PAREEZER v COCA-COLA AMATIL [2004] NSWSC 1083

New South Wales Supreme Court

CITATION : PAREEZER v COCA-COLA AMATIL [2004] NSWSC 1083 HEARING DATE(S) : 10 September 2004 JUDGMENT DATE : 16 November 2004

JUDGMENT OF : Hulme J at 1 DECISION : Orders deferred

CATCHWORDS : Economic Loss Craig Douglas Pareezer PARTIES : Suzanne Joy Pareezer Scott Craig Pareezer Coca-Cola Amatil (NSW) Pty Ltd FILE NUMBER(S) : SC 20018/00 Plaintiff: JE Rowe COUNSEL : Defendant: M Elkaim SC J Darvall Defendant: D Cochrane Heazlewoods Henry Davis York SOLICITORS : Hicksons Kevin O'Kane Thompson Cooper

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

Tuesday 16 November 2004 20018/2000 CRAIG DOUGLAS PAREEZER v COCA-COLA AMATIL (NSW) PTY LIMITED JUDGMENT 1 HULME J: In this matter I delivered reasons for judgment dealing with most of the issues which arose on 10 September last. At the time I ordered that the topic of economic loss be dealt with separately and indicated – I think I omitted to order - that I would deal with the hourly rate for care at the same time. 2 The Griffiths v Kerkemeyer claim advanced by the Plaintiff was based upon 2 reports from Ms Howarth of "Hands Home Assistance 'n Domestic Support", one of February 1999 and one of January 2003. In calculating the cost of the services contemplated by the first report, the Monday to Friday hourly rates varied between $20 (for domestic assistance) and $25 (for handyman services). The hourly rates in the second report varied from $26.13 for transport assistance to $27.50 for personal care apart from lawn mowing which was $38.50. Rates were higher for Saturdays, Sundays and Public Holidays. 3 The Defendant called no evidence on the topic of rates but contended for an hourly rate of $20 in its written submissions and in its calculation of damages. Authority makes it clear that that commercial rates are to be used – Van Gervan v Fenton (1992) 175 CLR 327 4 Notwithstanding that the rates advance by Ms Howarth were not contradicted by other evidence, I do not accept them as appropriate for use by me. As a tribunal of fact, I am entitled to rely on my general experience of the world. While I accept that if I, or the Plaintiff, were to arrange for the Hands, or presumably some similar, organisation to provide the care contemplated, their rates would be as given, the experience to which I have referred shows that regular or permanent assistance is available at substantially cheaper rates and that there are a substantial number of people who are happy to work for less than the rates Ms Howarth advances. To put the matter perhaps more correctly, even allowing for the absence of evidence and challenge from the Defendant, the Plaintiff has not persuaded me that such less expensive assistance is not available. Allowance must be made for the fact that assistance for one hour is likely to cost more than one quarter of the assistance for a greater number of consecutive hours. 5 Taking account of the matters referred to in the immediately preceding paragraph and averaging out the various rates, it seems to me that an appropriate allowance to make for services of all types is $20 per hour until the beginning of 2003 and $24 per hour thereafter. I am not persuaded the Plaintiff is entitled to more. 6 I turn to the claim for economic loss. I dealt with the Plaintiff's capacity for work principally in paragraphs 205 and 222 to 236 of my earlier reasons, concluding that "he is unlikely to ever obtain gainful employment albeit I propose to make some small or moderate allowance for the possibility". A principal question which remains is what the Plaintiff would, but for the event which befell him, have been likely to earn. 7 The Plaintiff's economic loss claim as originally advanced was contained in a report of Furzer Crestani Services (hereinafter referred to as "FCS") of 20 January 2000. The Defendant engaged a Mr Gower whose commentary on that FCS report became Exhibit 26. FCS then prepared a further report in the light of Mr Gower's comments, this further report becoming Exhibit AO. Some supplementary remarks of FCS became Exhibit AP. Essentially, but subject to some relatively minor criticism, the parties relied on these reports as defining their respective cases on the Plaintiff's economic loss. 8 FCS advanced three possible scenarios. The first assumed the Plaintiff would have continued to operate 2 trucks deriving income based upon the results achieved by him whilst operating the business in the 1997 financial year. The second assumed the Plaintiff would have increased the number of trucks operated by him to 5 trucks by 1 July 1999. The third assumed the Plaintiff could work as an employee truck driver earning average weekly earnings for truck drivers. The Defendant contended for the last of these, though submitting that there should be some lump sum upward adjustment to take account of the loss of opportunity to run his own business. 9 The Plaintiff was born on 10 September 1964. He completed his School Certificate in about 1979 but has no other academic or trade qualifications. He commenced work in 1980 as a general hand at Caravan County at Lansvale and progressed to supervisor there before it closed down. From about mid 1986 to about mid 1994 he worked for API as a truck driver and then as a trainer for new drivers. He left to obtain more remunerative employment, again as a truck driver until he could obtain a job operating his own truck. This he did with the Defendant in the latter part of 1994. As had been said, in about mid-1996 the Defendant provided the Plaintiff with another run which enabled the Plaintiff (or his company) to acquire a second truck, employing another driver. The Plaintiff said that he had an ambition to own his own transport company away from Coca Cola. 10 Mrs Pareezer said that the Plaintiff had talked of having maybe another 5 trucks. Coke was a starting point. 11 The Plaintiff has never been out of work and I am satisfied that, barring disaster, he would have continued to seek to expand the scope of his earning activities. Although he had no plans in place his goal was to "be my own transport company away from Coca Cola". To what extent he would have been successful in this is another question. I have no doubt that the Plaintiff was capable of carrying out the work he was doing, of managing the second run which he had at the time he was shot and of managing one, or possibly some, additional runs. However, I have serious reservations as to the Plaintiff's capacity to manage any larger or more complicated operation. In part those reservations arise from the fact that there was no evidence that the Plaintiff could manage such an operation. In more substantial measure they arise from the way in which the Defendant's demands that the Plaintiff operate by way of a company were dealt with and from the quality of the record keeping of the Plaintiff and of Pareezer Transport Pty Ltd. It seems to me that in the case of both of these aspects, there was a deal of inefficiency or failure to come to grips with issues albeit, in the case of the Defendant's demands for a corporate contractor, a difficult issue. 12 One must recognise that had the Plaintiff ceased working for the Defendant and commenced his own business, he may well have earned more than while working for the Defendant but also that he may well have earned less or even made a loss. Of course he may have been able to carry on with one or more drivers servicing the Defendant's needs while seeking to establish another operation. Clause 6.2 of the contract between the Plaintiff and the Defendant envisaged that the provision of services under that contract did not require the Plaintiff's personal attention. 13 There are of course other contingencies to be taken into account. The Defendant may have changed its method of operation so that servicing of all of the vending machines was carried out by its own employees. The Defendant may have ceased any involvement with such machines (though I think this most unlikely). The fact that the Plaintiff's operations were conducted, at least in part, via Pareezer Transport Pty Ltd and that any future business activities may have been conducted through this or another company adds a further element of uncertainty on the issue of how far the Plaintiff's incapacity for which the Defendant is responsible may have been productive of loss to him. Thus the benefits of any salary sacrifice by the Plaintiff may have gone, at least in part, to Mrs Pareezer as the half-owner of Pareezer Transport Pty Ltd or another operating company. 14 As it was, at the time of being shot the Plaintiff was drawing no salary from Pareezer Transport Pty Ltd and that company was receiving all of the Defendant's payments for the servicing the vending machines on the 2 runs which the Plaintiff looked after. On the other hand, he and his wife were making substantial drawings sourced from those payments. 15 It should be mentioned also that the Plaintiff agreed in evidence that servicing the vending machines involved a lot of physical lifting and bending and its physical requirements imposed limitations on how long he could carry it on. 16 I think the probability is that the Plaintiff (or Pareezer Transport Pty Ltd) would have, within say 2 to 4 years, "acquired" a third run in the Defendant's operations. Both the Plaintiff and Mr Ings gave evidence of other contractors having more than 2 trucks. Although Mr Ings gave evidence that he awarded the second run to the Plaintiff because he had been through a difficult time, there was no suggestion that the Plaintiff's performance as a contractor was in any way below par. There is a possibility the Plaintiff would have acquired a fourth although one must recognise also the possibility that before the Plaintiff undertook any more, the Defendant may have been more insistent in respect of having the formalities so far as Pareezer Transport Pty Ltd is concerned effected. 17 Be that as it may, it seems to me that in light of the uncertainties, to some of which I have referred, that an appropriate way of valuing the Plaintiff's lost economic capacity is to proceed on the basis of only the 2 runs for which he was responsible or enjoyed at the time he was shot but to assume he would have continued to enjoy these until the end of a working life at age 65. I make it clear that I adopt this approach not upon the basis of a conclusion that, on the probabilities, such a course would have eventuated but as a best estimate after allowing for the wide range of possibilities. 18 In the case of calculations for the future, the usual 15% should be deducted for contingences and I would reduce the result by a further 5% on account of what I see as a minimal, or the chance of a, residual earning capacity. 19 Thus I regard the first scenario adopted by FCS as providing a reasonable basis for assessing the Plaintiff's economic loss. I am comforted in that decision by paragraph 27 of Exhibit 26. 20 To deduce the income that would have been received to 30 June 1997, FCS extrapolated that actually received for the part of the financial year actually worked (with some adjustments). In paragraph 24 of his report Mr Gower suggested that this was inappropriate on the basis that the soft drink industry was to some extent seasonal. I suspect he is right in thinking – at least generally – that more drinks are consumed during summer than winter. However, a number of the machines serviced by the Plaintiff seem to have been at TAFE colleges and at railway stations where custom is likely to be reduced during the holiday part of the summer months. Accordingly, I regard the FCS approach as a reasonable one. 21 In exhibit AP, FCS record that Ex AO reflects an acceptance of Mr Gower's remarks in paragraph 25. His remarks in paragraph 26 are sufficiently answered in Exhibit AP. 22 Apart from matters to which I have referred, there were, I think, no other criticisms of the FCS calculations so far as the first scenario is concerned. Accordingly, subject to the 15% and 5% discounts mentioned above, I would value the economic loss component of the Plaintiff's damages in accordance with that part of the FCS report. That remark is subject to the qualification that there probably should be adjustments made to take account of the fact that the calculations both for past and future losses were made as at 1 September 2003 and it is now November 2004. 23 Mrs Pareezer made a claim for economic loss based on an incapacity to continue working every second Saturday at a net fortnightly income of $88. She returned to casual employment on or about 4 January 2001. The claim was quantified at $8,888. The Defendant accepted that there should be some "small amount" of damages allowed for economic loss. 24 In my earlier reasons I observed that:- "Asked how long it was that her injury prevented her from working, Mrs Pareezer said 2 to 3 years although in those answers she seems to have been influenced by the need to look after the plaintiff." 25 Albeit in the claim by Mr Pareezer, I have allowed damages on account of the services which were provided to him. At least in the circumstances of this case, it would not be appropriate to award damages to Mrs Pareezer flowing from the consequent absence of outside employment because of the need to provide those services. Furthermore, there is no evidence which persuades me that the inability to earn which Mrs Pareezer suffered in consequence of her own injury lasted as long as 2 years. On the other hand, I have no doubt that it lasted for some significant time, she being no doubt reminded each day of what had occurred. It seems to me that an appropriate estimate of Mrs Pareezer's incapacity flowing from her own injury is 18 months. Accordingly, I would allow $3,432 ($44 x 78) on this account. Interest on this sum, from the mid-point of the 18 month period, should be added. 26