New South Wales Court of Appeal CITATION : Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products [2001] NSWCA 382 FILE NUMBER(S) : CA 40935/99 HEARING DATE(S) : 6 September 2001 JUDGMENT DATE : 1 November 2001 PARTIES : Bradley James Gillard v Hunter Wire Products Pty Limited t/as Hunter Screen Products JUDGMENT OF : Priestley JA at 1; Sperling J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT DC 43/98 FILE NUMBER(S) : LOWER COURT His Honour Judge Delaney JUDICIAL OFFICER : COUNSEL : Appellant - I. M. Wales SC, M. Condon Respondent - A. Hewitt SC, A. Hourigan SOLICITORS : Appellant - Walsh & Blair Respondent - Rankin & Nathan CATCHWORDS : Quantum appeal as to assessment of past and future economic loss DECISION : Appeal allowed - see par 27. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40935/99 DC 43/98 PRIESTLEY JA SPERLING J Thursday, 1 November 2001 GILLARD v HUNTER WIRE PRODUCTS PTY LIMITED t/as HUNTER SCREEN PRODUCTS QUANTUM APPEAL AS TO ASSESSMENT OF PAST AND FUTURE ECONOMIC LOSS – trial judge had used "cushion" or "buffer" method for both – this method not appropriate in light of facts as found by trial judge – reassessment of losses therefore necessary – judgment for higher figures to be given – draft orders to be brought in incorporating figures found by this court, together with amounts for interest and superannuation, and otherwise reflecting this court's opinion on 9 November 2001. ORDERS The parties are to bring in draft orders reflecting the figures as adjusted by this decision, and including amounts for interest and superannuation, at 9:30 AM on 8 November 2001. The draft orders should provide for the judgment below to be set aside, the judgment in its place to take effect from the date of Delaney DCJ's judgment and for the defendant to pay the plaintiff's costs of the appeal. If there is any dispute about the costs orders, both plaintiff and defendant should file written submissions before 6 November 2001, so that the court can make all necessary final orders on 8 November 2001. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40935/99 DC 43/98 PRIESTLEY JA SPERLING J Thursday, 1 November 2001 GILLARD v HUNTER WIRE PRODUCTS PTY LIMITED t/as HUNTER SCREEN PRODUCTS 1 THE COURT: The plaintiff (Mr Gillard) who obtained judgment for $163,045 in the District Court against the defendant (Hunter Wire Products Pty Limited) appeals against that judgment on the ground that the trial judge (Delaney DCJ) used an inappropriate method for calculating part of the damages which caused the judgment sum to be less than it should have been. 2 The plaintiff's claim had been that on 11 October 1989, when in the employ of the defendant and when he was aged twenty-eight, he had suffered a severe injury to his lower back because of the defendant's unsafe system of work. In this appeal the defendant has not sought to raise again the issue of its liability to the plaintiff. The only questions in the appeal have been whether the method used by the trial judge for calculating the past and future economic loss of the plaintiff were appropriate in the circumstances of the case. 3 The heads of damage totalling the judgment figure were as follows: 1. Non economic loss – 45 per cent of the maximum awardable under s 151G1(2) of the Workers Compensation Act - $81,000. 2. Future medical expenses - $1,500. 3. Past medical expenses - $5,318 to be credited to defendant - $5,863. 4. Past economic loss - $30,000. 5. Future economic loss - $50,000. 6. Interest - $3,000. 4 The trial judge said that he had included in the figures for past and future economic loss an allowance for what the plaintiff had claimed for loss of superannuation. 5 As mentioned, the only matters in issue in the appeal concerned past and future economic loss and loss of superannuation. In regard to these, the trial judge said that, in his view: "... the only way in which one could possibly approach the assessment of losses in this case for diminished capacity and for past economic loss is by the application of a cushion or buffer representing the overall loss of the plaintiff's capacity." 6 He then went on to say he had arrived at his figure for past economic loss on the basis of an allowance "for a loss of opportunity for past employment". 7 The trial judge had given reasons for adopting the cushion or buffer approach. The plaintiff's primary point in the appeal was that the reasons given were unsoundly based and had led the trial judge to arrive at figures significantly too low. 8 The trial judge's approach to the assessment of past and future economic loss was different from that which had been put forward on behalf of the plaintiff and upon which (apparently) the parties had based their arguments before the judge. The plaintiff's argument was based on Exhibit B which was a document containing basic information, as follows: "BRADLEY GILLARD d.o.b.: 11/6/61 (now aged 38) Multiplier for life expectancy = 909.9 (39 years) Multiplier to age 65 = 783.0 Accident: 18/10/89 Schedule of Economic Loss: Financial Year Plaintiff's Wages Comparable Loss 1995 $5,691 $21,262 $15,571 1996 $1,571 $21,677 $20,096 1997 $5,680 $22,440 $16,760 1998 $nil $23,149 $23,149 1999 $1,690 $24,303 $22,613 2000 (to date) $3,150 $4,206 $ 1,056 (9x$350) (9x467) $ 99,245" 9 At the trial, the defendant agreed that the figures in Exhibit B were mathematically correct, but did not accept that the plaintiff had lost the difference between the "Plaintiff's wages" and "Comparable" columns. 10 To understand the significance of Exhibit B, some of the facts found by the trial judge need to be stated. 11 Following his accident, the defendant continued to employ the plaintiff for some years on lighter duties. During these years he suffered no loss as a result of his injury. He was dismissed from his employment for reasons not shown to be connected with his injury during 1993 although the formal date of termination was February 1994. From that time forward he intermittently obtained work of a lighter kind. His earnings from his various jobs during each following financial year until the date of trial are shown in the first two columns of Exhibit B. 12 A particularly important finding of the trial judge was his acceptance of the medical evidence in a report from Dr Bleasel, whom the trial judge described as "a pre-eminent neurosurgeon". As Dr Bleasel's report was dated 10 November 1998, the trial judge said he should not accept it before carefully considering medical reports from other doctors made at times closer to when the plaintiff suffered his injury. Having gone through that process, he came to the conclusion that he could properly and would rely on Dr Bleasel's opinions. He also found that the plaintiff was a generally truthful and reliable witness. 13 In the course of his very thorough report, Dr Bleasel had said that the plaintiff had little chance of finding work on the open labour market, an observation which, it seems clear, was adopted by the trial judge along with his acceptance of the rest of Dr Bleasel's opinions. Another fact, clear from the evidence, and not the subject of controversy, was that from the time the plaintiff began work, his record was of steady work until the time of his injury, and thereafter until his dismissal by the defendant. 14 In the light of his Honour's findings, the simple way of assessing the plaintiff's past economic loss, and one regularly used in cases such as this, was to work from Exhibit B, making such adjustments in light of the evidence as the trial judge thought warranted. Similarly, in regard to future economic loss, the simple approach would have been to adopt a figure of weekly wage loss by reference to the information available in Exhibit B and make a calculation, again regularly used in cases such as this, of the present value of that loss on the assumption the plaintiff would have worked until age sixty-five and then reduce the resulting figure by an appropriate percentage for vicissitudes. 15 The reasons given by the trial judge for not following the usual course were based upon what he took to be the requirements of a number of decisions of this court to which he gave references. He acknowledged that this aspect of the case had not been argued before him. 16 In the plaintiff's written submissions in the appeal it was asserted that none of the cases referred to by the trial judge was relevant to the conclusion which in his view they required. No submission in opposition to this statement was made on behalf of the defendant. Strictly speaking, this made it unnecessary for this court to look at the cases referred to by the trial judge, but we thought we should look at them, and upon doing so found that the attitude of counsel was quite justified. The cases did not support the conclusion that the ordinary approach could not be followed. 17 This does not necessarily mean that the court should interfere with the figures arrived at by the trial judge for past and future economic loss. However, the method adopted by the trial judge led to his not giving any discernible reasons for the figures he arrived at, and those figures are significantly lower than those which emerge from use of the ordinary method. We see no reason why the ordinary method should not be used, nor with one exception, do we see any reason why the figures in the second and third columns of Exhibit B should not be used. 18 We take this approach on the basis that the most reliable indicator of the remaining capacity to work of this injured plaintiff, whom the evidence indicates was anxious to earn whatever he could, was what he actually earned when, subject to his injury, he was on the open labour market. 19 The exception is that we think a notional figure of wages for the 1998 year should be inserted. This was a year in which the plaintiff acted as house husband, looking after the house and child of his wife and himself. We think, in view of the overall evidence concerning the plaintiff and his limited ability to work, that it would have been possible for him to earn in the 1998 year an amount comparable to what he earned in the previous year, and that the decision to act as house husband involved a withdrawal from work which should not be counted against the defendant. 20 Using Exhibit B, on the figures as they stand, the total of the "Plaintiff's Wages" column is $17,780. For the reasons we have given, we think $5680 should be added to this total for 1998, making the total $23,460. The total of the "Comparable" column is $116,995. Our understanding is that the figures in this column were accepted at the trial as the actual earnings of a comparable employee. The difference between the totals is $81,835. 21 For the defendant it was submitted that we should approach the total of the "Plaintiff's Wages" column differently. At the date of trial the plaintiff for a short time had been working three days a week in a job for which he was being paid, at a rate of $18,200 a year. The defendant said that the plaintiff should be deemed to have been earning at that rate during the preceding years. For the reason already given, we think it is more realistic to take the actual figures, subject to the one adjustment we have already referred to. 22 In our opinion the appropriate figure for past economic loss is $81,835 23 As to future economic loss, the principal dispute between the parties was what figure should be taken as the weekly difference between what the plaintiff would have been earning uninjured and what he would be earning subject to his injury. For the plaintiff it was submitted that the figure should be of the order of $300. This was said to be an approximate average of the plaintiff's loss to date of trial as shown in Exhibit B. For the defendant it was said the figure should be $117, based on what he was actually earning at the date of trial. We think there is some substance in both contentions. From the defendant's point of view, at the date of trial the plaintiff was demonstrating that at least in some circumstances he could earn at the rate of $18,200 a year. From the plaintiff's point of view, the job he was doing was a casual one, available in rather special circumstances which he had only recently obtained and which had no assurance of permanence. Taking these considerations into account, and also bearing in mind Dr Bleasel's opinion of the plaintiff's very low future earning capacity, we think a weekly figure of $200 is reasonable. This takes into account the vicissitudes we think this plaintiff would have been likely to encounter, uninjured. 24 The resultant figure for future economic loss is $156,600. 25 We have not dealt with the questions of interest and superannuation. In regard to interest, the parties suggested that it should be left to them to agree on the amount once they knew our views concerning past and future economic loss. 26 In regard to superannuation, the court was referred to a table (Blue Appeal Book page 41) upon which the parties indicated the superannuation calculation should be based, once the court's view about the principal figures was known . The table however does not show a figure for the precise age of the plaintiff at the relevant time. We think it preferable to allow the parties to agree on this figure also, which should cause no difficulty, in view of their joint acceptance of the table. 27 We therefore direct the parties to bring in draft orders reflecting the figures as adjusted by this decision, and including amounts for interest and superannuation, at 9:30 AM on 8 November 2001. The draft orders should provide for the judgment below to be set aside, the judgment in its place to take effect from the date of Delaney DCJ's judgment and for the defendant to pay the plaintiff's costs of the appeal. If there is any dispute about the costs orders, both plaintiff and defendant should file written submissions before 6 November 2001, so that the court can make all necessary final orders on 8 November 2001. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.