15 Notwithstanding the error in his Honour's judgment as to the effect of Dr Mahoney's report, I am of the opinion that, on the totality of the evidence and particularly in circumstances where the respondent was unreservedly accepted by the trial judge, the finding was open to his Honour on the evidence.
16 As to the future economic loss, his Honour stated:
"[T]he [respondent] has been rendered a permanent light-duties person by the subject accident and … it would be unrealistic to believe that the [respondent] will achieve comparable employment as a highly paid, working foreman in the future, let alone employment as a labourer. His future, if any, must lie in some form of self-employment in which he has complete control over his exertion activities and hours of work, and given the level of back disability and his lack of general education and higher management training I am of the view that any assessment of the diminution of the [respondent's] established earning capacity which is less than two-thirds of the capacity proven in the employ of the defendant would be a positive injustice to the [respondent]."
17 Such an assessment was open to his Honour on the evidence. Indeed, there was some medical evidence to that effect, albeit given prior to the February 1997 incident. That was the evidence of Dr Anderson in his report dated 9 October 1996.
18 In my opinion, it was open to his Honour to find some suitable demarcation point when the period of total incapacity ceased. He found that to be the date of hearing. It could have been argued that it ceased prior to that. It equally could have been argued that he had continuing total incapacity for a period after the hearing. Having regard to the whole of the evidence and his Honour's acceptance of the respondent, it was clearly open to the trial judge to choose the point, which in fact was the date of hearing, for the period of total incapacity and he thereafter assessed him as being partially, or having a partial interference with his earning capacity to the extent which his Honour did.
19 I consider that the appeal should be dismissed with costs.
20 DAVIES AJA: I agree with Beazley JA. I make these further observations.
21 As to past loss, the crux of the appellant's submission was:
"It is apparent from his Honour's judgment that he assessed the plaintiff's future loss of earning capacity at the rate of two-thirds of his pre-injury capacity for work. There is no warrant on the evidence for an assessment of the respondent's past loss of earnings at a different rate."
22 The submission put the point that, in a calculation of damages resulting from a loss of earning capacity, the assessment for past loss and for future loss should be made on the same basis. In my opinion, that submission proceeds on a misapprehension of the law. It is not in dispute that an injured plaintiff recovers damages because his earning capacity has been diminished and because the diminution of his earning capacity is, or may be, productive of financial loss. That is the basis of the calculation. However, in the assessment of damages, the Common Law shows a preference for certainty, for actuality over prophecy. Therefore, in the assessment of past loss, the Common Law looks to the losses that have actually occurred up to the date of trial. This point was put in Graham v Baker (1961) 106 CLR 340 at 346-347 when Dixon CJ and Kitto and Taylor JJ said:
"So far the matter has been discussed as if the right of a plaintiff whose earning capacity has been diminished by the defendant's negligence is concerned with two separate matters, i.e. loss of wages up to the time of trial and an estimated future loss because of his diminished earning capacity. It is, we think, necessary to point out that this is not so. A plaintiff's right of action is complete at the time when his injuries are sustained and if it were possible in the ordinary course of things to obtain an assessment of his damages immediately it would be necessary to make an assessment of the probable economic loss which would result from his injuries. But for at least two obvious reasons it has been found convenient to assess an injured plaintiff's loss by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss." (emphasis added)
23 The result in Graham v Baker was that their Honours held that sick pay which an injured plaintiff had received should be taken into account in lessening the amount of the plaintiff's damages, for it had reduced the amount by which his diminished earning capacity had been productive of financial loss. I need hardly add that sickness benefits are not relevant at all to the question of ability to earn but they are relevant to, and by reason of the decision of the High Court are taken into account in, the assessment of proved actual loss up to the time of the trial.
24 In the present case, the respondent, Mr Frank Ranieri, proved that he was willing to work but was unable to do so. The trial judge accepted that he was unfit for employment at the time of the trial. Mr Ranieri's actual losses were proved and that figure was taken into account.
25 The appellant, Visyboard Pty Limited, did not put forward at the trial any matter that ought to have been taken into account by way of mitigation of those proved losses. It did not put, for example, that an offer of employment had been made to Mr Ranieri which he had rejected. Indeed, a fact before the trial judge was that it was Visyboard's dismissal of Mr Ranieri from its employment which had resulted in his loss. In my opinion, the trial judge was correct in his approach to the assessment of past losses.
26 As to future losses, the crux of the submission was, and I quote:
"There is an irreconcilable tension between the respondent's work history and the medical evidence on the one hand and a finding that the respondent will carry into the future an earning capacity of no greater than one-third of his pre-injury capacity."
27 This submission highlighted the distinction between the medical experts' view of the diminution in physical capacity and the assessment made by the trial Judge of the loss of earning capacity. The submission suggested that there should be a correlation between the loss of physical capacity and the loss of earning capacity. Again, in my view, the submission proceeds on a misapprehension of the law.
28 Earning capacity involves an ability to engage in remunerative employment and this itself involves an ability to find an employer who is prepared to engage and remunerate the disabled person.
29 Lord Atkinson said in Ball v William Hunt & Sons Limited [1912] AC 496 at 505:
"The earning of wages depends as much on the demand for the workman's labour as it does upon his physical ability to work. If because of his apparent physical defects no one will employ him, however efficient he may be in fact, he has lost the power to earn wages as completely as if he was paralysed in every limb.