Target Australia Pty Ltd v Moloney [2000] VSCA 124

Court of Appeal (Vic)|2000-07-24|Before: BROOKING, BATT and CHERNOV, JJ.A.

For the reasons which follow, I have come to the conclusion that the jury's verdict of $250,000 for damages for pecuniary loss, and more particularly the component of approximately $200,000 for the future economic loss, exceeded what was reasonable even on the best view of the evidence for the respondent. In assessing the respondent's earning capacity if she had not suffered the fall, the jury had to come to a view, on such evidence as there was and on their own experience of life, on the likely age at which the respondent would have retired from the workforce if her hip condition did not force her to retire prematurely. They also had to come to a view on whether and, perhaps more importantly, when she would have needed a hip replacement and as to the effect of a replacement and of the condition necessitating it upon her earning capacity. They further needed to assess the security of continued employment for her having regard to her lack of qualifications and skills other than from experience. In addition, they had, of course, to allow for other contingencies both of a general nature and specific to her. A possible favourable contingency falling for consideration was that the appellant might engage her as a full-time employee. But the evidence showed that by the time of the trial, to quote Ms O'Donnell, "The structure now mainly involves [sic] around part-time positions rather than full-time - the full-time positions are mainly held by trainees ... in the management of the store", so that on the selling floor there were then three full-time staff and "about 40, 30, 38" part-time. Since the jury were not to speculate when they were able to know[15], they were to act on this evidence showing how small the proportion of full-time shop assistants had become by the time of the trial. But it is true that in assessing the respondent's earning capacity after her fall the jury had to take into account the insecure nature of the job of delivering pizzas in a small country town (and, perhaps, in its neighbour), and also the possibility that, , the hip condition might prevent the respondent from engaging in part-time work either at all or to the extent that she was doing so at the time of trial. It may also be that, although the onus of proof lay on the respondent, the jury were entitled to find that at the time of the trial the respondent was not really able to work five or four days of five hours in each week even though her counsel went to the jury on the basis that she was working, say, 20 hours per week.

Weighing up all the considerations, I consider that a figure of some $200,000 for future economic loss simply does not make proper allowance for adverse contingencies and other factors affecting the respondent's pre-accident earning capacity such as her security of employment as a part-time employee and the likely date at which she would have retired from the workforce. The requirement that the assessment be evaluated by this Court on the most favourable view of the evidence to the respondent does not mean that adverse contingencies, which are substantial in this case, should be disregarded. Even if it was open to the jury to proceed on the basis that the respondent was suffering a net loss of $180 per week, the present value of which to age 65 on the 3 per cent table was $206,820 or a little more than the amount awarded, that figure required, in my view, very substantial downward adjustment. If the jury proceeded on the basis that the respondent would probably have worked to age 65, then, in my view, it was bound to discount the sum it arrived at by at least 20 per cent. I regard the workings put to the Court for the respondent in writing and orally to justify the verdict as not realistic. In reaching the conclusion that the sum assessed was unreasonable, I take some comfort from the fact that, although counsel for the respondent made some reference to the possibility of a higher figure, he made it very clear to the jury, in my view of his statements referred to earlier, that the appropriate figure was $150,000 for future economic loss.

In accepting the parties' invitation to re-assess the damages for pecuniary loss, I would bring the damages for past loss of earnings up to date as at present at a round figure of $50,000. As regards future economic loss, remembering that actuarial tables are only a commencing guide[16], taking into account the various contingencies and other factors to which I have earlier referred and having general regard to the case presented and figures put to the jury on behalf of the respondent, I would assess future economic loss at $125,000. The total damages for pecuniary loss I would therefore assess at $175,000. From that figure it will be necessary to make the statutory deduction of $225.60.

I would invite the parties in the first instance to calculate or agree interest to date on the resultant sum and also on the net figure of $80,000 for damages for pain and suffering, bearing in mind that the respondent has paid the appellant $75,000 since judgment.

For the reasons I have given I would allow the appeal to the extent indicated.

[1] The word "full-time" seems to be used in the evidence as the opposite of both casual and part-time.

[2] The employment structure had changed by the time of the trial, as discussed later.

[3] By sub-s.(19) "serious injury" means, so far as material, "(a) serious long-term impairment or loss of a body function; or ... (c) severe long-term mental ... disorder ...". In Hanrahan v. Davis [1997] 1 V.R. 285 it was held that a worker might at trial satisfy the requirement contained in s.135A(2) that the worker's employment-related injury was a "serious injury". The effective over-ruling of that decision by the insertion of sub-s.(2A) by s.32(1) of the Accident Compensation (Amendment) Act 1996 did not apply to the respondent's proceeding since, by s.32(2), the amendment applied in respect of any proceedings brought on or after the commencement of s.32, which, by s.2(1), was 25 June 1996.

[4] A transcript of the Associate's question to the jury foreman omits these three words, but it may well be that the transcript, which is defective in many other places, is defective here also. In any event, the jury, having had the questions explained to them by counsel and the judge several times and having been given a sheet containing them, could have been in no doubt about the subject matter of the question put by the Associate immediately after the question relating to serious injury.

[5] His Honour did not formally pronounce an order for amendment, though he may be taken to have done so tacitly, since he said it was appropriate and obtained the concurrence of counsel for the appellant with that view. To judge by the statement of claim included in the Appeal Book, the amendment was not made in writing. But the trial proceeded, and the appeal was argued, as though amendment had been ordered and made.

[6] Save for a passing reference to the filing of further reports received from the appellant's doctors.

[8] [1992] VicRp 58; [1992] 2 V.R. 129 at 138 (proposition 6).

[10] Rukavina v. Incorporated Nominal Defendant [1992] VicRp 49; [1992] 1 V.R. 677; and see Williams, Civil Procedure - Victoria, paras.[64.01.395 to 64.01.405].

[11] [1964] HCA 39; (1964) 111 C.L.R. 234 at 241-242, 250-251 and especially 257-258.

[12] Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

[13] Australian Iron & Steel Ltd. v. Greenwood [1962] HCA 42; (1962) 107 C.L.R. 308 at 311-312.

[15] Kizbeau Pty. Ltd. v. W.G. & B. Pty. Ltd. [1995] HCA 4; (1995) 184 C.L.R. 281; Willis v. The Commonwealth [1946] HCA 22; (1946) 73 C.L.R. 105 at 109 and 116; and VACC Insurance Co. Ltd. v. Lekkas [1999] VSCA 31; [1999] 2 V.R. 529.

[16] and that this Court does not have actuarial figures for the present value of $1 per week from age 29 or 30.

At a glance

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Judgment (19 paragraphs)

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Cases Cited (1)