Searle v Commonwealth of Australia

Solicitors: Levitt Robinson Solicitors (P) McCullough Robertson Lawyers (D) File Number(s): 2016/45027 Publication restriction: Not applicable

Judgment

1. 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.)
2. 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.
3. 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").
4. 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.
5. 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.

History of Proceedings

1. 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").
2. 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.
3. 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.
4. 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.
5. 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.

Common Questions and Answers

1. 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."
2. 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."
3. 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.

This Hearing

1. 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.
2. 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.
3. 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)?
4. 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.
5. 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.

Outline of the Plaintiff's Case

1. 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.
2. 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).
3. 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.

Outline of the Defendant's Case

1. 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".
2. 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.
3. 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.
4. 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.

Principles of Law Relating to the Loss of a Chance

1. It is convenient at the outset to identify the principles of law relating to an award of damages for loss of a chance.
2. 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."
3. 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."
4. 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."

Terms

1. 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.
2. 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.
3. 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.)
4. 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".

"Nominal Term"

1. 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".
2. 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.
3. 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."
4. 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.
5. This conclusion is also consistent with the findings in the Appeal Judgment at [18] and [159].
6. 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.

Breach

1. 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.
2. 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."
3. 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)

Part Performance

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Certificate IV in Engineering

1. 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.
2. 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".
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Approach to Assessing Damages in this Case

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Individual Assessments

1. 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.

Clayton Searle

1. 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.

Personal Circumstances

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Mr Hunter's Evidence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Findings

1. 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.
2. 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.
3. 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.
4. 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.

Personal Circumstances

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Mr Hunter's Evidence

1. 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.
2. 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.
3. 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.
4. 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".
5. Mr Hunter's calculations included making an allowance for overtime, on-call work and shift work of the usual kind.

Findings

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Personal Circumstances

1. 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.
2. 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.
3. At the PSU, Mr Gregory completed small menial tasks such as digging, fixing walls, painting doors and assisting with minor day-to-day repairs.
4. 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.
5. 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.
6. 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.

Mr Hunter's Evidence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Findings

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Personal Circumstances

1. 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.
2. 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).
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Mr Hunter's Evidence

1. 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.
2. 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.

Findings

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Personal Circumstances

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Mr Hunter's Evidence

1. Mr Hunter undertook two assessments with respect to the lost opportunity for Mr Sparks to earn an income with a Certificate IV in Engineering.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Findings

1. 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.
2. 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.

Personal Circumstances

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Mr Hunter's Evidence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Findings

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Personal Circumstances

1. 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.
2. 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.
3. 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.
4. 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).
5. On 13 February 2012, the contract was registered by the Department of Education and Early Childhood Development for the State of Victoria.
6. 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.

Mr Hunter's Evidence

1. 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.
2. 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.

Findings

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Personal Circumstances

1. 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.
2. 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.
3. 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".
4. 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.
5. 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.
6. 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.

Mr Hunter's Evidence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Findings

1. 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.
2. 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.
3. 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.
4. 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.

Personal Circumstances

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Mr Hunter's Evidence

1. 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.

Findings

1. 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.
2. The plaintiff submitted that, ultimately, a sum of about $240,000 was a realistic estimate of the value of Mr Williams lost opportunity.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Conclusion

1. 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.
2. 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.
3. It will be necessary for the parties to agree on those calculations. Orders will be made to enable this to occur.

Costs

1. 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.
2. In light of the fact that this judgment does not determine the whole of the proceedings, such costs should be payable forthwith.

Orders

1. 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.

Amendments 18 July 2023 - Correction of dates [156] and [247] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2023