Gos CATCHWORDS Damages - Appeal - Allegedly inadequate - No new question of principle involved. ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY ROBERT WILLIAM MUIR v. ROSITA GOMEZ and ALEXANDER SALVADOR GOMEZ No. ACT G53 of 1985 CORAM: Evatt, Kelly & Neaves JJ 5 December 1986 Canberra, A.C.T. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) No, ACT G.53 of 1985 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ROBERT WILLIAM MUIR Appellant AND: ROSITA GOMEZ First Respondent AND: ALEXANDER SALVADOR GOMEZ Second Respondent ORDERS JUDGES MAKING ORDERS: Evatt, Kelly and Neaves JJ WHERE MADE: Canberra, A.C.T. DATE: 5 December 1986 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. * IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G.53 of 1985 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ROBERT WILLIAM MUIR Appellant AND: ROSITA GOMEZ First Respondent AND: ALEXANDER SALVADOR GOMEZ Second Respondent CORAM: Evatt, Kelly and Neaves JJ 5 December 1986 REASONS FOR JUDGMENT EVATT, KELLY and NEAVES JJ On 23 September 1982 the appellant, who was then a motorcycle policeman in the Australian Federal Police, Sustained severe personal injuries due to the negligence of the respondents. At the time of the accident he was standing behind a motor vehicle, which he had stopped, and was talking to its driver. He had parked his motorcycle still further behind the vehicle. A motor vehicle owned by the first respondent and driven by the second respondent collided with his motorcycle and squashed the appellant between his motorcycle and the vehicle which he _ had -2- stopped. He sustained comminuted fractures of the middle and lower third of each of the right and left femurs and laceration of the left knee. In the Supreme Court of the Australian Capital Territory on 9 August 1985 he was awarded damages totalling $255,127.25. He has appealed against the adequacy of that award, alleging that the learned trial Judge erred in the methods by which he assessed the amount of his claims for past economic loss and for future economic loss. The learned trial Judge found that the appellant, who waS born on 3 May 1952, joined the Australian Capital Territory Police Force on 20 May 1974 as a probationary constable. On 28 November 1974, at the end of his training, he was assessed as above average with the potential to become a good police officer. He advanced to the rank of Constable First Class on 20 May 1978 and two years later to the rank of Senior Constable. On 30 May 1982 he was assessed within the Australian Federal Police Force, with which the Australian Capital Territory Police Force had merged, as of a good standard. By the date of the accident he had passed two out of four examinations to qualify himself for promotion to the rank of Sergeant. The appellant would, so the learned trial Judge found, have successfully qualified for that rank by passing the other two examinations and, subject to the vicissitudes of life, would have continued his career which he enjoyed until reaching the compulsory retiring age of 60 years. In all the circumstances the learned trial Judge's findings as to x ~3- the appellant's immediate employment prospects at the date of the accident show that but for the accident the appellant would have been promoted to the rank of Sergeant by the date of trial. He accepted that the appellant could confidently have expected to have reached the rank of Station Sergeant and probably commissioned rank before retirement. He found that the appellant did not have any particular educational achievements. Having gained the School Certificate in 1967 at the age of 15 he commenced employment as a bank clerk. He remained so employed, although in different banks, until 1970 when he resigned to begin an apprenticeship as a motor mechanic. He did not complete his apprenticeship, resigning when his employer took him off petrol serving duties at weekends. He then joined the Postmaster General's Department and served in the Postal Investigation Section for two and a half years following which he joined the Australian Capital Territory Police Force. Other relevant findings in respect of the appellant's economic loss between the date of the accident and the date of trial were as follows:- (a) At the time of the accident the appellant was receiving the award salary as a second year Senior Constable plus allowances. (b) He had no tax deductions or tax rebates for dependants. (d) (e) (f£) (g) (h) » -4- He was retired, medically unfit, on 16 November 1983 and cannot be employed as a policeman again. Continuing in his employment as a police officer, he would have been paid award rates plus overtime and penalties in the same ratio as before the accident; He was certainly fit enough for sedentary work by April 1984 and may well have been fit for a range of jobs by the end of 1983. After the accident the first position which he took was with Lifeline. He held that position, apparently not very satisfying and unpaid, for three months "on and off". By July 1984 he felt fit enough to try to get a job earning money. He rejected the possibility of a job as a hire car driver because he decided that he would be unable to carry suitcases for passengers. After trying for quite a few jobs he obtained employment as a courier driving a shuttle van which had manual transmission. Because of the pain in his legs from which he was suffering by the end of each working day he resigned that job after only three weeks. In May 1984 he commenced a real estate sales course at the TAFE College, Reid, being required to attend lectures for six hours each week. By May 1985 he had successfully completed the course and qualified for a diploma. . -5- (i) In May 1985 he applied for a job with a real estate company but was unsuccessful. (3) He did not accept a position with an armoured car firm and gave no further consideration to a job involving driving a bus with manual transmission. (k) By the date of trial no other jobs had come up that he would have been interested in doing. His preference was for outdoor work. He would have been disinclined to accept a clerical position even 1f offered one. The learned trial Judge also said:- "I was left with the impression that so far the plaintiff has been very selective about taking employment. I think there 1s much force in the submission made on behalf of the defendant that, because he has been in receipt of workers' compensation and superannuation, the plaintiff has been disinclined to exploit his residual earning capacity up to the present time." There was actuarlal evidence before the Court estimating at $67,012 what the appellant's after tax earnings would have been between the date of the accident and the date of trial if he had continued as a member of the Australian Federal Police throughout that period, had not been promoted beyond the rank of senior constable, had been paid the award wage plus overtime and penalties and had no tax deductions or tax rebates for dependants. His Honour thought 1t reasonable to accept the actuary's calculations as the assumptions upon which those calculations were based were established by the evidence or might reasonably be inferred. His Honour then considered whether there were x -6~- amounts to be offset against the figure of $67,012 and, ain the result, he concluded that 1t was reasonable to allow the appellant $40,000 for past economic loss. In arriving at this conclusion his Honour had regard to the risk factors inherent in the occupation of a motorcycle policeman and to the appellant's earning capacity between the date of the accident and the date of trial. His Honour clearly did not accept as a true reflection of the appellant's earning capacity during that period the fact that he had been employed for gain for no more than three weeks. Counsel for the appellant relied upon a series of calculations as to the range of after tax earnings which the appellant would have received had he engaged in various occupations between the end of 1983 and the date of trial as Showing that the amount of $40,000 allowed by the trial Judge was manifestly too low. The occupations canvassed were Public Service Clerical Assistant Grade 1, Public Service Clerk Class 1, courier and real estate agent. Counsel calculated, and the calculations were not challenged, that the appellant's after tax earnings as a Clerical Assistant would have been between $9,092 and $17,184, as a Clerk Class 1 between $11,511 and $20,521, as a courier $18,352.40 and as a real estate agent between $8,384 and $40,512. It appears most unlikely that a man with the capacity, maturity and experience which his Honour found the appellant to possess, would have been able to earn no more than the lowest possible figures put forward by his . ~7- counsel. It seems reasonable to assume that in the period un question he would have earned at least $15,000 or $16,000. That represents but a modest $10,000 or $10,666 a year net after taxation, earnings well below the national average. His Honour did not indicate the amount which he estimated the appellant would have been able to earn in the relevant period but it was clearly open to him to conclude that it would have been an amount in excess of $16,000. It was also submitted that the trial Judge must have discounted too heavily for unfavourable vicissitudes arising from the appellant's high risk occupation as a police motor cyclist. We have given careful consideration to counsel's submissions. It may be that it would not have been unreasonable to include in the award a greater sum than $40,000 on account of past economic loss but we are unable to say, having regard to the findings which his Honour made, that any basis has been shown for this Court to intervene. On the whole of the material, we are unable to say that the faillure to include in the damages awarded an amount on account of past economic loss in excess of $40,000 renders the overall award manifestly too low. As to future economic loss in the period from the date of judgment to the appellant's 60th birthday, his counsel assumed that as a Public Service Clerical Assistant Grade 1 he would have earned a total of between $100,815 and $190,550, as a Public Service Clerk Class 1 $127,650 to ' -8- $227,550, as a removalist $203,500 and as a real estate agent between $92,971 and $449,217. He adverted to the fact that the learned trial Judge had accepted that the notional net loss after taxation suffered by the appellant amounted either to $352,600 or $366,392, depending on the rank 1t was assumed the appellant would have reached in due course, a discount rate of 3% per annum with no allowance for inflation or for tax upon income from investment of the sum awarded being used. Using the figure of $366,392, he put a number of figures which he submitted the learned trial Judge should have used in establishing the figure to be awarded in respect of the appellant's future economic loss. The figures he put ranged from $273,421 to $162,892 and represented the difference between $366,392 and the sums of $92,971, $203,500 and $227,550, specific sums referred to above aS representing the amount or falling within the ranges of amounts which were said to represent the appropriately discounted residual earning capacity of the appellant had he engaged in the several occupations referred to. However, there was no definitive finding by the learned trial Judge that he would have engaged in those occupations. Significantly he said:- "With regard to the plaintiff's residual earning capacity, I have already referred to educational qualifications, work experience and talents. It seems to me that there are a range of employments for which the plaintiff would be suitable. He has' had bank experience, some motor industry experience and 9 years, 4 months as a policeman. He 1s well spoken and of good appearance, relatively young, and so far as I can tell, with a sound sense of responsibility." . -9- His Honour then noted the submission on behalf of the respondents that included in the range of employments avallable to the plaintiff was that of selling real estate. He then went on to say:- "I am quite unable to say whether' the Plaintiff will get himself involved in selling real estate or not. When this litigation 1s out of the way, I am sure that he will want to do something and he will have valuable support from his wife in whatever he chooses to do. But he has certainly lost a police career which would have earned him a comfortable income and because of his injuries and disabilities he is going to be somewhat restricted in any employment that he takes on. I am not able to prophesy what he will be able to earn. I think therefore that the most reasonable course is to assess damages on the basis that he has lost about one third of his pre-accident earning capacity. Using the above actuarial figures as a guide and taking into account the vicissitudes of life, I provisionally assess the sum of $120,000 for loss of earning capacity." It is to be noted that the learned trial Judge made no finding of the occupation that the appellant might take up. He made his assessment of the appellant's residual earning capacity on the basis of the evidence and his assessment of the appellant as he saw him in the witness box. We do not have that advantage and such an assessment is eminently a matter for the trial Judge. He quoted during the course of his judgment the words of Lord Diplock 1n Paul ve Rendall (1981) 34 A.L.R. 569 at p.571: "A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of the amenities of life can only be intuitive and the assessment of future economic loss involves a double exercise in the art of prophesying not only * -10- what the future holds for the injured plaintiff but what the future would have held for him if he had not been injured." That passage appears peculiarly applicable in this case. We are unable to see where, in making his estimates of past economic loss and of loss of residual earning capacity, his Honour erred either in the approaches he used or by virtue of the fact that the figures he finally selected were such that no reasonable Judge at first instance could have fixed upon them. In the circumstances the appeal must be dismissed with costs. I certify that this and the wine preceding pages are a true copy of the Reasons for Judgment herein of ays Henex> de—dustiee the Co-at. Associate Datea: s*S Cece mee ASG "oe wok eto esct