CAMELO CATENA v GEORGE EDWARD CORNISH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and HANDLEY JA 1 November 1993 [1993] NSWCA 51 FACTS The appellant sought to challenge an award of damages for economic loss flowing from a work injury sustained by the respondent, submitting that the respondent failed to discharge his onus of proof on the issue of future employment capacity. HELD: The submission must fail. Firstly, there were a number of assumptions which led his Honour to underestimate economic loss. Secondly, the onus was really upon the appellant, ie to prove that the respondent failed to mitigate his loss. Thirdly, the facts indicated that his chances of future employment were negligible, and the question of onus therefore never arose. Meagher JA. In this case the appellant appeals against a verdict which Wood J gave the plaintiff on 30 July 1991 in the sum of $295,189. The plaintiff was born in 1936 in the United Kingdom and migrated to this country in 1954. From 1954 to 1956 he was employed in various manual occupations. From 1966 to 1976 he worked as a self-employed motor mechanic in Jerilderie where he became very skilful. In 1976 he sold his own business, advancing the reason that he could not manage the paperwork involved, and became employed elsewhere, at Jerilderie Motors doing mechanical repairs, panel beating and spray painting. He was very successful in that occupation, to the extent that his employer who gave evidence, said that because of the conspicuous speed with which he worked he was paidthe statutory award wage plus 60%; his employer was entirely satisfied with him. Then on 19 April 1992 was the accident with which we are concerned and as to which there is no doubt that the appellants bear the responsibility. He eventually returned to work and, with some interruptions, resumed work but on reduced hours. After the accident his employer said in evidence that he became slow and he was, to quote the employer's words, 'uneconomic.' His employer made it plain that as soon as this litigation subsides he will be dismissed. His Honour accepted all this evidence. There was little or no evidence to the contrary and as far as I can see in the present case there is no challenge to it. Where the challenge does arise is in his Honour's award of economic loss, which was in the figure of $155,744. His Honour assumed that the plaintiff would have worked until he was sixty-five and adopted a figure of $405.45 net per week, being the award rate plus 50%. This method of calculation involves a double discount from the amount which it might be thought the plaintiff is entitled, first because the weekly amount taken by his Honour was the award wage plus 50%, instead of the award wage plus 60%; and secondly because it assumes that the plaintiff would have retired at the age of 65, when it is quite possible he may not have done so. 2 UNREPORTED JUDGMENTS One other assumption underlies his Honour's calculation of future economic loss, and that is it assumes the virtual unemployability of the plaintiff. Itis that which is in issue. The appellants are not content with the discount which his Honour allowed; they claim his Honour's finding should be further reduced. The allegation is that the plaintiff has not discharged an onus as regards future economic loss. The defendants claim that this onus was not discharged. As a consequence his Honour was not entitled to calculate damages on the basis that he was virtually unemployable. Presumably on this basis, to be logical, the appellants would have to say that there should have been no figure awarded by his Honour for future economic loss. In my view this submission must be rejected and the appeal be dismissed with costs. Although expressed in various ways, the essence of the appellant's submission that his Honour was in error in holding that they bore some onus as to future economic loss, the first answer is this: as far as onus is concerned the plaintiff proved precisely what degree of residual capacity remained to him. The sole question remaining in the trial on this branch of it was how that admitted residual capacity could be exploited remuneratively by him. Presumably the appellants are saying that he did not prove that he had made any effort to employ his remaining residual ability. If that is the appellant's claim what they are really claiming is that the plaintiff had not sufficiently mitigated his damages, and this is an issue on which the appellants must bear the onus. The second thing to be said is this: in my viewit is not really an onus question at all. On the facts as found by his Honour, onus simply does not come into the matter. There was a question about what work the plaintiff was capable of doing in the future. His Honour found virtually nil. He was on the employment 'scrap heap.' There was ample evidence to justify this finding by his Honour — onus or no onus. For example, the employer, Mr Crittenden, was asked this question: Q. I take it you would be familiar with the general industry in Jerilderie. Do you believe he would get a job anywhere else in Jerilderie? A. No, I don't think so. There is one other panel beater there, a family run business, and I don't think they would employ anybody else. For these reasons in my view the appeal should be dismissed with costs. Clarke JA. I agree. Handley JA. I agree. Clarke JA. The order of the Court will be that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: G PETTY Solicitors for the appellant: SOLICITOR FOR GIO Counsel for the respondent: R J BURBRIDGE QC/J SAINTY Solicitors for the respondent: MACKENZIE and VARDANEGA