Freer v SydneyTheme Park Pty Ltd [1999] NSWCA 208

New South Wales Court of Appeal CITATION : Freer v SydneyTheme Park Pty Ltd [1999] NSWCA 208 FILE NUMBER(S) : CA 40727/97 HEARING DATE(S) : 26/05/99 JUDGMENT DATE : 23 June 1999

PARTIES : James Victor Freer v Sydney Theme Park Pty Ltd (t/as Australia's Wonderland) JUDGMENT OF : Meagher JA at 1; Fitzgerald JA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 7108/96; 866/97 LOWER COURT JUDICIAL OFFICER : Newton DCJ

COUNSEL : Ms Norton (Appellant) A M Colefax (Respondent) SOLICITORS : Stacks (Appellant) Colin Biggers & Paisley (Respondent) CATCHWORDS : Damages; past and future economic loss; motor vehicle accident and separate work-related accident; underestimation of impact of injuries on future earnings. DECISION : Appeal allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40727/97 DC 866/97 MEAGHER JA FITZGERALD JA

23 June 1999

FREER v SYDNEY THEME PARK PTY LTD JUDGMENT

1 MEAGHER JA: I agree with Fitzgerald JA. 2 FITZGERALD JA: The appellant was injured in an motor accident on 27 March 1995 due to the negligence of Ms Anna Liemski. 3 Sydney Theme Park Pty Ltd, which conducted "Australia's Wonderland", was a client of the appellant's employer. On 25 July 1995, the appellant attended "Australia's Wonderland" in the course of his duties. While there, he fell and was again injured due to the negligence of Sydney Theme Park Pty Ltd. 4 The appellant brought actions in the District Court against both Ms Liemski and Sydney Theme Park Pty Ltd. By consent, the two actions were heard together. 5 Ms Liemski admitted negligence and made no allegation of contributory negligence. Sydney Theme Park Pty Ltd denied negligence and alleged contributory negligence. The trial judge found that Sydney Theme Park Pty Ltd was negligent and that the appellant was not contributorily negligent. 6 His Honour went on to assess damages, which he apportioned equally between the respondents. The appellant appealed against the amount which he was awarded, and also challenged the costs order made by the trial judge in his action against Ms Liemski. 7 The appellant's claim against Ms Liemski was compromised prior to the hearing of the appeal, and the Court is now concerned only with the appellant's appeal against the damages which he was awarded in his action against Sydney Theme Park Pty Ltd. That appeal relates only to the amounts awarded to the appellant for past and future economic loss. It is appropriate to deal with the argument presented orally where there are differences from the written submissions. For example, the appellant pressed his argument in relation to future, rather than past, economic loss. 8 With some justification, the trial judge complained of the lack of detail and specificity in the evidence, including the medical evidence. In accordance with a common unsatisfactory practice, conflicting medical reports from a number of doctors were tendered, but only one was cross-examined. 9 No challenge was made to a finding by the trial judge that the injury at "Australia's Wonderland" was caused by a "fall … of such a nature that must have brought about significant soft tissue damage and … straining of the whole of the body, particular in respect of any earlier injury suffered in a motor vehicle accident". While his Honour considered that the plaintiff "would have recovered in due course from the affects [sic] of the motor car accident", he held that it was "… likely that he would always have had some affects … in the thoracic back area, arising from the … fall, but not sufficient to prevent him in the long term from full time working". 10 Later, His Honour said: "A culmination of the two incidents exacerbated by [a] subsequent lifting incident in April 1995 has, on the evidence, undoubtedly distinctly reduced his working capacity and left him with some persistent discomfort. It must I think be remembered that the plaintiff had and has a congenital and no doubt progressive degenerative condition of the spine. It was apparently substantially asymptomatic prior to the motor vehicle accident. It seems to me likely, however, that as the years passed he may well have found himself unable to do work in sometimes cramped spaces without having had either of the accidents." 11 After referring to the circumstance that there was "little precise evidence", the trial judge assessed past economic loss at $20,000, and, having said that "future economic loss … can only be a matter of assessment rather than precise calculation", awarded the appellant "$30,000 discounted by 15% for the eventualities of life coming to an overall figure of $25,500…". 12 The foundation of the appellant's argument for an increase in his award for future economic loss was that he was no longer considered for "call-out" work by his employer, including after-hours "call-out" work, and that, as a result, he was capable of earning significantly less than prior to his injuries. More particularly, he submitted that, whereas he and a Mr Ross McKee were previously "comparable employees" in the sense that, prior to his injuries, their earnings were "comparable", he now earned $334.000 per week less than Mr McKee, who continued to be given "call-out" duties. On this basis, the appellant claimed that the amount which he had lost to the date of trial was $32,641, and that his future economic loss for which Sydney Theme Park Pty Ltd is liable is: "$334 x 665.3 x 85% x 50% = $94,439." 13 Correctly, in my opinion, the trial judge rejected the appellant's submission that his lost earning capacity was capable of exact calculation by reference to differences between his and Mr McKee's respective earnings in the material periods. The evidence did not justify such a course. 14 Conversely, his Honour appears to have underestimated the impact on the appellant of his inability, due to his injuries, to perform "call-out" work. The somewhat scanty evidence, which supports the trial judge's conclusion that the appellant had lost $20,000 in the two to two and a half years between the injuries and trial, warrants a finding that the appellant's loss of "call-out" work had probably reduced his earnings by about $6000 to $7000 per year. 15 The appellant, who was born on 30 December 1948, had a pre-existing - but, until he was injured, asymptomatic - degenerative spinal disease, which the trial judge considered would, even if the appellant had not been injured, have limited the duties which the appellant was able to perform. 16 Further, the appellant's award for future economic loss must obviously be discounted to take account of life's vicissitudes. 17 Finally, it must be borne in mind that Sydney Theme Park Pty Ltd is only liable for half of the appellant's economic loss. 18 When all these matters are taken into account, I am of opinion that the appellant's damages award against Sydney Theme park Pty Ltd should be increased by $35,000. 19 I would accordingly allow the appeal with costs, and vary the judgment against Sydney Theme Park Pty Ltd by increasing the damages awarded from $66,662 to $101, 662.