualifications, including his MST. He came close to completing the threshold level recorded in his Competency Journal which was necessary before he could sit for his final exam relating to his Certificate III.
On 4 December 2017, Mr Denton returned from the Middle East. He worked to maintain HMAS Newcastle for a short period, before it was redeployed to sea for a period of six weeks from 20 January 2018.
In March 2018, whilst he was on annual leave and skiing in Japan, Mr Denton suffered an ankle injury which rendered him unfit for active service for two months.
On 8 May 2018, he returned to service and was posted to HMAS Kuttabul. In June 2018, the Navy approached him about further training towards a Certificate IV, but it later told him the course would not go ahead. He was dissatisfied with the training that was being provided, and he felt burnt out after his lengthy deployment to the Middle East. He ultimately decided to apply to transfer to the Navy Reserves, which he did on 28 September 2018. His application was approved on 16 October 2018. In cross-examination, he said his reasons for discharging included ensuring stability in his living arrangements, to gain additional opportunities to travel freely, to avoid burnout and to pursue a civilian career. I accept this evidence.
He applied to extend the period of his apprenticeship for his Certificate III by 12 months because he had not completed the competencies necessary to sit the final exam. He received training at HMAS Cerberus in October 2018, and then sat - and passed - that final exam in November 2018. He completed his Competency Journal while onboard HMAS Newcastle in February 2019.
In late 2018, Mr Denton interviewed for a position with Resolve Mechanical, a company which serviced several large commercial clients based in Sydney. He was offered a job with the company on 24 December 2018. One consequence of this was that he was permitted to discharge from the Navy early, an option which he exercised on 15 March 2019. He was formally awarded a Certificate III in Engineering Mechanical Trade (Refrigeration and Air Conditioning) on 21 March 2019.
On 18 March 2019, Mr Denton started in his new role with Resolve Mechanical, which involved maintaining, repairing and servicing large commercial air conditioning units. He says he soon discovered that his Navy experience had not prepared him for civilian work, and he describes struggling to keep up with his colleagues.
On 22 November 2019, Mr Denton ceased working for Resolve Mechanical and took up work in Japan at the ski fields. He returned to Australia on 22 March 2020. Initially, he applied for work in facilities management or heating, ventilation or air conditioning. Although he was offered his old job at Resolve Mechanical and another job in facilities management at Royal Prince Alfred Hospital, he turned both jobs down because he felt that he did not have sufficient experience and that his mental health would suffer if he accepted them. In September 2020, he secured employment near his home on the Central Coast when he commenced working as a cellar door salesman at a winery.
He ceased working at the winery in late January 2021 and commenced working as a veteran support coordinator in February 2021. His role, which he remained in at the time of this hearing, involves supporting veterans suffering financial hardship, unemployment, mental illness or homelessness or who require any other form of social support.
Mr Denton's tax returns evidencing his income for the financial years ending 30 June 2012 - 2021 were tendered. The accuracy of them was not challenged and I accept the details in them.
[21]
Mr Hunter's Evidence
Mr Hunter assumed that Mr Denton would have attained a Certificate IV in Engineering in the Refrigeration and Air Conditioning pathway on 10 November 2015 in accordance with the Training Contract he signed, which was at a time when Mr Denton was in fact posted to HMAS Cerberus and had only recently commenced his Certificate III trade training.
Having attained the Certificate IV, Mr Hunter says that Mr Denton would have been eligible for the award of Skill Grade 3, Pay Grade 5, which would have conferred on him a higher wage while he remained with the Navy.
Mr Hunter considered only one counterfactual scenario with respect to Mr Denton which was based on the hypothesis that Mr Denton would have discharged from the Navy and sought civilian employment in January 2016 in the Sydney or Newcastle areas. Mr Hunter proceeded to calculate what Mr Denton could have earned, based on an enterprise agreement for Star Electrical Co Pty Ltd ("Star Electrical"). Mr Hunter explained that there was a particularly high demand for tradespeople with specialised knowledge and experience in air conditioning and refrigeration around January 2016 and that Star Electrical is a large company which is likely to have presented employment opportunities around that time. Mr Hunter noted Mr Denton's willingness to live and work in Sydney, where employers offer higher wages than on the Central Coast, and also noted that Mr Denton's particular experience in the Navy was more likely to have focussed on system maintenance rather than on construction and installation. Those matters were factored into Mr Hunter's decision to focus on the Star Electrical role.
Having identified the role with Star Electrical as being representative of the opportunity which would have been available to Mr Denton if he had sought work in Sydney around February 2016, by which time he would have attained a Certificate IV which involved some specialised training in air conditioning and refrigeration, Mr Hunter calculated the hypothetical earnings Mr Denton could expect to have received, according to the Star Electrical enterprise agreement. Mr Hunter's evidence was that Mr Denton could have expected to be classified under the enterprise agreement as a "Service Technician".
Mr Hunter's calculations included making an allowance for overtime, on-call work and shift work of the usual kind.
As can be seen, Mr Hunter's assumptions with respect to Mr Denton's hypothetical scenario are similar to those he made with respect to Mr Burnett, as described at [134] above. The evidence which Mr Hunter gave about the basis upon which he made those assumptions, described at [135]-[136] above, is relevant to the assumptions which he made about Mr Denton's hypothetical circumstances.
Mr Hunter included in his calculation 17.5% annual leave loading and a $2.25 per hour worked productivity allowance. Also, Mr Hunter made adjustments each year on the basis that the rates of pay would have increased over time, in accordance with the terms of the enterprise agreement and having regard to the continued demand for tradespeople during the relevant period.
[22]
Findings
At [142] above, I rejected the defendant's submission that the date by which a group member could expect to receive their Certificate IV must be delayed by any period during which they were classified as "J31" or medically unfit to be deployed at sea because they were able to receive training at a shore base. I adhere to that finding with respect to Mr Denton because it seems to me that he was also fit enough - despite his ongoing recovery from his injuries and his thrombocytopenia - to undertake training and gain experience onshore, from September 2014. His evidence is that he could have undertaken trade training, including that which was provided at HMAS Cerberus. I have no reason to doubt that evidence, including because it is clear he was healthy enough to perform general maintenance, and to fly around Australia assisting with the deployment of soldiers. The fact that a specialist haematologist opined in June 2015 that his condition was sufficiently mild to permit him to go to sea meant that it had no impact whatsoever on his capacity to receive training and perform duties whether onshore, or at sea.
However, whilst there is no specific evidence which would suggest that the period of bed rest for about three months after his motorcycle accident would necessarily delay someone from attaining a Certificate IV at the conclusion of a four-year program, I consider that it is appropriate as a matter of common sense to defer the end date of the Training Contract by a three month delay of the final date by which Mr Denton could expect to have attained a Certificate IV.
I will assess damages on the basis that Mr Denton has lost the opportunity to seek employment with a Certificate IV, from 10 February 2016.
I accept the plaintiff's submission that because Mr Denton undertook refrigeration and air conditioning training while in the Navy, it is reasonable to estimate the lost opportunity to earn income from working with a Certificate IV by hypothesising that Mr Denton would have attained a Certificate IV in the Refrigeration and Air Conditioning pathway. He developed an interest in that field when he was posted to HMAS Tobruk, and he later pursued other opportunities for training in that field which were presented to him by the Navy.
I accept that the counterfactual identified by Mr Hunter reflects one possible outcome which may have been realised by Mr Denton had the defendant not breached the Training Contract. I consider that it is reasonably possible that it may have eventuated. Of course, Mr Hunter's assessment is a full value of lost earning capacity rather than a valuation of a lost opportunity.
I also accept that it is reasonably possible that, in a civilian role of the type identified by Mr Hunter, Mr Denton would have worked overtime, he would have been "on call" for parts of the year and he would have been allocated afternoon or night shifts. On the whole, I broadly accept that Mr Hunter's calculation of the earnings which Mr Denton could expect to have received, subject to adjustments reflecting other parts of these reasons including a delayed conclusion of his Training Contract.
I consider it unlikely that Mr Denton would have failed to complete the training required to obtain a Certificate IV. I also consider it unlikely that Mr Denton would have chosen not to use the Certificate IV to seek employment. I would apply only a small discount to reflect the chance that Mr Denton may not have realised the opportunity which he has lost.
The plaintiff proposed that in calculating the value of the lost opportunity, Mr Denton's "actual" earnings should be considered to be those he would have earned if he continued to work at Resolve Mechanical, rather than those he in fact earned while working at the Japanese ski fields, through his subsequent period of unemployment and then while working as a veteran support coordinator. The plaintiff's proposal acknowledges that Mr Denton's personal decisions - to cease working at Resolve Mechanical, to work at the Japanese ski fields; to refuse job offers in the industry on his return, and to work as a veteran support coordinator - have depressed his actual earnings. I am not satisfied that each of these decisions were directly connected with the defendant's breach, but they are not unusual decisions given the position Mr Denton was in at the time.
For the reasons I gave at [97]-[99] above, and in line with the method I employed with respect to Mr Burnett at [150] above, I would rather discount Mr Denton's hypothetical earnings than inflate his "actual" earnings. Because Mr Denton's decisions were at least partly based on his perceived lack of training, I consider it possible that, had the defendant provided training enabling Mr Denton to attain a Certificate IV in accordance with the Training Contract, Mr Denton would have made different decisions and would have remained employed in a role such as that identified by Mr Hunter. As such, I would apply a partial and not total discount to the earnings which Mr Denton could expect to have earned after November 2019.
The plaintiff submits that Mr Denton could expect to continue to earn more than he actually does for approximately two years after the date of the hearing. That submission is based on the plaintiff's approach of inflating "actual" earnings and discerning a trend of converging hypothetical and "actual" incomes. I have not adopted that approach. The plaintiff submits that an assessment of the value of Mr Denton's lost opportunity is a little over $192,000.
The defendant submits that an appropriate period for the consideration of Mr Denton's lost opportunity is limited to two years from 1 April 2017 to 31 March 2019. It submits that the full value of his lost earnings is about $22,000. I reject the defendant's approach. To me it does not approach the valuation of the lost opportunity correctly either as to the period of time during which the opportunity may have been taken up, nor does it postulate a reasonable assessment of the lost opportunity.
On the basis that Mr Hunter's assessment is one of "full value" relating more to lost earnings, it would be an excessive amount to award for the value of a lost opportunity to earn income with the Certificate IV qualification.
Taking these matters and others which call for a significant discount from the high point of Mr Hunter's total assessment into account and applying a global overall approach, I assess the damages payable to Mr Denton in the sum of $80,000. Interest would be payable on those damages from 10 February 2016.
[23]
Personal Circumstances
Elliot Gregory enlisted in the Navy and commenced Recruit School on 16 January 2012. He completed that within about three months and on 2 April 2012 commenced Category School. He signed a Training Contract on 4 April 2012 which was agreed to commence on 2 April 2012. The term of the contract was 48 months and, accordingly, would have finished by 1 April 2016, at which time Mr Gregory's apprenticeship would have come to an end.
Having completed his initial technical training, Mr Gregory was promoted to the rank of Seaman on 16 November 2012, and shortly afterwards was posted to the PSU at HMAS Sterling, south of Perth. There was no available posting to a ship, nor to the Fleet Support Unit at HMAS Sterling, which was full.
At the PSU, Mr Gregory completed small menial tasks such as digging, fixing walls, painting doors and assisting with minor day-to-day repairs.
His first posting to the Fleet Support Unit at HMAS Stirling ("FSU West") occurred on 4 March 2013, where he was tasked to work in the hull fabrication section. He received some basic training in the use of benchtop and electrical equipment and undertook a series of competency evaluations on the use of equipment such as industrial welders and water-cut jets. He also received basic training in Occupational Health and Safety and other competencies. He obtained a Certificate II in Engineering on 30 May 2013. He received no other technical or skill-based training at FSU West.
According to Mr Gregory's evidence, which I accept, whilst at FSU West he did not receive any further training or work on any complex or difficult tasks which would further his skills. Together with other sailors of his cohort, he would often spend days sitting around waiting to be given tasks.
On 3 June 2013, Mr Gregory was posted to HMAS Perth, which is an air warfare destroyer also known as a fast frigate helicopter ship. He joined the ship the day before it was due to sail on a five-month deployment. It sailed initially to Sydney, then North Queensland and through to the Pacific to Hawaii. It then returned to Sydney via New Zealand and Melbourne. He received some training during that posting for competencies of a Marine Technician Operator which involved undertaking preventative system maintenance and carrying out repairs to the sewerage treatment plant, toilets, and pipework. He also undertook some duties in the desalination section.
In late November 2013, HMAS Perth returned to Western Australia for maintenance. During that maintenance period, Mr Gregory assisted by carrying out basic repairs. He did not receive any formal training which contributed towards his qualifications during that maintenance period.
In early December 2013, Mr Gregory's father died suddenly of a heart attack at a comparatively young age. Mr Gregory took compassionate leave to spend time with his family. He subsequently received appropriate counselling. He also learnt at about that time that his partner was pregnant. He had emotional difficulties and was temporarily unfit for duties. He was still grieving in late January 2014.
After his return from compassionate leave, because he was determined to be medically unfit to deploy on HMAS Perth, Mr Gregory was posted to FSU West in February 2014. There, he was tasked with assisting with renovations taking place to the workshop and storeroom in one of the buildings. The only training he received at FSU West was a course in asbestos removal.
The balance of Mr Gregory's time over the next six months or so was unrewarding. He described being at FSU West like being at a "sad place" which had "unhappy people" there. He clearly did not get along well with his superiors. He was described in his personnel assessment for that period as having a "poor attitude" and a "mediocre work ethic". Mr Gregory accepted that he lacked motivation during this period but pointed to the fact that there were no instructors to provide any training, and no work of any worth to be done. It seems to me to be unsurprising that he lacked motivation. Having signed a Training Contract to achieve a Certificate IV in Engineering, he was left at FSU West without a defined role, with training being provided and no instructors to provide any training or guidance.
Like other group members, he was informed on 13 June 2014, by letter from Rear Admiral Uzzell, who was then the head of Navy Engineering, that the Navy would not be abiding by the terms of the Training Contract. The letter from Rear Admiral Uzzell acknowledged that there was a degree of confusion caused by the conflict between the MT2010 Career Scheme Policy and the Training Contract which was signed. It also informed Mr Gregory that the Department of Defence was attempting to resolve "this contract issue". He was told that it was a complex matter and "… once those complexities have been worked through, you will be provided with a detailed plan outlining the Navy's proposal for resolution …". He was told that he would be given an opportunity to discuss his particular circumstances, and his future career management, with the appropriate Naval personnel officer.
The receipt of this letter, together with two other factors, namely the premature and sudden death of his father, together with the fact that his partner unexpectedly became pregnant with their first child, who was born on 27 August 2014, caused a degree of psychological distress to Mr Gregory. However, I am not satisfied that it was that psychological distress which led to his request, first to transfer to the Inactive Reserve and then, in October 2014, to be discharged from the Navy.
There was another factor which in my assessment of the written and oral evidence was the principal matter which contributed to the decision of Mr Gregory to obtain an early discharge.
In the context of spending seven or eight months or so at FSU West where nothing was happening in terms of obtaining any skills training or undertaking any useful work, but rather, as earlier mentioned, together with a group of other members of the MT2010 cohort, essentially sitting around doing little other than reading newspapers and playing games on computers, which largely seemed to be because there were no instructors available to provide any training on equipment which was available to be used, Mr Gregory was called to a meeting with two senior Naval officers and a Chief Petty Officer, to be given an update about training. This meeting occurred in about September 2014. It took place in the presence of six other trainees and the three senior Navy officers. According to Mr Gregory's evidence, the trainees were told words to this effect by Chief Petty Officer Gilmore:
"We have an update for you about your training. You will no longer be receiving a Certificate IV. You will instead receive a Certificate III in Engineering. There will be courses available in Diesel, Electrical, Refrigeration and Air Conditioning, and Fabrication."
Shortly after that was said, Commander Winnerson said words to the effect:
"We expect to see each of you in our offices shortly to sign the new Training Contract."
Mr Gregory records in his written statement that new Training Contracts for Certificate III qualifications were then handed out for the trainees to read and sign.
At that time, unsurprisingly, having regard to the peremptory way in which this matter was approached, Mr Gregory was dissatisfied with the fact that the Certificate IV training had been abandoned and that he would only be provided with a Certificate III. He was also upset at the way he was being treated by his superiors. The treatment recorded by him was certainly inconsistent with that which Rear Admiral Uzzell had suggested would be provided in his earlier letter.
Mr Gregory was not challenged on this account and there was no evidence called to contradict his version of what was said to him at that time. I accept it. As he himself put it, he had become very disenchanted with Navy life and frustrated that he would not be obtaining the qualification that he had understood he had been working towards over the previous two and a half years. He described that meeting and his treatment as being "the last straw" and as a consequence he made up his mind about seeking a discharge.
He was advised that he could get out of the Navy more quickly by using "compassionate reasons" to facilitate his early discharge. I am satisfied that Mr Gregory chose this pathway to his discharge because it was an easy and quick way to achieve what he wanted. His choice of this pathway does not stand against my conclusion above about his disenchantment, causing him to lodge an application for discharge.
Accordingly, on or about 16 September 2014, which was shortly after the meeting described earlier, he signed an application for an early discharge and shortly thereafter underwent a psychological assessment with a Navy psychologist.
In dealing with Mr Gregory's application, the Commanding Officer of HMAS Perth established that what in substance was being sought was an early discharge rather than a request to transfer to the Inactive Reserve. He supported the recommendation for a discharge and declined to endorse any transfer to the Inactive Reserve.
There is no doubt in the contemporaneous documents that Mr Gregory sought to use whatever excuse or reason he could to seek his early discharge. In part, that was because he had anticipated obtaining an employment position with a company called Transpacific. However, ultimately, after obtaining the discharge, that job did not eventuate.
Mr Gregory agreed in cross-examination with senior counsel for the defendant that, by September 2014, he had decided that he did not wish to remain in the Navy. That is consistent with the contemporaneous documents. It was also agreed in his oral evidence that he made that decision because he wanted to live and work in the civilian world with his family. Mr Gregory agreed that one of the factors that he took into account in deciding to leave the Navy was that he wanted to spend more time with his family, including his newborn young daughter.
However, as I have found, that was not the only nor the dominant factor which led to him leaving the Navy.
The defendant drew attention to an answer in cross-examination upon which it relied to support the submission that the only reason Mr Gregory left the Navy was because of his feelings at the time arising from his wish to spend more time with his family. As I have said, that was certainly a part of the decision-making process, as Mr Gregory said. I do not regard his answer (to what was a double, and somewhat ambiguous, question in cross-examination) as excluding, from his decision-making process, the dissatisfaction he had arising from the meeting in September 2014 about his training being changed, and the fact that in the six months or so leading up to that meeting, whilst he had been at FSU in Perth, he had simply not been trained in anything leading to acquisition of competency in the promised Certificate IV. In my view, it was the principal or dominant cause for his decision to leave the Navy.
In re-examination, Mr Gregory confirmed that in September 2014, he was dissatisfied with the accreditation which he would achieve in the Navy (being a Certificate III) given the changes to the training process that happened and that that dissatisfaction was one of the reasons he decided to separate from the Navy. I accept that evidence.
After he left the Navy, Mr Gregory's relationship with his girlfriend broke down and he returned to live at home in Heron - a suburb to the south of Perth.
He has had a mixed employment record since that time and has worked in a variety of roles - including in a winery, doing some study towards a winemaking course, working as a tradesman's assistant and as a fly-in/fly-out worker in the mines in Western Australia - and has not been able to fully exercise his work capacity.
In his statement, he gave evidence of his ambition had he received a Certificate IV in Engineering. Of that, he said that had he discharged from the Navy with that Certificate, he anticipated that he would seek work in the mines in Western Australia as a fitter or heavy-duty diesel mechanic. He noted that he had not been able to obtain work in those trade areas.
Shortly before the hearing of the matter, Mr Gregory commenced a trial apprenticeship as a barber. He remained living at Heron at the time of hearing.
Mr Gregory's tax returns, setting out his income in the relevant financial years, were before the Court. They were not challenged, and I accept that their contents are accurate.
[24]
Mr Hunter's Evidence
Mr Hunter assumed that Mr Gregory would have obtained his Certificate IV in Engineering in the diesel fitting pathway on or about 2 April 2016, which would have accorded with the period described in the Training Contract. He then assumed that at or shortly after that time, Mr Gregory would have discharged from the Navy with that qualification and sought work with the benefit of the qualification with the mining company Alcoa, or some other mining company, in Western Australia.
Had Mr Gregory had been looking for work with a Certificate IV qualification in the second half of 2016, he would have found a jobs market where engineering trade skilled individuals were in demand. Shortages were a key issue in the engineering trade market generally in Australia at that time and for another two years. Mr Hunter expressed the opinion which, having regard to his qualifications and experience I accept, that at that time skilled workers with advanced trade qualifications such as a Certificate IV in Engineering together with experience in the Australian Defence Force were likely to have possessed the necessary qualifications and experience in their chosen trade to gain employment during this period.
Mr Hunter, based on the assumptions which he made and some further key assumptions, having regard to the terms of the Alcoa Enterprise Agreement, assumed that Mr Gregory would be initially classified as an entry level tradesperson and that he would be reclassified to an advanced tradesperson after six months' service. Mr Hunter adjusted the pay rates to be found in the 2017 Enterprise Agreement by reducing those rates by 2% for the purpose of establishing the rate in 2016. He then calculated the total possible earnings which Mr Gregory could have obtained in the period from 1 April 2016 to 30 September 2020. Based upon Mr Hunter's calculation, the total earnings would have been in the order of $606,000.
In fact, in exercising his earning capacity, Mr Gregory's income varied significantly. That was in part the consequence of not having continuous employment or, alternatively, choosing employment closer to home.
I am satisfied from looking at his actual earnings, that Mr Gregory had an earning capacity during the relevant period of about $60,000 pa. This suggests, with respect to the period of Mr Hunter's calculations, a difference of about $240,000 between the possible income which he might have earned with an employer such as Alcoa, or another mining company, in Western Australia, and his earning capacity, on a full-time basis, other than in such employment.
The defendant submitted that a more appropriate guide to the sort of wages which Mr Gregory could have earned had he been discharged with a Certificate IV from the Navy, was to be found in the various industrial awards which were tendered. The defendant accepted that the award rates represented the minimum that Mr Gregory may have been able to earn with that Certificate after discharge from the Navy. The defendant submitted that when one looked at the award sum per annum, it was less than that which Mr Gregory in fact earned. Accordingly, it submitted that he should only obtain nominal damages.
In my view, as I have earlier discussed, using the Award Rates is not really an accurate guide to the likely earnings which a person with a Certificate IV in Engineering would obtain. What Mr Hunter's evidence shows is that very few, if any, employers were paying the award rate. The Enterprise Agreements throughout the areas of engineering which Mr Hunter touches upon, all paid significantly more than the Award Rates. To meet this argument, the defendant submitted that it was open to the Court to reflect, by a figure of 25% or thereabouts, a possible uplift in wages received above the Award. It submitted that this approach would be an alternative to that which was reflected in Mr Hunter's evidence examining various Enterprise Agreements.
Alternatively, senior counsel for the defendant submitted that the better approach may be to treat Mr Hunter's figures and the Award as being at the opposite end of the spectrum and assess the probability in terms of the proposed lost earning capacity as being somewhere between them. This is a more realistic approach.
The plaintiff submitted that the full value of Mr Gregory's claim for his wage loss was, as calculated by Mr Hunter, about $170,000. This reflected losses over a four and a half year period from 1 April 2016, and the application of a 40% discount to reflect the uncertainties of Mr Gregory's working life having regard to the emotional consequence of the adverse events in his life leading up to and after his discharge from the Navy.
The defendant submitted that any discrepancy between Mr Gregory's actual and hypothetical earning capacity would not subsist past a four year period. I agree that this is a reasonable basis for the assessment of the period which would relate to the opportunity which he lost by reason of the defendant's breach of contract. The defendant submitted that the total loss which Mr Gregory sustained over this four year period was about $11,500. Any value of a lost opportunity claim would be less than that figure.
[25]
Findings
In this claim, the events which occurred during his Navy service may have adversely affected the likelihood of Mr Gregory securing the type of job described by Mr Hunter. They may also have adversely affected his ability to achieve his Certificate IV qualification at all, and as well whether he completed the Training Contract within four years.
As well, Mr Gregory's work history after leaving the Navy also gives rise to a question as to the accuracy of the assumption upon which Mr Hunter's evidence was based, namely that he would have taken up employment and remained continuously employed in a full-time capacity.
Each of these matters needs to be considered in assessing the lost value of the chance Mr Gregory had of employment with the benefit of a Certificate IV.
As the evidence shows, Mr Gregory's claim is a complex assessment. I do not accept the figure submitted by the defendant as the full value of any claim. It is more accurate to take Mr Hunter's figure which represents a top of the range assessment, and on the basis of full-time regular employment. But this figure needs to be significantly discounted by all of the complex components in Mr Gregory's case. In this case, the assessment is necessarily a broad-brush one. It is an assessment which is not capable of mathematical precision.
Doing the best I can, I assess the value of Mr Gregory's lost chance of obtaining employment with the benefit of a Certificate IV in Engineering at $40,000. Again, it will be necessary to make an allowance with respect to interest and the impost of taxation upon which I will take submissions.
[26]
Personal Circumstances
Mr Quinn enlisted in the Navy on 18 October 2010. He attended Recruit School until 28 February 2011. He followed this by attendance at Category School which concluded on 20 September 2011.
Prior to the conclusion of Category School, Mr Quinn signed a Training Contract on 20 June 2011. The term of his Training Contract was 48 months so that the completion date would have been 28 February 2015 because the training would only commence on completion of Category School. On the Australian Apprenticeship Sign Up Form, Mr Quinn's occupation was noted as Fitter (General).
Having completed his Category School posting, Mr Quinn was posted to the FSU Kuttabul on 26 September 2011. He underwent a further posting by way of loan to HMAS Waterhen. He was given a Competency Log in which to record any competencies achieved by him whilst in the Navy.
In the last quarter of 2011, he was able to achieve some competencies whilst at HMAS Waterhen including some basic electrical and welding work. Such work was completed under supervision.
In January 2012, he was posted to HMAS Perth, an ANZAC class frigate, which was based at Garden Island to the south of the city of Perth. There he worked on operational aspects of the ship including electrical, diesel, plumbing and sewage fittings. He remained at HMAS Perth until about the end of April 2012, when he was posted to HMAS Parramatta.
When Mr Quinn joined the Navy, he did so with the intention of learning a diesel trade. He was advised that the Marine Technician Course would be most suited to him and, accordingly, upon enlistment he set out on the Marine Technician path.
When he was posted at HMAS Parramatta, he did a lot of work with a supervisor on refrigeration and air-conditioning systems. He found that the skills he learnt mainly involved acquiring knowledge from the perspective of the operator of the relevant systems and did not involve a lot of technical training. His impression was that technical tasks and corrective maintenance were generally outsourced to independent contractors and, accordingly, he did not obtain much exposure to those technical engineering tasks.
Whilst he was on board the HMAS Parramatta, he completed competencies for his Marine System Technician ("MST") qualification, but these had very limited technical components and they did not count towards his Certificate IV competencies.
When he came to the end of his first year aboard the HMAS Parramatta, he became dissatisfied because he realised his technical trade skills were not being taught to him, and so he could not achieve those skills. He considered seeking a discharge and enrolling at TAFE to obtain his technical skills to become a tradesman.
He also considered applying for a transfer to the RAAF but after initially lodging an application, he later withdrew it because of the time he anticipated it would take to be processed.
When he drew the attention of his supervisor to the lack of opportunities for trade training and obtaining his competencies towards the Certificate IV, he received little response in the sense that he was sent off to work in other areas of the ship that did not require any trade skills.
Such was his dissatisfaction with his posting and the absence of trade training that he left HMAS Parramatta, which was then moored in Darwin, and travelled to Sydney where he reported to HMAS Kuttabul as an absentee from his posting on the HMAS Parramatta. He remained there as a loan posting between 2013 and 2014. He did not complete any further training towards competencies in his Log. This led him to conclude that he wanted to obtain a discharge and undertake trade training outside the Navy.
Mr Quinn, after returning to Sydney from Darwin, was examined by the Medical Officer at HMAS Kuttabul in July 2013. That Medical Officer concluded that Mr Quinn required an ongoing program of psychological support and counselling because of an Adjustment Disorder, that he was currently unfit to be at sea and he was given a medical classification of "J31" for a period of 12 months. This classification placed some significant restrictions on his working roles. He was referred by the Medical Officer to Dr Sally Anne Ramke for further assessment and was seen by her in August 2013 on two occasions. Dr Ramke could not find any symptoms of depression or Adjustment Disorder in Mr Quinn nor did she find any evidence of an Anxiety Disorder. She reported that Mr Quinn did not present with any psychological disorder, had not reported any significant levels of psychological distress and did not require psychological treatment.
It is not clear on the material before the Court what happened to that "J31" classification and whether it was changed upon the receipt of the expert psychologist's report. However, it is clear from the evidence that Mr Quinn's psychological state, after his return to Sydney, did not impact his ability to undergo any training or undertake technical tasks. He received a report from the Navy Technical Training Unit at HMAS Kuttabul in August 2013 noting that he had conducted his role to a high standard.
In February 2014, when he was posted to Port Services at Garden Island in Sydney, he took the opportunity to obtain qualifications, including a forklift licence, a heavy rigid vehicle licence and a licence to perform dogging.
In May 2014, together with other members of the MT2010 cohort, he was asked to attend a conference room at Garden Island. There, together with his fellow sailors, he was informed that the Navy would no longer be running the Certificate IV courses and that sailors would be given new Training Contracts for a Certificate III in Engineering. He was informed that there were several pathways that he could choose from such as Electrical, Diesel, Refrigeration and Fabrication.
On 14 May 2014, he lodged a formal Redress of Grievance Application regarding these changes.
The content of that Redress of Grievance Application is significant because it records Mr Quinn's approach and his views at the time about what was happening to him. Although the original document is not in evidence, a reply to him, which was apparently dated April 2015, contains the following requests which he made by way of seeking redress:
"(a) the Navy to honour its commitment by allowing you the opportunity to attend lectures, undertake study and complete the exams and coursework for your Certificate IV apprenticeship within the agreed time‑frame;
(b) in the alternative to paragraph 3(a) above and in addition to … the Navy financially compensate you for the financial hardship you will or have incurred for the breaching of the terms of the Certificate IV Agreement. The particulars of your (anticipated and actual) loss and damage include loss of opportunity and advancing your professional qualifications and category advancement in a timely manner, the loss of opportunity in obtaining set pay rises on completion of the Certificate IV apprenticeship and loss in obtaining promotion in a timely manner;
(c) in the alternative to paragraph 3(a) above, you would like to have the option of being posted ashore to a relevant outpost program that is sponsored by the Defence Assisted Study Program to enable you to undertake the Certificate IV apprenticeship training at TAFE that will enable you obtain a different job to fast-track and finalise your training;
(d) a clear written progression plan tailored to your career goals of obtaining your Certificate IV apprenticeship qualification as soon as possible …"
The response to the Redress of Grievance Application came from Mr Quinn's Commanding Officer. The Commanding Officer decided that Mr Quinn had a legitimate grievance, but he was unable to provide complete redress. He told Mr Quinn that he had informed the Commodore Training of the various issues and expected that the Commodore would take action in that area.
That response also indicated that it may have been anticipated that a Certificate IV course would commence between April and June 2015. There is no evidence which suggests that in fact is what happened.
Mr Quinn was offered the opportunity of attending HMAS Cerberus to undertake training towards a Certificate III in Refrigeration. He completed a number of competencies towards that Certificate, although he did not sign any new contract. However, whilst at HMAS Cerberus and undertaking exercise in the gym, he was diagnosed with a deep vein thrombosis ("DVT") which necessitated his taking medication on a continuous basis to prevent a further DVT from occurring. This medication did not interrupt any ongoing posting.
Upon completion of his training at HMAS Cerberus, he was posted back to Sydney and undertook further components directed towards his Certificate III at Ultimo TAFE. He continued undertaking those components until March 2015 by which time he had completed the TAFE components.
In about April 2015, he decided to seek a discharge from the Navy because there were limited, or no, opportunities for ship postings to finish his trade competencies. He understood it would take about a year to manage his discharge process. Ultimately, he was discharged on the basis that he was medically unfit for his role by reason of his DVT. Being discharged in that way meant that he was entitled to obtain a training course prior to his discharge, at the Navy's expense. He did so and was trained in termite and pest control work.
He was discharged from the Navy on 12 August 2016.
After discharge, he commenced working in the field of pest management and then undertook another quite different role, on a council contract, collecting general and green waste. He also sought work at a number of refrigeration companies on the Central Coast and in Sydney.
Between December 2016 and August 2018, he initially worked as a contractor, and thereafter as an employee, for Boral Concrete driving concrete trucks and delivering loads of concrete across the Sydney metropolitan area. Whilst his earnings were significant, he found that he was required to work approximately 6 days per week and generally about 70 hours per week. Having regard to the fact that his first child was born in July 2017, and generally having regard to the type of work, this working commitment was unsustainable.
Thereafter, until February 2019, he worked on various major infrastructure projects - either as a driver of heavy vehicles, as a forklift driver or as an operator of elevated work platforms.
In February 2019, he took up a job in the Newcastle region in the advanced pest control field. He has remained in that field although he is now a sub‑contractor to Flick Pest Control.
Mr Quinn gave evidence, which I accept, that had he achieved his Certificate IV in Engineering by 2015, it was his intention to discharge from the Navy and seek work using that qualification including in the mining industry. He noted that at that time he would have been a relatively young man with no family, and that he was prepared to travel and live in the Newcastle area for work, or else to travel to or live on mine sites at any location in Australia.
He has not used any of his Engineering qualifications that he received whilst in the Navy.
[27]
Mr Hunter's Evidence
Mr Hunter made two assessments of the value of Mr Quinn's lost opportunity to earn income from working with a Certificate IV in Engineering obtained under the Training Contract. The first hypothesis that he made was that Mr Quinn, immediately upon achieving his qualification in the Certificate IV, would have discharged from the Navy about February 2015 and thereafter sought work in the mining industry. Based upon that assumption, and by reference to Mr Quinn's possible earnings if holding a Certificate IV with BHP Billiton Group, Mr Hunter assessed Mr Quinn's loss of earnings as a little over $227,000. This did not include superannuation.
Given that Mr Quinn did not in fact leave the Navy until August 2016, Mr Hunter also undertook an assessment upon the basis that between February 2015 and August 2016, Mr Quinn would have remained in the Navy and then, after discharge, have sought work in the mining industry. Based upon those adjusted dates but again by reference to a possible income stream in the mining area based upon the BHP Billiton Enterprise Agreement, Mr Hunter estimated the loss of earnings at a little over $164,000.
[28]
Findings
The plaintiff submitted that the Court should assess the damages to which Mr Quinn is entitled by reference to the first of those two alternatives.
The plaintiff submitted that based upon the relevant calculations, Mr Quinn's actual earnings had still not reached parity with what he might have earned in the mining industry with a Certificate IV, and he continued to be adversely impacted. The plaintiff submitted that in those circumstances his loss, based on Mr Hunter's first assessment, could be as high as $360,000 or thereabouts.
The defendant submitted that the only loss which Mr Quinn had in fact sustained was the difference between what he would have earned in the Navy had he obtained a Certificate IV in Engineering in May 2015 and what he in fact was paid. The defendant submitted that that calculation was in the sum of approximately $7,000. That loss, it was submitted, ought only to be calculated for a single twelve month period.
The defendant submitted that in examining what in fact Mr Quinn did upon his discharge, it was clear that he never sought work in the mining area and that, accordingly, any earnings based upon the BHP Billiton Enterprise Agreement were entirely irrelevant. The defendant further submitted that in any event, having regard to an appropriate annual calculation of the income from such a mining agreement, Mr Quinn's earnings when he was driving heavy trucks in the Sydney region exceeded that income. Accordingly, the defendant submitted that the exercise by Mr Quinn of his earning capacity was equal to or exceeded what he would have earned in the mining industry.
At all relevant times, Mr Quinn was keen to obtain a trade qualification by enlisting in the Navy and then using that trade qualification to obtain work outside the Navy.
Having regard to his age at the time that his four-year apprenticeship would have come to a conclusion and his freedom to move around to obtain work, I do not accept the defendant's submissions that it was not a realistic possibility that Mr Quinn would have obtained work in the mining industry with the benefit of his Certificate IV qualification.
In my view, having obtained such a qualification, Mr Quinn would have been likely to have left the Navy sometime in the first half of 2015. An allowance must be made for any delay in training which may have been attributable to Mr Quinn's injury in 2014 and his suffering from DVT at that time, although such allowance, if any, would be relatively small.
There is no doubt that upon leaving the Navy (after a protracted period for the Navy to process his discharge application) Mr Quinn did not seek work in the mining industry. I do not regard that as an indicator that he would not have done so had he obtained his Certificate IV qualifications. Rather, it simply indicates that he had been put in a position not of his choosing at that time and sought to do his best to obtain work and to progress his career in a different industry.
I recognise that his earnings during his time in Sydney as a truck driver were significant. However, his earning capacity at that time was different. He left the Navy being armed with a Pest Control qualification. Had he exercised that qualification, he would not have earned nearly as much money as he did as a truck driver. But, in my opinion, being a truck driver was only ever likely to be a temporary occupation. It was enormously hard work and required him to work six days and many hours per week. Such an occupation was plainly unsustainable in the long‑term and is not a sure guide to his earning capacity.
Nor do I accept the defendant's submissions that a sum of a little under $9,000 is the appropriate compensation. That sum certainly reflected the difference in his salary had he remained in the Navy for the period which he did, but it ignores the task upon which the Court is engaged, which is to assess the value of the lost opportunity to obtain work outside the Navy with the qualification that the Navy had promised him.
In my assessment, because his chance of obtaining work in the mining industry was never a certainty, and excluding the years where he was earning large sums of money because of his extraordinarily hard work as a truck driver in Sydney, the proper comparison is between the sum that he was earning as a pest controller and the sum which he might have earned in the mining industry, then adjusting the differences to represent the various possibilities as to his earnings and as to the vicissitudes of life.
I assess Mr Quinn's damages for the lost opportunity to obtain work with a Certificate IV qualification as being the sum of $75,000.
Again, it will be necessary to make an allowance with respect to interest and the impost of taxation.
[29]
Personal Circumstances
By the time Mr Sparks finished High School, he had completed a Certificate II in Electrotechnology which he had taken as part of his High School education with the TAFE college at Coffs Harbour. Towards the end of 2010, Navy recruiting personnel attended Coffs Harbour TAFE. One of the recruiters was a Marine Technician who discussed with Mr Sparks that role and the trade qualifications which would accompany it.
Mr Sparks made further enquiries on the Defence Force recruiting website and saw that a Certificate IV was on offer. As a consequence, and having completed his High School education, he enlisted in the Navy on 7 February 2011 and commenced Recruit School on the same day which ran for approximately seven weeks. Having completed Recruit School, Mr Sparks undertook some further mathematics training and upon completion of that, he started his initial technical training at the Engineering Faculty on 9 May 2011.
Mr Sparks signed a standard form Training Contract on or about June 2011. I am satisfied that as with other such contracts, the relevant period was four years.
Mr Sparks' AAS Form noted that he was undertaking the qualification of Certificate IV in Engineering and that the occupation being worked towards was Fitter (General). This document was signed by Mr Sparks and countersigned by Mr Palmer, who was nominated as the employer's representative. The document recorded the Royal Australian Navy as his employer.
After completing his initial technical training, Mr Sparks was posted to FSU Kuttabul where he remained for about five months. For the majority of his posting, he received little training and had no tasks to do.
Mr Sparks was posted to HMAS Tobruk on or about 23 April 2012, which is a large ship known as a Landing Ship Heavy. During this posting, for about five weeks or so, Mr Sparks was part of the team responsible for maintaining ship's boat, cranes, and deck machinery. After this five week posting Mr Sparks was posted back to FSU, apparently because there was limited accommodation aboard the HMAS Tobruk as it was about to depart for training exercises. He remained at FSU Kuttabul for around two months and returned to the HMAS Tobruk in July 2012.
Whilst posted to HMAS Tobruk, Mr Sparks undertook a two-week training course at HMAS Cerberus to obtain a promotion so that he could work in the Nuclear, Biological, Chemical Defence Yeoman Department ("NBCD Yeoman"). He completed this course and returned to his posting on HMAS Tobruk. There he was posted as an assistant to the Damage Control Yeoman's Department ("DC Yeoman"). He assisted the DC Yeoman to manage the ship's damage control systems and respond to any safety issue such as fire or flood.
In about April 2013, Mr Sparks received a promotion to NBCD Yeoman. In that role, in addition to being responsible for the emergency equipment on the ship, he also undertook repairs of emergency equipment and instructed others on how to use that equipment. He worked in that role under supervision and entered his daily tasks in his Competency Log. He remained on board HMAS Tobruk in that position until August 2015.
In September 2013, Mr Sparks received an appraisal of his performance. It said:
"AB Sparks is a sailor who will progress through the ranks with his current attitude and work ethic. AB Sparks has always shown strong professionalism towards his tasks and career in the [Navy]. AB Sparks is an excellent example of how a sailor should behave and executes the Navy's signature behaviours correctly and to their core beliefs.
AB MT Sparks should be commended for his performance during his tenure as Tobruk's NBC Yeoman. He has demonstrated on numerous occasions his ability in guiding and directing personnel, as well displaying maturity and leadership. It is highly evident that he would excel in any role that he is asked to fulfil and would have little difficulty in performing successfully at the next rank.
…
Overall AB MT Sparks' exceptional level of professionalism, dedication and willingness to perform to the highest levels is businesslike and accomplished. His achievements have been of the highest order and have brought credit upon himself, HMAS Tobruk and the [Navy]."
The Chief Petty Officer reviewed that assessment and described Mr Sparks as a person who stood out amongst other junior sailors. He recorded that Mr Sparks had demonstrated himself to be a role model.
In 2014, Mr Sparks received news that he would not be receiving the Certificate IV qualification and that, like others of his cohort, he would be required to complete the Certificate III qualification before attaining the Certificate IV qualification. He had been in the Navy for three years at that point and was looking forward to completing his Certificate IV in 2015. He described his reaction to the announced change as being "very disheartened and frustrated". Shortly after that news was announced, Mr Sparks was posted to HMAS Cerberus to commence trade training for a Certificate III in Refrigeration and Air‑Conditioning which was followed by a TAFE component in Sydney. That trade training was completed by 3 April 2015.
Although he had suffered a medical episode which required some surgery, Mr Sparks' medical condition did not prevent him from going to HMAS Cerberus to undertake his trade training and the "J31" medical classification that he had received did not prevent him from completing the training successfully. In my opinion, the evidence does not establish that this medical issue, remedied by surgery, had any impact upon Mr Sparks' progression in the Navy, undertaking training successfully, nor would it have had any impact on his subsequent career.
Upon completion of his trade training in April 2015, Mr Sparks was posted back to FSU Kuttabul at Garden Island in Sydney. At the FSU he did little work that would enable him to meet his competencies. There were very few trade‑based tasks for him to do. It was his observation that most of the technical work which would have enabled him to meet his competencies for Certificate III training were being done by external contractors. The fact that he was sitting around doing very little and feeling that his time was being wasted, caused him to get annoyed with the Navy and he sought a discharge. Another factor in his seeking a discharge was that his partner was pregnant with their first child.
In May 2015 he was posted back to HMAS Tobruk but by then he had already put in his application for a discharge. Nevertheless, he maintained a high level of performance on HMAS Tobruk. He ought to have, and in my assessment would have, completed his Certificate IV by June 2015. In an appraisal report dated 31 July 2015, he was described as :
"… an enthusiastic self-starter and a fully autonomous worker requiring no prompting from supervisors at any time to conduct the duties and responsibilities as the NBCD Yeoman …"
The following matters were also noted:
"AB Sparks excels in the training of personnel of all ranks in regards to the use of DC equipment and damage control and technique procedures. His oral communication skills are outstanding, often proven during his briefing of new joiners and his verbal procedures as containment I/C of Standing Sea Fire and Emergency Party ("SSFEP"). …
AB Sparks is effective in the organisation of work and has excellent time management skills, regularly completing his yeoman work in a timely manner so he can further assist the whole department to conduct, plan and corrective maintenance to hotel services and hull equipment.
AB Sparks goes out of his way outside of working hours to assist with the rectification of refrigeration defects so that he can consolidate his refrigeration trade experience journal to work towards recognition of a Cert III in Engineering (Refrigeration and Air Conditioning) …
AB Sparks currently has lodged his discharge. AB Sparks would make an excellent Leading Seaman and an excellent tradesman in the future, he is already a skilled and experienced marine technician who is a reliable asset to HMAS Tobruk and the [Navy]. It will be a disappointing loss for the [Navy] and the Marine Technical Branch to lose this sailor to outside industry."
Mr Sparks was discharged from the Navy on 28 November 2015. After his discharge, he moved to the Taree area to live with his then pregnant partner. He searched for months for work that would allow him to use such skills and trade training as he had obtained in the Navy but was unable to find any employment of that nature. He was told by prospective employers that he needed further training and would need to spend time employed as an apprentice. He could not afford to do that and, accordingly, commenced work as a truck driver in the Taree area in April 2016. He continued with this type of work until the hearing. During this time Mr Sparks commenced attending TAFE in order to obtain a Certificate IV in Training Assessment.
Mr Sparks' evidence, which I accept, was that had he obtained a Certificate IV in Engineering by mid-2015, he was most likely to have left the Navy and tried to obtain employment using his Certificate IV. At that time, he was flexible as to where he would live and was not limited to the Taree area. He was also willing, on his evidence, to accept the possibility that he may have remained in the Navy using his Certificate IV qualification providing that he was not posted to sea for lengthy periods of time.
Mr Sparks was a very impressive witness and I have no hesitation in accepting his evidence as to what he did, why he left the Navy and what his plans were prior to receiving the news that he would not obtain a Certificate IV qualification in Engineering.
[30]
Mr Hunter's Evidence
Mr Hunter undertook two assessments with respect to the lost opportunity for Mr Sparks to earn an income with a Certificate IV in Engineering.
Mr Hunter first assumed that Mr Sparks would have obtained a Certificate IV in Engineering by about the end of April 2015 (the expiry of the four-year term of the Training Contract), would have discharged from the Navy in November 2015 when he in fact did and that he would then have used his qualification to seek work in the mid-North Coast of NSW.
Mr Hunter assumed that, having regard to the refrigeration and air‑conditioning training Mr Sparks did in the Navy to obtain his Certificate III qualification, he would have followed the Refrigeration and Air-Conditioning pathway for his Certificate IV. I regard this as an entirely reasonable assumption and supported by the evidence of Mr Sparks' work history and my general conclusions about the way in which training in specialised trade pathways would have eventuated.
Based upon that, Mr Hunter assessed that the difference between what Mr Sparks may have earned as a person with a Certificate IV qualification and what he in fact earned in the period from April 2015 to 30 September 2020, was a little under $70,000. This did not include lost superannuation. The yardstick by which Mr Hunter made that assessment was by reference to the enterprise agreement of a large company in that general geographic area which would, in his assessment, have been likely to have reasonable opportunities for qualified tradesmen with a Certificate IV.
Mr Hunter also assessed what would have happened had Mr Sparks remained in the Navy and used his Certificate IV qualification. His assessment was that had he done so, Mr Sparks could have earned a little over $84,000 more than he in fact earned.
The defendant, in its submissions, drew attention to the fact that by the time Mr Sparks discharged from the Navy (in November 2015), he had earned a Certificate II in Engineering and had completed nearly all of his units of competency towards a Certificate III in Engineering - Mechanical Trade (Refrigeration and Air Conditioning). The defendant drew attention to the fact that Mr Sparks only needed to complete two core units and then undertake his final exams to attain that qualification and become a qualified refrigeration and air-conditioning tradesman.
Accordingly, the defendant submitted that the only impairment to Mr Sparks' earning capacity was the time it would take him to complete his Certificate III which, it submitted, ought be no more than six months.
Accordingly, the defendant submitted that the value of the lost opportunity for Mr Sparks was very low - in order of $3,000 or so.
I reject this approach by the defendant. In my view, the approach is erroneous when the Court is being asked to consider the value of the lost opportunity of employment with the Certificate IV qualification. First, to the extent that Mr Sparks had obtained the qualifications which he did, those additional skills would be reflected in his earning capacity if he had a job for which they were relevant.
Secondly, the defendant did not submit that Mr Sparks had failed to mitigate his damages by not completing the outstanding units for his Certificate III qualification. Nor was it suggested to Mr Sparks that he had, in any way, acted unreasonably in the course of his employment and any trade training after leaving the Navy.
Thirdly, what is inherent in this approach is that although the Navy was in breach of its contract and failed to provide the appropriate training opportunity, it was nevertheless entitled to a "credit" with respect to the training which was provided. But the Court is not engaged on a damages assessment which requires a comparison between training which was contractually promised and that which was provided. The Court is assessing the value of a lost opportunity of employment with an identified qualification - namely a Certificate IV. I note that in any event such a comparison, even if called for, could not be undertaken on the evidence at the hearing because the Navy did not at any stage during the currency of the Training Contract provide a training plan setting out the skills to be taught and the competencies to be obtained. There is no evidence of what a standard or hypothetical training plan could have been. The facts in evidence do not enable the defendant's submissions to be upheld.
[31]
Findings
I am well satisfied that Mr Sparks would have successfully finished his Certificate IV had he been provided with the requisite training. Having regard to his progress and attitude whilst he was in the Navy, prior to his Training Contract being breached, there was a significant prospect that he would have stayed in the Navy with his earnings increased to reflect his qualification. And if that was his choice, then there seems little doubt that the Navy would have renewed his service. There was a prospect or chance that he would have left the Navy upon receiving his Certificate IV because his personal and family circumstances may have inclined him to such a course.
In my view, having regard to these variables, and the minimal differences in the two assessments made by Mr Hunter, I assess the value of Mr Sparks' lost chance of increased earnings as being one that should be assessed as being a very high chance of having increased earnings. Indeed, had he stayed in the Navy, the chance of additional earnings would being close to 100%. I assess an appropriate figure for Mr Sparks' lost opportunity as being $70,000. Again, it will be necessary to make an allowance with respect to interest and the impost of taxation upon which I will take submissions.
[32]
Personal Circumstances
Mr Trappett finished High School in 2007. He initially intended to obtain an apprenticeship in a design company to enable him to become a fully qualified draftsman but, due to the global financial crisis, was made redundant. He then undertook a TAFE course seeking to obtain a Diploma of Justice Administration in mid-2010. One option which that Diploma gave him was to enter the Police Force.
In 2010, after conversations with various of his friends, he decided to enlist in the Navy. His plan was to serve for four years in the Navy and, during that time, to obtain a trade qualification. If he enjoyed his time in the Navy, he was open to serving for a longer period. Mr Trappett enlisted on 7 March 2011 and went to Recruit School at HMAS Cerberus for about 11 weeks. At the end of Recruit School, he was required to complete a two week refresher course in mathematics which he did and then he was progressed to Category School. He commenced there on or about 23 May 2011. His initial technical training was carried out at HMAS Cerberus. There he undertook training in basic engineering skills.
On 20 June 2011, he signed a Training Contract which was in the standard form. After completing Category School, Mr Trappett was posted to FSU Kuttabul in Sydney. There were a number of other recruits from his group who were also posted to that FSU at that time.
Mr Trappett was not given much work or any training that would be relevant to his engineering skills. When, occasionally, technical tasks needed to be done, there were a lot of individuals who volunteered for them, including Mr Trappett. There were few opportunities actually given to each individual.
On 11 April 2012, Mr Trappett was posted to HMAS Choules, which was a new vessel known as a Loading Ship Dock vessel. There he started in the ship's hull section. He was tasked with undertaking mechanical maintenance on the ship's pumps, valves, sewerage treatment plant and fresh and saltwater cooling systems.
After a few months in the hull section, and because training on that ship was done on a rotation system, Mr Trappett moved to the electrical department where he was required to carry out tests on various electrical components of the vessel, tag them noting the date of the test and that the part was in working order. He was part of a team tasked to work through repairs which had been recorded as being required.
As part of the rotation system, after his time in the electrical department, he was due to be rotated to the propulsion section to work on generators. However, he requested that he remain in the electrical department because he found the work interesting and he thought he was progressing the competencies needed by him for qualification as a Marine Systems Technician.
Whilst on board HMAS Choules, Mr Trappett received a favourable performance report in September 2012.
The following year, in September 2013, he again received a very positive performance appraisal report.
That report including the following remarks:
"His professional development and capacity for work is to a high standard and [he] has all necessary job knowledge and skills to carry out all set tasks. AB Trappett is a self-starter who has demonstrated the capacity to see through all tasks given until the result is achieved. He applies all his skills learnt to date and seeks advice and guidance when he feels he does not have the skill knowledge to further the defect rectification. …
…
Mr Trappett has displayed all the necessary skills and behaviours to further his career in the next rank of LS. He displays a good knowledge of all Navy values and behaviours and conforms to these traditions and practices. AB Trappett is a positive role model within the engineering department on board HMAS Choules and has become a valued team player."
That assessment was supported by the Senior Assessor. The Senior Assessor remarked that "…he has performed impressively well …".
In about March 2014, whilst serving on HMAS Choules, Mr Trappett, together with other members of the MT2010 cohort were informed that the training was changing and that the Certificate IV in Engineering was no longer being offered.
Mr Trappett described his reaction in this way in his statement, which accept:
"I was very upset after hearing this, and I was frustrated that I would not be achieving the Certificate IV in Engineering after having spent over 3 years enlisted. I did not want to enrol in a Certificate III which would require a further 3 years of service for a lower qualification than the one I had enlisted for."
I accept his evidence that it was at about that time that he decided to seek a discharge from the Navy. In part, that decision was influenced by the fact that his impression was that the Navy did not seem to know what was happening with the proposed Certificate III courses and that there were insufficient places for everybody to take part in those courses.
Accordingly, on 24 March 2014, he submitted an Application for Discharge which was supported by his Divisional Officer.
Mr Trappett's Application for Discharge took some time to process. Whist that was happening, on 18 August 2014, he was posted to FSU Kuttabul as a Thermographic Maintainer. In this role, he used various techniques to detect faults in engines. Although that was the role to which he was assigned, he did not know and was not trained on how to use the specialist equipment to conduct vibration analysis. Accordingly, he shadowed the technicians who were qualified to operate the relevant material.
During the month of August and whilst at the FSU, he was offered the opportunity to enrol in a course to do with thermographic imaging. A Return of Service Obligation of two years was attached to that course. Because he was in the process of discharging, he did not enrol in the course. Having already spent three years enrolled in the Navy without advancing to a trade qualification, he did not wish to remain enlisted for a further two years.
In about September 2014, as a result of further information which he received about the availability of an Electrical Fitters Course and consistent with his wife's then studying and working arrangements, Mr Trappett reconsidered his position and revoked his Discharge to enrol in an Electrical Fitters Course.
That course commenced at HMAS Cerberus on or about 10 November 2014, and the practical component was completed in February 2015. Mr Trappett then studied at TAFE at Ultimo in Sydney for approximately four months. Having undertaken that training, and because further training was required to be completed on board a ship and it was quite unclear to Mr Trappett when that might take place and when he might be able to sit for his final exams, he submitted a further Application for Discharge.
His final posting was on HMAS Choules between August 2015 and 15 February 2016. He was posted to the electrical section and undertook the same tasks that he had been doing during his previous posting. He left the Navy on 15 February 2016.
Prior to his discharge, Mr Trappett had made arrangements for employment as an apprentice electrician in Brisbane once his discharge had taken place. He started at All Trades Queensland after he was discharged, but experienced difficulty in securing recognition of prior learning credits for the TAFE modules he had completed. He changed employers in September 2016 and was employed as a Mature Age Apprentice at Energise Electrical Safety Management. There he was given recognition of prior learning credits and that reduced the length of his apprenticeship by about 18 months.
Ultimately, in August 2017, he was awarded a Certificate III in Electro Technology. He continues his employment as an electrician.
Mr Trappett's evidence about his expectations, which I accept, was this:
"If I had achieved the Certificate IV in Engineering in 4 years, I would have considered remaining enlisted in the Navy. If I had left the Navy with a Certificate IV, I would have sought work using my qualification in a role in Electrical Fitting with Advanced Training (Instrumentation)."
It is clear from Mr Trappett's evidence that he would have sought that employment in the Brisbane area.
In cross-examination Mr Trappett was challenged as to the reasons for his decision to leave the Navy. It was put to him that his decision to leave had nothing whatsoever to do with his failure to obtain a Certificate IV. He rejected that proposition but accepted part of the reason towards his leaving was his then personal arrangements.
There is no doubting in my view, and I so find, that Mr Trappett's decision to leave the Navy was connected with, and was in large part caused by, the failure of the Navy to train him in accordance with the Training Contract, rather than any other cause. After all, he was always keen to obtain a trades qualification immediately upon leaving school. He initially tried to be a skilled draftsman which attempt was thwarted by being made redundant. He then studied for and obtained a Diploma from TAFE. He then enlisted for the purpose of obtaining his Certificate IV. When that training was cancelled, he submitted an application for discharge. It was the length of time such process took, and his personal circumstances, which led to a change, but that was only a short form change.
[33]
Mr Hunter's Evidence
Mr Hunter, in accordance with the assumptions he was asked to make, undertook the exercise of attempting to determine the loss of earnings of Mr Trappett on the assumption that he would have received a Certificate IV qualification in May 2015 in accordance with his Training Contract, and then discharged from the Navy on 16 February 2016 (as he did) and sought work in the Brisbane area with the benefit of that Certificate. Mr Hunter also assessed Mr Trappett's lost earnings if he had chosen to remain in the Navy.
In undertaking his assessment involving the potential for work in the Brisbane area, Mr Hunter looked at work involving electrical fitting, which was the field in which Mr Trappett had specialised whilst on board HMAS Choules and in which he continued to work after his discharge from the Navy. Having regard to Mr Trappett's interests and such training as he received from the Navy, this was a reasonable, and the appropriate, basis for his assessment.
Mr Hunter's exercise noted that jobs growth in Queensland in the period 2017 and 2018 was the strongest of any State. He noted that June 2016 was the starting point for a significant acceleration and demand for technicians and trade workers in Queensland which continued through for a number of years. He formed the view, having regard to the market in Brisbane, that whilst in February 2016 there was a relatively subdued demand for electrical fitters and electricians, nevertheless Mr Trappett would have had opportunities, likely driven by the growth in the mining output, to secure employment given his higher formal qualifications. I accept his evidence that these opportunities existed, and that Mr Trappett would have been a desirable employee.
Had Mr Trappett remained in the Navy, Mr Hunter calculated that the difference in his earnings in the period between his Training Contract completing in 2015 and 30 June 2021, would have been about $92,000. On the other hand, had he sought and obtained work in the electrical fitting and electrician trade area in Brisbane, Mr Hunter calculated Mr Trappett's loss of earnings at about $139,000. The plaintiff submitted that Mr Trappett's lost opportunity should reflect these figures.
The defendant submitted that, based upon the award earnings and increasing those earnings by a factor of 25%, the difference between what Mr Trappett would have earned with a Certificate IV in Engineering and his income (which was said to be representative of his earning capacity) was about $38,000. The defendant's submission was that this loss only continued until August 2017 and thereafter, as Mr Trappett was fully qualified and licensed as an electrician, and the impairment of his earning capacity ceased by that time.
In particular, the defendant submitted that in the range of jobs to which Mr Hunter had had regard, there was no apparent difference in pay rates between those who had a Certificate III qualification and a Certificate IV qualification.
[34]
Findings
Mr Trappett would in my assessment have been very likely, had the promised training been provided, to have achieved his Certificate IV by the end of the four year period of his Training Contract. As his personnel assessments demonstrated, he was able to acquire all of the necessary knowledge and skills for the jobs he was asked to complete. These assessments were proved to be correct by his employment and studies after leaving the Navy.
Although there was an issue raised about the cause of his seeking a discharge from the Navy, having observed Mr Trappett as a witness, and examining his evidence about his interest in joining the Navy, I am satisfied, on the balance of probabilities, that the principal reason for him to enlist in the Navy was to obtain a trade qualification such as the Certificate IV offered to him under the Training Contract.
Whilst he had an open mind about his longer term future, he really only had two options - either to stay in the Navy as a career choice, which meant that the lower sum calculated by Mr Hunter would be the maximum additional amount which he would have earnt, or else to have left the Navy and obtained civilian employment. Mr Hunter's higher assessed sum is an example of what he might have earned in the type of jobs examined by him, which Mr Hunter considered were appropriate jobs for Mr Trappett.
I reject the defendant's submission that as there was no apparent difference in pay rates between a Certificate III and a Certificate IV and, having regard to the fact that Mr Trappett had in fact obtained his Certificate III after leaving the Navy, that he has suffered no impairment of economic capacity. That is because the evidence, including that contained in the Industrial Awards tendered by the defendant, establishes a differential in the rate of pay. Clearly, some employers did not value the Certificate IV as highly as others did. Indeed, the evidence was that some did not think that it was a preferable qualification for their employee to have. However, these are matters to be factored into the total basket of integers being considered when attempting to value the lost chance of (here Mr Trappett) obtaining employment with benefit of a Certificate IV.
Taking into account all of the relevant integers, and particularly having regard to the loss established by Mr Hunter if Mr Trappett had remained in the Navy, I assess the value of Mr Trappett's lost opportunity at $85,000. This sum takes into account all of the vicissitudes of life and the fact that about a four year period is an appropriate period within which to calculate the value of Mr Trappett's lost opportunity. Again, it will be necessary to make an allowance with respect to interest and the impost of taxation.
[35]
Personal Circumstances
Mr Wajwoda left school after completing Year 11 at the end of 2005. He did a four‑year apprenticeship in Sheet Metal Fabrication and, ahead of the planned time, obtained a Certificate III in Engineering (Fabrication Trade) from TAFE in South Australia. He was subsequently awarded a Trade Certificate in Engineering (Fabrication) from the South Australian Training Skills Commission. After finishing his apprenticeship, he remained at Donato Steel Fabrications Pty Ltd, the employer where he had worked as an apprentice, and continued work as a sheet metal welder and fabricator working on a wide range of projects. Generally, however, he had no exposure to heavy duty machinery. Donato Steel was a small workshop and Mr Wajwoda was interested in working on larger scale projects which involved larger steel structures.
After leaving Donato Steel in March 2011, he took a short break from fabrication and in around August of that year, attended a Navy Recruitment office to consider enlisting and obtaining a Certificate IV in Engineering. He thought that prior to enlisting, if he obtained a Certificate IV, it would mean that he would become more highly qualified than he already was but also that it would be easier for him to find work in civilian industries - particularly in the mining industry.
He enlisted in the Navy in October 2011 and shortly thereafter commenced at Recruit School at HMAS Cerberus. Recruit School lasted approximately 11 weeks. He progressed to category training commencing on about 30 January 2012. He completed Category School after about 26 weeks in July 2012. Whilst at Category School, on 1 February 2012, Mr Wajwoda signed the Training Contract.
The contract which he signed was in the standard form, to which earlier reference has been made. I am satisfied that it was a four‑year contract commencing 30 January 2012, that it was signed by Mr Wajwoda on 1 February 2012. It noted that the qualification being undertaken was a Certificate IV in Engineering and that the occupation being worked towards was Fitter (General).
On 13 February 2012, the contract was registered by the Department of Education and Early Childhood Development for the State of Victoria.
Mr Wajwoda's evidence was, and I accept, that he received recognition for his prior learning credits for the fabrication units he had previously undertaken. He was awarded a Certificate II in Engineering on 5 July 2012 at the conclusion of Category School and was promoted to Able Seaman.
After completing Category School, in mid-2012, Mr Wajwoda was posted to the FSU West in Rockingham, Western Australia. He received little training there and realised that there was a welding workshop in the adjoining building. He asked if he could be transferred to the fabrication section there. This request was accepted. He notes that at the time he transferred into the fabrication workshop, there were three other Marine Technicians also posted there. Because there was no more qualified supervisor than Mr Wajwoda, he ended up training the other recruits in basic welding techniques. He received no training at any time whilst posted to FSU West. The lack of training available to him was a cause of significant frustration. During 2013, he received some very basic classroom training - but it did not qualify him in any respect for a trade skill or a Certificate IV.
Finally, in February 2014, he was posted to HMAS Canberra in Sydney. Since the ship was still under construction in Victoria, he was sent to work in an office known as "Defence Plaza". He spent about three weeks of each month there and went to Victoria for about one week a month. It was during that period in June 2014 that he received the same letter as other members of the group from Rear Admiral Uzzell stating that the Certificate IV course was not available.
At a meeting in mid-2014 which included others member of the MT2010 cohort, Mr Wajwoda and those present, were informed that they could enrol in a trade course to achieve a Certificate III in Engineering in one of the courses identified. He spoke afterwards to the officer in charge of the presentation and asked if he could undertake a Certificate III course. He told the officer that he had a Certificate III in Fabrication already. The officer in charge responded that as he had a Certificate III already, he would not be able to enrol in any other Certificate III course and that he would have to wait until a Certificate IV course was available.
In about July or August 2014, the entire ship's company of HMAS Canberra was sent to Williamstown so that they could be trained to operate the ship.
In November 2014, Mr Wajwoda received a letter informing him that his Training Contract had been cancelled. He was also told that he could study for a Certificate IV in Fabrication once a new course started. This statement led to him making the decision to stay enlisted. That was because he, not unsurprisingly, thought that any new course would be available within the next 12 months.
Mr Wajwoda remained on board the HMAS Canberra for almost two years until 2016.
He was then posted to FSU Kuttabul in Sydney. He enrolled in an advanced welding course and was given an out-placement with Thales Ship Repair Services at Garden Island, during which he learned how to weld components of ships such as brackets, pipework and steel structures. That placement lasted about four months.
He was then reposted to HMAS Canberra in November 2017 to an area involved in hull maintenance.
He gave evidence, which I accept, that during this posting back to HMAS Canberra, his supervisors wanted him to progress to achieve the Marine Systems Controller Certificate. However, he wanted to progress further trade skills because that was the primary reason he had joined the Navy. He discovered that a Certificate IV course in Fabrication had been offered the previous year, although he had not been made aware of it. He asked to enrol in one such course, but was unsuccessful.
His principal role on the HMAS Canberra was to maintain the sewerage system. Essentially it involved fixing any breakdowns with the lavatory system and sewage disposal system. He did not work on any hull maintenance. He asked to do other work but was told that he was needed in the sewage maintenance area. Unsurprisingly, about six months after this appointment, and in light of what he had asked and been told about the Certificate IV qualifications in Fabrication and his role on the ship, and in light of the way he had been dealt with, he applied to the Navy for a discharge.
At the time, he received an Assessment Report which included these statements about him and the work he was doing:
"Wajwoda's primary role within ME04 is to execute both planned and corrective maintenance on the sewage treatment plant. This is a demanding, exhausting and thankless role due to the temperamental and fragile nature of the STP system. His knowledge of the STPs and his devotion to ensuring they continue to run was most valuable during the sea series 18 exercises when Canberra was required to operate in the restricted waters of the Great Barrier Reef for a five week period. … Throughout this period Wajwoda retained his calm and collected demeanour and led by example to resolve issues created. He also provided training to personnel to prevent recurrence of defects which had a direct impact in ensuring Canberra successfully completed the sea series exercise.
Wajwoda conducts himself professionally and has a positive attitude that influences his peers in the ME Department … Wajwoda has proven himself to not only be an asset to the HMAS Canberra ME Department but also to the [Navy] as a whole."
His Senior Assessor's statement replicated similar sentiments. It concluded with the following statement about Mr Wajwoda:
"He is a highly competent junior sailor, very positive attitude and he sets a great example to all junior sailors on board Canberra. Wajwoda is highly recommended for promotion to Leading Seaman."
Having put in his application for a discharge from the Permanent Naval Force which I am satisfied was because he wished to progress his welding trade skills and had not been receiving any trade training, Mr Wajwoda was then finally nominated for a Certificate IV Hull Maintenance Specialist Course. He agreed to withdraw his application for discharge on the basis that, having completed the course, he would consolidate his training after the course in a workshop environment which would enable him to be at home with his wife in order to start, and be there to bring up, a family. The Navy agreed to this and offered to post Mr Wajwoda to FSU at HMAS Waterhen. The relevant Divisional Officer noted, with respect to Mr Wajwoda, that he was "a sailor worth fighting to keep".
Mr Wajwoda completed the Certificate IV course in a three month period in the last quarter of 2018. To obtain formal TAFE accreditation, he needed to undertake further courses run by TAFE. He attended at Meadowbank TAFE and undertook further welding training. He finally completed the TAFE component of the course in late 2019 and received his Certificate IV in early 2020, which was about four years later than he would otherwise have qualified.
During his time at HMAS Waterhen, Mr Wajwoda performed planned maintenance tasks on a particular class of ship but did little fabrication. In June 2020, he enrolled in another Certificate IV course in Welding Supervising in Structural Steel. He did that course at night in his own time. He has now qualified in the Certificate IV course.
He says that had he obtained the Certificate IV in Engineering in early 2016, after four years, in accordance with his Training Contract, that he would have discharged from the Navy at that time and gone to work in the mines in Western Australia or anywhere else in Australia where well-paid work was available.
At the time of the hearing, Mr Wajwoda remained serving as a Leading Seaman in the Navy. On 4 March 2022, he received a Commendation from Captain B Hissink, who was the Commanding Officer of HMAS Supply.
In part it read:
"I commend you for your outstanding performance and steadfast professional dedication to your duties. You have consistently delivered in a mature, professional and courteous manner well beyond that normally expected from someone of your rank and experience.
… On numerous occasions … you displayed superior technical mastery. This was observed with your welding skills in order to maintain capability and enable Supply to remain at sea and on task.
… Your aptitude and approach to rectifying a number of significant deficiencies within engineering onboard Supply has bought praise from numerous external sources.
You readily demonstrate all the traits of what it means to be a role model and epitomise just what a Leading Seaman should strive to be. … Your conduct is of the highest order and in the finest traditions of the Royal Australia Navy."
In cross-examination, Mr Wajwoda gave further evidence that at the time when left Donato Steel, one of the possible career options he had in mind was going to work in mines in Western Australia and that whilst he had not applied for any jobs in that field, he had looked for work which was available at that time. He read a number of different job advertisements.
He made it plain, and was not contradicted on this in cross-examination, that at the time he made his decision to enlist in the Navy, he was hoping that the experience he would get in the Navy would be useful in finding work in the mining industry in the future. His only two areas of focus in terms of work and career were the Navy and the mining industry.
Mr Wajwoda agreed that at the time he enlisted, he anticipated that he would be able to finish his Certificate IV in two years because he already had a Certificate III qualification. He accepted also that he had, by enlisting in the Navy, agreed to an initial minimum period of service of four years and that he was obliged to serve that period as a minimum before leaving the Navy to take up work elsewhere.
He gave this evidence, which I accept:
"Q. Is it fair to say that the main reason you enlisted in the Navy was not to obtain a particular qualification, being a Certificate IV, because you believed that being in the Navy would give you a much broader range of experience than you might otherwise receive in the civilian workplace?
A. I don't agree with that. The main driving factor was the Cert IV in Engineering and everything else was just supplementary to that to help me gain a better job if I decide to leave."
Mr Wajwoda clearly rejected the proposition put by the Commonwealth that obtaining a Certificate IV in Engineering was not his primary motivation for enlisting in the Navy. He said that it was his main focus. He saw it as an additional bonus that he would be working on a broader and wider variety of systems. I accept this evidence.
At the time of the hearing, Mr Wajwoda was asked what his intention was with respect to remaining in the Navy. He gave this evidence:
"Q. Are you intending to remain in the Navy for the foreseeable future?
A. At this stage, yes. During these uncertain times with COVID 19, I plan to stay just for job security at this time."
He gave evidence, which I accept, that after completing his Certificate IV training during 2019, he considered discharging from the Navy and had looked around for work and commenced to prepare resumes, but he thought he should remain for a short period to consolidate what he had learned.
It was at that point when COVID 19 became a reality and for job security reasons, Mr Wajwoda decided to remain enlisted.
Mr Wajwoda was a most impressive witness. Hearing his evidence as to what he intended to do when he joined the Navy, and having regard to his then circumstances including leaving Donato Engineering to be trained on fabrication of much larger plant and equipment, I am satisfied that he intended to obtain his Certificate IV in Engineering within the four-year period and then to look for work in the mining industry in Western Australia.
In the events which occurred, Mr Wajwoda remained in the Navy, but the various influences leading to that career choice do not mean that he would not have taken up the opportunity had he been able, having received the Certificate IV as he was entitled to believe he would, to have had an alternate career.
[36]
Mr Hunter's Evidence
Mr Hunter has calculated that had Mr Wajwoda obtained his Certificate IV as provided for in the Training Contract and thereby been promoted to Leading Seaman Marine Technician, he would have received various pay increments. Mr Hunter's calculation was that having remained in the Navy but not having received the Certificate IV in a timely way with the boost to earnings which obtaining that Certificate would have brought about, Mr Wajwoda had lost a little over $59,000. That calculated related to the period up to 30 June 2021. Mr Hunter had used some estimates to complete the calculations for that period, which I regard as quite reasonable.
Mr Hunter also undertook a calculation which explored what Mr Wajwoda may have earned if he obtained work in the mining industry in Western Australia. The principal assumption was that Mr Wajwoda would have obtained a Certificate IV in Engineering on or about 30 January 2016, in accordance with the Training Contract, and thereafter would have discharged from the Navy and explored the opportunity to work in the mining industry in Western Australia or elsewhere in Australia. Mr Hunter examined what the skilled trade demands were, and what the skilled tradespeople were earning, in that mining industry. He calculated, upon the basis which was a familiar one, that had Mr Wajwoda left the Navy and obtained work, his loss was in the range from $230,000 to $314,000.
[37]
Findings
The plaintiff submitted that taking account of the inclusion of a sum for superannuation, and including allowances for his lost earning capacity up to 28 February 2022, the Court would value the relevant lost opportunity at about $335,000. In so submitting, it was submitted that Mr Wajwoda's lost earning capacity was a continuing one.
The defendant submitted that the appropriate assessment of Mr Wajwoda's damages was to look at only the pay differential whilst he remained in the Navy. It submitted that any such differential ceased in February 2019 by which time Mr Wajwoda had been promoted to Leading Seaman. The total sum for damages was submitted by the defendant to be $27,500. Insofar as Mr Wajwoda's claim was that he would have sought work in the mining industry, the defendant submitted that no monetary value attached to that claim because there would have been no uplift in Mr Wajwoda's earnings had he qualified for a Certificate IV, having regard to the fact that he already held a Certificate III in Engineering.
Taking into account all of the possibilities, I have concluded that there was a real prospect rather than a hypothetical possibility that Mr Wajwoda would have left the Navy at the conclusion of his Training Contract and obtained work in the mining industry. He was a reliable individual. He had had no difficulty in obtaining employment prior to entering the Navy and retaining that employment. During his time in the Navy he was obviously a diligent and loyal worker. He took on jobs which were unpleasant but nevertheless performed them to a very high standard. He was not the subject of any disciplinary or other remarks or criticism. I am satisfied that he would have been a valuable and valued employee in any business outside the Navy.
I do not accept that there is no difference in the earnings a person is likely to receive in the mining industry if they hold a Certificate III rather than a Certificate IV. Whilst that may be so for some employers, it does not reflect the industry more generally, nor does it affect, to any significant extent, the value of Mr Wajwoda's lost opportunity. Nor do I accept the defendant's submission that the appropriate factual basis in Mr Wajwoda's case is the differential for a three year period of his earnings in the Navy.
That is because I am well satisfied, as earlier noted, that Mr Wajwoda's course was likely to be seeking employment in the mining industry having left the Navy upon, or shortly after, completing his Certificate IV qualification.
His actual career path, namely by remaining in the Navy without the requisite and timely qualification which I am satisfied he would have obtained, has resulted in a loss directly to him of around about $59,000. However, he has lost the opportunity to engage in obtaining work in a much more highly paid industry than remaining in the Navy. My assessment of that lost opportunity including all of the appropriate vicissitudes of life, and employment risks, is $125,000. Again, it will be necessary to make an allowance with respect to interest and the impost of taxation upon which I will take submissions.
[38]
Personal Circumstances
Mr Widz grew up in Sydney. He commenced work experience with a mobile marine outboard mechanic as an assistant working on powerboats. He completed High School at the end of Year 10 in 2010. In the course of that year, he considered his future career options and considered joining the Navy, enlisting as a Marine Technician and obtaining a trade. His father encouraged him to join the Navy to obtain a trade.
On 7 February 2011, he submitted an application for entry into the Australian Defence Force. He was 16 years old at the time. Although he was initially refused entry on the basis of a medical assessment, after an appeal against that assessment, in July 2011, he received a letter confirming his application to enlist had been accepted and offering him enlistment commencing on 19 September 2011 in the role of a Marine Technician.
His intention in joining the Defence Force was made plain in his application of February 2011, where he said he wished to join the Defence Force, the Navy being his first preference, "… to gain high levels of training and expertise as a Marine Technician".
On the day of his enlistment, Mr Widz was sent to Recruit School at HMAS Cerberus - which he completed in December 2011. Upon completion of that training course, he was given a Training Contract to sign - which he did on 8 December 2011. Mr Widz expectation was, at the time he signed the Contract, he would complete a Certificate IV in Engineering within four years. Because he was not yet 18 at the time he signed the Contract, it was necessary to arrange for his father to sign the Training Contract as well. His father signed the Contract on 17 December 2011. After signing the Training Contract, Mr Widz was sent to Category Training which also took place on HMAS Cerberus. He performed well in his category training and achieved the highest academic performance in the Marine Technical category during his initial technical training.
Having completed Category School, Mr Widz was posted to FSU Kuttabul. He received little training there. There were few jobs to do, and he found his time unenjoyable. About three weeks into his posting he enquired about a posting to sea and was told he would be notified when something was available.
About a week later, he was offered a position on board HMAS Success, which was an auxiliary tanker the principal purpose of which was to refuel other vessels at sea.
He took up his posting on 31 August 2012 with the title of Outside Mechanical Maintainer. Mr Widz' duties generally involved maintenance and operation of auxiliary machinery and equipment, conducting inspections of the ship and equipment and participating in the ship's damage control operations.
About a year after being posted to HMAS Success, Mr Widz was promoted to Able Seaman. He was then posted to "Auxiliary Maintenance". That did not involve any change in his duties. During 2013, the HMAS Success underwent an extensive refit during which time Mr Widz was not at sea.
Eventually, Mr Widz received his Marine Systems Technician Certificate on 14 March 2014.
Mr Widz learned of the cancellation of his Certificate IV in Engineering in late 2014 at a time when HMAS Success was located at Fleet Base East in Sydney. At a meeting with several other MT2010 sailors, in a conference room, he was informed that the Certificate IV would no longer be provided and that there would instead be a Certificate III being provided which included different trade streams. He was informed that he would need to sign a variation of his Training Contract and he would need to engage for a further two years by way of a service obligation.
At that time, Mr Widz was about a year away from the date upon which he anticipated receiving a Certificate IV in Engineering. He felt very disappointed by the change to the course and the fact that he would not be achieving what he had expected. In particular, he was frustrated because he had expected that qualifying for a Certificate IV in Engineering would assist him to obtain employment outside the Navy and now he found that he had to spend additional time in the Navy to receive a lower qualification.
He remained on HMAS Success until the end of 2015, when he was then posted to HMAS Cerberus to do his Certificate III Electrical Fitting course.
His performance assessment report covering his time on HMAS Success was completed in September 2015 and recorded very favourable comments. It included the following:
"Able Seaman Widz has performed extremely well during this reporting period and has shown to be a well mannered pleasant sailor whom (sic) is respected amongst peers and superiors alike for his technical abilities and knowledge of HMAS Success' outside mechanical system.
…
He is an energetic self starter who acts promptly and performs particularly well, independent of supervision and direction with mildly complex tasks and has shown a willingness to tackle more complex tasks. Able Seaman Widz produces the required work outcomes with excellent economy and effort. …
Able Seaman Widz is a strong team player whose contribution is well regarded. He has also provided time out of his own schedule to assist fellow members of the Engineering Department in their progression of competencies logs and AMOC's … Able Seaman Widz has a good ability to learn and understand, and then put that information to good use …
Able Seaman Widz shows a strong regard for Navy values and his appearance and bearing is of a high standard and reflects well upon himself and the Engineering branch aboard HMAS Success. … Able Seaman Widz fosters teamwork and his contribution is highly regarded.
… Given that he has already proven himself a trusted and steadfast worker, I believe that he has the ability to fulfil his role as a Marine Technician competently and safely and will have a bright and promising career."
On 23 February 2016, Mr Widz' apprenticeship for the purpose of obtaining a Certificate III in Electrical Fitting was established. The term of that apprenticeship was three years. That term was fixed on the basis that he obtained an agreed credit for one year of previous training.
The training for his Certificate III in Electrical Engineering consisted of a nine‑month course of study being three months at HMAS Cerberus and then three months in Sydney which was made up of training at TAFE and HMAS Kuttabul. He returned to HMAS Cerberus for the final three months of the Course. He sat his final examination in late 2018 and received his Certificate III in Electrical Engineering on 14 March 2019.
In September 2016, Mr Widz was posted to HMAS Canberra - which is a landing helicopter dock ship - in the role of a high power and high voltage maintainer. In that role he was responsible for electrical maintenance of distribution boards and lighting, in addition to the ship/shore power which, once connected, would lead to a shutdown of the generators on board the ship. It was difficult for him to complete his competencies because of the lack of appropriate equipment on board.
In March 2018, Mr Widz attended a meeting about training concerns and the lack of progress in training. He was informed by a representative of the Navy who attended, that there was a training course available which would allow him to get a Certificate IV. He informed the representative that that was what he wanted to do. He made subsequent requests but achieved no success prior to March 2019.
On 4 March 2019, he commenced training for a Certificate IV in Electrical Equipment and Systems. Of the three different course options, he elected to do that which was described as "Control Monitoring and Instrumentation". That course ran for 13 weeks. He completed it through the Ultimo TAFE whilst posted to HMAS Kuttabul in Sydney. In June 2019, he received his Certificate IV in Electrical Equipment and Systems. Having qualified for the Certificate IV, he moved into the area of work involving pressure testing - which involved working with release valves and dealing with ship's hoses and anything that required or operated under pressure.
In November 2019, he was promoted to Leading Seaman.
Following that promotion, he worked in a workshop at HMAS Kuttabul as a "Condition Monitoring Analyst". This involved working with thermal imaging cameras and vibration analysis equipment to look into machinery and detect abnormal vibrations and identify the faults. Whilst he enjoyed running the Condition Monitoring Workshop, he decided it was time - around July 2020 - to apply for a discharge the following year and to finish his Naval career in September 2021.
He gave this evidence, which I accept, about his intention at the time of enlisting:
"When I enlisted in the Navy, it was my intention to work and train in the Navy for a period of about four years to obtain a Certificate IV and afterwards begin searching for work outside the Navy using that qualification. I would have been 21 years old at that time and would have been wiling to move anywhere in Australia for well-paid work."
He also noted that had he stayed in the Navy and received his Certificate IV by the end of 2015, he would have received a promotion to Leading Seaman about four years earlier than he did.
By the time Mr Widz came to give evidence, he had been officially discharged from the Navy with effect from 16 February 2022. He had been on leave from 22 September 2021 and had taken all of his accrued and long service leave.
By the time he gave evidence, he had married his long-term partner and they had a child together. They had bought land in the Hunter Valley upon which they were building their new home and planned to move to the Hunter Valley once the house was finished. There he planned to look for full-time work in the condition monitoring area. He had done a good deal of research and had identified a number of roles suitable for him with companies that had contracts with the mining industry in the Singleton area.
In cross-examination Mr Widz was asked whether by March 2019, when he obtained his qualification and could be regarded as an electrical fitter, he considered leaving the Navy. He said that he had, but that he chose not to because at that time in his life - which was four years into the relationship with his future wife - he wanted to stay around Sydney and save money so that in due course he would be ready to establish a stable family environment. He also noted that at that point he was keeping a close eye on his entitlement to long service leave which, in the Navy, arose at the expiry of 10 years of service.
Mr Widz also agreed in cross-examination that although it had been his intention to leave the Navy at the end of his Certificate IV in Engineering Training. However, by the end of 2015, by which time his training had not been undertaken nor provided, he was not then intending to leave the Navy and go and look for work in the civilian world. He said that in part that change of mind related to his personal life and relationship with his partner, although he had in mind that it was always possible to leave the Sydney area if a good opportunity became available and his relationship, which was in 2015 at an early stage, did not mature.
His evidence was that by about 2018 onwards he had developed a preference to stay in the Navy.
His evidence did confirm the fact, which I accept, that had he obtained his Certificate IV in Engineering (which would, I am satisfied, have been in the Electrical trade stream) by the end of 2015, he would not necessarily have remained in the Navy, but may well have sought other jobs and seen what the qualification would have got him. Because he was not qualified by that stage, he did not bother looking at that time for outside work. He lost that opportunity so to do.
[39]
Mr Hunter's Evidence
Mr Hunter undertook a calculation as to what the difference was between the income received by Mr Widz from the Navy and what he would have been paid had he attained a Certificate IV in a timely way, namely, within the four-year period agreed upon.
Having regard to Mr Widz' progress, there is little if any doubt that he would have achieved his Certificate IV in the four-year period. In fact, he may have achieved it earlier.
Based upon that calculation, Mr Hunter has arrived at a loss of earnings of a little over $47,000. He notes that this does not include any allowance for lost superannuation entitlements.
With respect to work outside of the Navy, Mr Hunter examined possible earnings in a variety of locations around Australia. He reviewed five enterprise agreements from potential employers in Queensland, Victoria, Tasmania and two agreements in Western Australia.
Applying his usual method of calculation, Mr Hunter arrived at a loss of earnings, upon the assumption that Mr Widz had left the Navy in January 2015, of a little under $177,500.
The plaintiff submitted Mr Widz had lost earnings by 28 February 2022, which he would have earnt in the mining industry with a Certificate IV of about $205,000.
The defendant submitted that the evidence suggested that Mr Widz would, upon obtaining his Certificate IV as the Training Contract had provided, have remained in the Navy. It submitted that these assumptions made by Mr Hunter that Mr Widz would have worked in remote areas of Queensland were most unlikely to come to fruition in particular because Mr Widz had not explored employment in that area, and because he would still have been relatively young (about 20 years old) when his Training Contract was expected to finish. The defendant submitted that Mr Widz' lost opportunity should not be valued at any more than $36,500.
[40]
Findings
Mr Widz continued in the Navy until 2022. He chose not to exercise his earning capacity upon leaving the Navy because he undertook parental duties on a full‑time basis while constructing a house in the Hunter Valley. Had he been offered and completed the training for a Certificate IV in Engineering, he would have had the opportunity of obtaining work in the industry outside the Navy.
Having regard to the change in his personal life by the end of 2015 when he would have completed his Certificate IV, it was by no means a certainty that Mr Widz would have taken up the opportunity to work remotely from his domestic base. He had recently formed a new relationship in Sydney. However, having regard to his demonstrated work history, and notwithstanding that new relationship, he may well have taken up the opportunity to work in a remote location. If did so, it would be likely to have been in a job of the kind that Mr Hunter has discussed. That is particularly so when he would still have been young and the lure of significantly increased income would have assisted in establishing a solid financial and domestic base for his future. But, as his personal relationship developed, that attraction would probably have waned.
Having regard to his success in the Navy, and his progress in the Navy, I regard his decision to stay in the Navy as demonstrating his adaptability to changing circumstances and the making of decisions which he thought were best for his financial security.
Although the assessment of the value of Mr Widz' lost opportunity is not without its complexity, I would assess it at $75,000. Again, it will be necessary to make an allowance with respect to interest and the impost of taxation.
[41]
Personal Circumstances
Mr Williams is in his early 30s. He completed his Higher School education in Victoria to the end of Year 12. Whilst at High School he undertook a business course for which he received a Certificate II in Business in 2004.
In the year after he left school, he completed a pre-vocational trade course and received a Certificate I in Engineering from TAFE. He undertook some labouring work for the balance of that year and then, early in 2006, changed employers so that he worked at a meatworks in Brisbane.
He enlisted in the Navy in late 2011. He came from a Defence Force background. Both of his parents were officers in the RAAF and encouraged him on a number of occasions to become an officer in the RAAF.
However, Mr Williams preferred the idea of working with his hands and wanted to learn a trade. He submitted an application to enlist as a Marine Technician in the Royal Australian Navy in or around March 2010. He continued in his various employment roles whilst that application was being considered. He attended an interview with a careers counsellor shortly after his application was submitted. Consequent upon being interviewed, he submitted an application to become an officer in the Army. Ultimately, that application was unsuccessful and around mid-2011 he heard from the Defence Force about his application to be a Marine Technician.
On or about 18 July 2011, he attended an interview during which he discussed his career path in the Navy. One of the interviewers told him he would obtain a Certificate IV in Engineering and become a skilled tradesman in that area. He was reassured by the interview and went ahead with his application. He was enlisted on 7 October 2011. Shortly thereafter he commenced Recruit School, which lasted for about 12 weeks or so.
On 1 February 2012, he signed a Training Contract to undertake an apprenticeship to obtain a Certificate IV in Engineering. The contract which he signed was in the usual form. It was his understanding that the contract meant that he would obtain a Certificate IV within four years. That understanding was correct. He understood that a Certificate IV was a higher qualification than a Certificate III, and that he was getting an advanced trade. He also understood that he would be offered an option to choose what area of trade specialisation he wished to engage in. He would have completed his Training Contract by 30 January 2016.
At the start of 2012 he commenced his Category training at HMAS Cerberus, which he completed in about July 2012. Like Mr Widz, Mr Williams was the Dux of his course. Having completed his recruit and initial technical training, Mr Williams was posted to FSU Kuttabul. There was no useful training or meaningful work to be done at the FSU. He was posted on loan to HMAS Waterhen where he did metal fabrication, mainly of pipes, and was able to complete a number of competencies in his Competency Log.
About a month after he was posted to HMAS Waterhen - at the invitation of one of his superiors - he volunteered to move to Darwin. He was posted to the Hull and Fabrication Workshop at the FSU in Darwin in October 2012.
After about six weeks or so at the FSU, Mr Williams was posted to join the "Aware Three Crew" which was established for Australian border protection purposes. He remained as part of that crew until June 2014.
The Aware Three Crew was one of three rotating crews who worked on one of two patrol boats responsible for border control and illegal fishing patrols. Generally, each crew was at sea for eight weeks at a time and then on-shore for four weeks. The Aware Three Crew was a crew of around 24 sailors in total.
Although he was posted as part of the Marine Technical Department in the crew, nearly all corrective maintenance on the boat was contracted out to external organisations by the Navy as the boat had very limited facilities in tooling.
Mr Williams said, and I accept, that he undertook no real trade training during that Aware Three posting except for a small amount of planned and preventative maintenance. Mr Williams trade skills did not improve during that posting. In about November 2013, Mr Williams received his Marine Systems Technician Competency.
In the first half of 2014, together with other MT2010 sailors, he attended a meeting in a conference room at FSU in Darwin. He was informed that changes had been made to the trade continuum and that a Certificate III course had been created for which he could apply in one of four chosen fields: refrigeration, diesel, fabrication or electrical. Mr Williams determined that he would do the Certificate III in Diesel Fitting.
As part of that course, he was out-placed to a company called Penske Power Systems. It supplied a particular brand of engine that was used by the Navy. In order to undertake this training, he was required to sign a two year Return of Service Obligation form, which he did on or about 11 June 2014. That required him serving in the Navy for an additional two years upon the completion of his one year out-placement posting.
Although he was required to undertake the out‑placement, in fact Mr Wilson was posted to HMAS Cerberus to the Engineering Faculty to commence his study and training. Upon completion of the six-month course at HMAS Cerberus, he was then posted to HMAS Kuttabul in Sydney to undertake practical trade training at the Ultimo TAFE in Sydney and learning about diesel engines.
Upon completion of that component of his course, in mid-2015 he was then posted back to Darwin and joined one of the other Aware crews being the Aware Two crew. He continued in that posting in the position of Platform System Technician 1, undertaking Australian border protection operations.
During the course of his posting as a member of the Aware Two crew, a number of performance appraisals were undertaken. During his time as a member of the Aware Two crew, because there was a gap in the available resources, Mr Williams volunteered to undertake the DC Yeoman course to fill that gap. He passed with an exceptionally high score and achieved first place in the course.
In his appraisal report of September 2015, he was described in this way:
"AB Williams is a highly motivated sailor which (sic)has exceptional capacity for learning and already displays a high level of technical competence. … This was where AB Williams really came of age in relation to displaying leadership, not only was he responsible for the day to day running of the engineering department's planned maintenance, but also personnel management. …
…
AB Williams has been an exceptional professional sailor throughout this reporting period and holds the Naval values to the highest regard, always conduct himself in a highly professional manner and is one of the first members to hold members to account for their actions. AB Williams has been an asset to the engineering department and the entire ship's company alike whilst being posted to Aware Two, and will continue to do so for future postings …"
The Executive Officer responsible for this performance appraisal expressed this view:
"… I can assert without hesitation that AB Williams has impressed. Williams' technical skill and aptitude is at a pleasingly high level. This is perhaps best evidenced by the extremely short period of time Williams took to achieve his ACPB DC and technical endorsements despite having been away from sea for well over a year.
Williams is an enthusiastic and committed team player who holds high and laudable aspirations for his future career, as evidenced by his keen enthusiasm for industry out-placement experiences. AB Williams commits himself to his work with a quiet dignity and resilience which has won him the respect of command and peers alike."
Prior to taking the out-placement with Penske, Mr Williams undertook a short notice posting as an MST qualified technical sailor on board ADV Cape Byron for a two-month period. The assessment of his performance in that role contained these remarks:
"AB Williams spent significant time working and maintaining the ship's boats, including assisting the STO with the investigation into the catastrophic failure of the CO4 PME (fire damage). These boats have tested his tolerance and fortitude with a multitude of daily failures, from faulty bilge pump systems, intermittent start sequencing faults, flat batteries, fuel priming faults and general wear and tear defects."
In March 2016, Mr Williams commenced his out-placement at Penske, which was situated in a suburb outside Darwin. The purpose of the out-placement was to give him 12 months of trade training to enable him to finish his competencies.
When Mr Williams arrived at Penske he was partnered to work with a second year apprentice, who was an employee at Penske. In working with this individual, Mr Williams observed that the second year apprentice had a far greater skill set than he did. At that stage, Mr Williams had been in the Navy for four years and realised that he had gained little or no trade experience notwithstanding both his contract for a Certificate IV in Engineering and his later engagement in seeking a Certificate III in Engineering.
In his first statement, in speaking of his observations whilst at Penske, Mr Williams said this, which I accept:
"60. The second year apprentice and I were tasked to diagnose and rectify mechanical issues on various pieces of equipment such as cranes, trucks and trailers. Many times during our work together I would realise that I would not have the same level of diagnostic and mechanical ability as he did. …
61. I remember one instance where we were tasked to diagnose and repair an issue with the main engine on a patrol boat. He quickly diagnosed the problem with the aid of a computer and his accumulated knowledge. He then explained to the Captain and engineering team that he would need to replace the fuel pump, and proceeded to return to the Penske workshop to obtain the parts and return to fit it. During my time in the Navy we did not have any of the computer diagnostic laptops, software or tooling required to undertake this sort of work. Considering I had spent years at sea on the boats, I was disappointed that I could not perform any of the work he could after working in outside industry for only two years."
Unsurprisingly, having observed this discrepancy in trade training skills, Mr Williams became quite disillusioned. He then made the decision to leave the Navy because he formed the view that he had not, and was not, receiving the training or qualifications that he had been promised and which he had expected.
Accordingly, on 31 March 2016, during the Penske placement, he submitted a resignation form. He left the out-placement and returned to the FSU at HMAS Coonawarra in Darwin. There, he was posted as a Diesel Supervisor Two and placed in the propulsion workshop where the diesel fitters worked.
In a minute prepared by Petty Officer Ridlinger, who was Mr Williams' supervisor at the propulsion workshop, this was recorded:
"It has become evident to me that AB Williams is no longer interested in continuing his Naval career. He is disgruntled with the MT2010 trade training and believes the qualifications obtained if he continued with the Navy would not make him competitive in outside industry. This is why he wants to further his technical training with a civilian company where he will be able to obtain the qualifications he thought he would be receiving in the Navy."
At the request of the Navy, Mr Williams underwent a psychological examination which was essentially scheduled because of the limitations on Mr Williams' availability for service arising from his "total loss of motivation for service".
The psychologist's report included the following paragraph:
"AB Williams was firm in his opinion that he had no further time for the [Navy]. He feels the qualification promised was not delivered and this has undermined his whole purpose for joining the [Navy]. Given the depth and conviction he expressed in this matter, it would be very unlikely for him to resile from this position."
In May 2016, Mr Williams took a period of six weeks' leave. During that time, he looked for alternative employment. He obtained the position of a tradesman's assistant with a large interstate transport company and commenced there on 1 June 2016. He did not return to the Navy when he was back from leave and, as a consequence, in November 2016 his position in the Navy was terminated.
In his role as a tradesman's assistant, he was employed doing various tasks assisting tradesmen and conducting general workshop duties relating to the transport company which including servicing and repairing trucks, trailers and forklifts. His wage was marginally above that which he had been receiving at the meatworks where he had worked prior to joining the Navy.
Mr Williams says, and I accept, that in this new job he had initially hoped to utilise some of the skills he had obtained in the Navy and that he wanted to complete a Certificate III at TAFE. When he went to TAFE, he was advised that he did not have enough diesel fitting experience and it was initially suggested to him that he may be able to complete a Certificate II to become a heavy vehicle mechanic.
In around July 2018, Mr Williams received recognition of his prior learning which meant that he could go on and complete his Certificate III in heavy commercial vehicle mechanical technology - which he did in March 2019.
He was then promoted to the position of tradesman at the trucking company and was entitled to work completely unsupervised. In mid‑July, he changed his employment as a tradesman to work for an organisation known as Ventia, which was a sub-contractor providing mechanical maintenance work to the defence forces. He has remained in that position, including being promoted to the position of Team Leader where he is responsible for supervising up to 20 vehicle mechanics.
Mr Williams gave this evidence in his statement, which I accept:
"85. It was my intention to discharge from the Navy after attaining my Certificate IV in Engineering which I could then utilise to obtain employment outside the Navy. After I discharged, I would have sought employment in my chosen trade stream (which was diesel fitting). I am not sure how long I would have remained enlisted after achieving my Certificate IV qualification. I would have stayed as long as it suited me. I do not think it likely that I would have remained more than a year or two. Spending most of my time at sea was not what I wanted to do and I could never have made a career out of it."
Mr Williams would have completed his Certificate IV in Engineering at the start of 2016. He actually left the Navy and commenced his employment in April 2016. Accordingly, he had about two months in the Navy after the time at which he would have qualified.
[42]
Mr Hunter's Evidence
Mr Hunter was asked to assume that after leaving the Navy, Mr Williams would have sought work as a diesel fitter in the Brisbane and south-east Queensland area. From his research, Mr Hunter established that there was a significant acceleration in demand for technicians and trades workers, particularly in the automotive and engineering occupations which experienced an 81% growth in vacancies in the Greater Brisbane area between June 2016 to November 2017. Mr Hunter examined a range of employers in that area and assumed that Mr Williams would have left the Navy at about June 2016 having obtained his Certificate IV in Engineering, and entered employment in the mining equipment, technology and services sector in the Greater Brisbane area. Mr Hunter's assessment of loss compared with what Mr Williams in fact earned, was the sum of a little over $198,000. In a subsequent report, Mr Hunter adjusted his calculations leading to that loss so as to arrive at the sum of a little over $146,000.
[43]
Findings
The plaintiff submitted that Mr Williams would have obtained his Certificate IV in Engineering in the diesel fitting pathway within the four year contractual period. He submitted that, in accordance with his expressed intentions, and his undoubted capacity for learning, leadership and hard work, he would have obtained work of the kind that he ultimately did in the diesel fitting area, although at a much higher level, having regard to the fact that he would have been seeking employment with a Certificate IV.
The plaintiff submitted that, ultimately, a sum of about $240,000 was a realistic estimate of the value of Mr Williams lost opportunity.
The defendant submitted that Mr Williams would never have sought employment in the civilian world with a Certificate IV in Engineering qualification. It submitted that he had no confidence in any of the training provided by the Navy for him. The defendant also submitted Mr Williams would not have remained in the Navy, even if he had obtained his Certificate IV. The defendant submitted that the effect of these conclusions was that the maximum value of any lost earnings was in the order of $30,000.
Mr Williams was a very good sailor who, having had his Certificate IV training provided initially and then cancelled, was intending to cope with this disruption to his Naval training by completing a Certificate III in diesel fitting.
The truth of the inadequacy of his training in the Navy only became apparent to him when he undertook his outplacement training with Penske. It obviously came as a real shock. He realised that much of his training had not been appropriate to obtain a trade qualification - which is what he had intended upon entering the Navy - and, accordingly, he ceased to be enlisted in the Navy.
The circumstances leading to Mr Williams' discharge from the Navy reflected his original intentions. I am satisfied that those intentions were, as he told the psychologist, to obtain his Certificate IV and then to use that qualification to obtain well paid employment outside the Navy. Once it became apparent to him that such training as he had been given was wholly inadequate when compared with the second year apprentice with whom he was partnered at the Penske workshop, he applied for a discharge.
Mr Williams obtained employment in an external industry easily and has risen through various leadership until he has become a Team Leader. His employment has been stable, and he has been a stable employee. This fact confirms in my mind that he was always likely to be a strong candidate for obtaining employment in the fields described by Mr Hunter and in the sort of role which he noted would have been available.
In my view, given that Mr Williams was always intending to obtain a qualification, there is a high degree of probability that he would have left the Navy with a Certificate IV in Engineering in about June 2016, and taken up employment in an outside industry.
In my view Mr Williams' damages for his lost chance of obtaining employment outside the Navy once he had obtained a Certificate IV should be assessed at $100,000. Interest should be assessed on this sum, and it should be adjusted with respect to any taxation considerations.
[44]
Conclusion
I have found, by reference to each of the complainants, that they are entitled to damages in the amounts assessed for the value of the lost opportunity to obtain employment with a Certificate IV in Engineering.
It will be necessary for a calculation to be made for interest on the assessed amounts. The lost opportunity has been valued at the time each group member would have completed their Training Contract - generally at the end of four years - although, in some cases, that period was extended to take account of injury.
It will be necessary for the parties to agree on those calculations. Orders will be made to enable this to occur.
[45]
Costs
I see no reason why costs should not follow the event. The defendant should be ordered to pay the costs of this part of the proceedings - namely, from the delivery of the Court of Appeal judgment until now.
In light of the fact that this judgment does not determine the whole of the proceedings, such costs should be payable forthwith.
[46]
Orders
I make the following orders:
1. There will be a judgment in favour of each claimant in a sum to be determined.
2. Direct the parties to confer with a view to reaching agreement on the judgment sums (including interest).
3. Order that on or before 14 July 2023, the parties are to submit agreed Short Minutes of Order including with respect to any adjustment to the judgment sums with respect to taxation considerations. If no agreement is reached, I direct that each party is to submit the Short Minutes of Order for which they contend together with a written outline of submissions in support of their version by that date.
4. Stand the proceedings over to 17 July 2023 before Garling J.
5. Order the defendant to pay the plaintiffs' costs of the proceedings after 31 May 2019, being the date of delivery of the Court of Appeal judgment. Such costs are payable forthwith.
6. Liberty to apply.
[47]
Amendments
18 July 2023 - Correction of dates [156] and [247]
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Decision last updated: 18 July 2023