Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Parker v Wish Designs Pty Ltd [2014] NSWCA 401 Hearing dates: 5/09/2014 Decision date: 24 November 2014 Before: Emmett JA at [1]; Tobias AJA at [54] Decision: Appeal be dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DAMAGES - measure of damages in actions for tort - appellant suffered injury during the course of his employment and incurred a loss in working capacity - whether the trial judge erred in fixing the appellant's damages for past economic loss by reference to the mathematical difference between his earnings before and after his injury - whether the trial judge had proper regard to the appellant's loss of economic capacity or made a finding to that effect - whether the approach of the trial judge was consistent with the manner in which the appellant's claim was advanced - whether the trial judge made the findings necessary to support the appellant's case on appeal Legislation Cited: District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), ss 46A, 75A Uniform Civil Procedure Rules 2005 (NSW), rr 15.12 - 15.14 Cases Cited: Morvatjou v Moradkhani [2013] NSWCA 157 Category: Principal judgment Parties: Bradley Parker (Appellant) Wish Designs Pty Ltd (Respondent) Representation: Counsel: R Sheldon SC with I Ryan (Appellant) J Hatzistergos with S Lees (Respondent) Solicitors: Brydens Law Office (Appellant) Stephen Lee Legal (Respondent) File Number(s): 2013/374172 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-11-14 00:00:00 Before: Williams DCJ File Number(s): 2013/20076 Judgment 1EMMETT JA: The appellant, Mr Bradley Parker, has appealed from an assessment of damages for injuries sustained by him in the course of his employment by the respondent, Wish Designs Pty Ltd (Wish Designs). Mr Parker says that the damages awarded to him in the District Court are inadequate and that the reasons given for the assessment by the trial judge were affected by an error of principle. He also complains that the assessment of damages failed to accord with findings made by his Honour relevant to the error of principle. Pursuant to s 46A of the Supreme Court Act 1970 (NSW), the Court was constituted by two judges as the appeal relates solely to the amount of damages awarded. Factual Background 2Mr Parker worked as a cutter in the fashion industry for more than 20 years before he began employment with Wish Designs. On 30 November 2006, Mr Parker experienced symptoms at work that subsequently led to medical attention in early 2007. Mr Parker made no allegation of a specific incident that gave rise to an injury. Rather, his case was that the nature, conditions, obligations and incidents of his employment imposed strains on his body during the period of his employment by Wish Designs. 3Mr Parker ultimately ceased working for Wish Designs in March 2008 and immediately began work as a freelance contractor for two entities known as Gabriel Cutting Services and Excess Grades. He worked for five years until March 2013 and then worked for J&M Fashions as a cutter. 4In his statement of claim, Mr Parker alleged that his employment required him to lift and handle large and heavy bolts of fabric, to take the bolts from street level to cutting room level and then to lift and handle the bolts into racks and onto cutting tables. During the time of his employment, he was required to perform those duties on a continuous or repetitive basis from August 2004 until 30 November 2006. During that time, he was also required to lean over a large cutting table and to use heavy cutting shears in performing his work. In addition, he was required to work on a machine known as "the fusion machine", which necessitated his bending over for lengthy periods of time. 5Mr Parker said that, as a result of performing those duties, he developed an injury and disability. He said that Wish Designs owed a duty of care to him and in the circumstances was in breach of that duty and therefore negligent. 6Mr Parker suffered disc ruptures to his cervical spine and a brachial plexus injury. He said that those injuries resulted in pain and restricted movement to his neck, pain radiating from his neck into his upper back and shoulder regions, pain and restricted movement to his right arm, altered sensation to his arm and hand, and persistent headaches. The District Court Proceedings Pleadings and submissions 7In a statement of particulars filed on 22 January 2013 (the Original Particulars), Mr Parker furnished particulars of his claimed economic loss. The Original Particulars said that, at the time of his accident, he had been employed by Wish Designs as a fabric cutter since August 2004. The Original Particulars then said that, as a result of his injuries, he had had various periods away from work and had worked on restricted hours and duties. A claim was made in respect of his absences from work "at his pre-accident rate of pay, as varied and in line with comparable employees from the date of his accident ... and continuing". The Original Particulars said that he was presently employed by Gabriel Cutting Services and Excess Grades as a cutter and that he worked for those organisations on a contractual basis and had his own Australian Business Number. 8The Original Particulars made a claim at half average weekly earnings rates until retirement age at 67 years, as well as a claim for past and future loss of superannuation entitlements. No further particulars were given. 9An amended statement of particulars (the Amended Particulars) was filed on 4 November 2013, a week before the trial. The Amended Particulars alleged that, as a result of his injuries, Mr Parker has had various periods away from work and he has worked on restricted hours and duties. The Amended Particulars claimed in respect of his absences from work at his pre-accident rate of pay, as varied and in line with comparable employees from 30 November 2006 and continuing. The Amended Particulars said that from 30 August 2007, Mr Parker was certified fit for normal hours, with lifting restrictions. The Amended Particulars asserted that Mr Parker resigned from his employment with Wish Designs on 9 April 2008 as he was unable to continue performing the duties required of him. 10The Amended Particulars claimed damages for economic loss as follows: 8 weeks from 15 January 2007 to 10 March 2007 at $802.85 net per week: $6,422.80 20 weeks from 12 March 2007 to 30 July 2007, restricted to working 4 hours per day for 3 days per week, at $561.99 per week: $11,239.76 4 weeks from 30 July 2007 to 30 August 2007, restricted to 6 hours per day for 4 days per week, at $321.14 per week: $1,284.55 TOTAL: $18,947.11 Loss of superannuation to 30 August 2007: $2,084.18 11The Amended Particulars also claimed loss of future earnings and earning capacity at half average weekly earnings rates until retirement at age 67. The Amended Particulars said that from 14 April 2008, Mr Parker had commenced his own business and managed to earn amounts similar to his pre-injury earnings as he is able to work at his own pace and within his ability. The Amended Particulars claimed a diminution of his earning capacity on the open labour market due to the effect of his injuries as follows: $400 per week for 602.8 weeks: $241,120.00 Reduced for vicissitudes by 15 percent: $204,952.00 Future loss of superannuation: $28,693.28 Wish Designs contends, before this Court, that that claim for loss of superannuation (just as in the Original Particulars) could only be consistent with Mr Parker's continuing to work as an employee, as opposed to working as an independent contractor. 12In the course of opening to the trial judge, senior counsel for Mr Parker said that, before 30 November 2006, Mr Parker was in good physical shape but, on that date and afterwards, he was not. Senior counsel said that his work with Wish Designs had dried up, perhaps mainly due to Wish Designs' business and that Mr Parker had then moved into subcontracting work, even though he was really unable to perform the full duties of his job. Senior counsel then said that Mr Parker had not filed any tax returns since 2007, but that what he had earned was capable of being established from his invoices. Senior counsel said that it was apparent that Mr Parker's earnings had substantially dropped, except in one financial year, since he had been unable to perform full work satisfactorily. 13The trial judge then embarked on the hearing of a motion by Mr Parker for an extension of time to commence the proceedings. That application was argued by junior counsel for Mr Parker. In response, counsel for Wish Designs complained about the absence of tax returns. Counsel for Wish Designs also said that there were "some issues in relation to workplace assessment" by which he said he meant an assessment of Mr Parker's ability to work and what jobs might reasonably be available in his skill capacity. 14Counsel for Wish Designs then raised the question of invoices that had been provided on behalf of Mr Parker, which he said appeared to be invoices given to people with whom Mr Parker contracted to perform work. He said that Wish Designs did not know whether that was the only income that Mr Parker had during the relevant period. 15Counsel then referred to the Amended Particulars and the allegation that, on 14 April 2008, Mr Parker had commenced his own business and had managed to earn amounts similar to the pre-injury earnings that he was able to earn, "at his own pace and within his own ability". Counsel said that he was puzzled by that because senior counsel for Mr Parker, in his opening, indicated that, after his employment with Wish Designs, when he was a contractor working in his own business, he was earning amounts that "started off high and then diminished during that period". Counsel for Wish Designs said that it did not seem, on the face of that, that there was a claim made for the period of employment since Mr Parker left work with Wish Designs. Counsel complained that Wish Designs had not been furnished with particulars of losses during that period. 16The trial judge then observed that there was no claim for diminution of earning capacity for the past, that is from August 2007 to the date of trial, but that there was a claim for the future of $400 per week. Counsel for Wish Designs said that there was a claim for the future, but that there did not seem to be a claim from 14 April 2008 to the date of trial. He said that he was unsure as to the way in which Mr Parker was advancing his case, but that, on the Amended Particulars, there did not appear to be a claim being advanced in relation to the period when he had been working as a contractor. The trial judge said that he would read the Amended Particulars as meaning that, although Mr Parker was not currently losing any money, he was likely to do so in the future, and the best figure that his representatives could put on that was $400 per week. Counsel for Wish Designs said that that was how he understood it, but that that was not consistent with the way in which senior counsel for Mr Parker had opened the case, having said that Mr Parker's income started high and then diminished over time. 17Senior counsel for Mr Parker then resumed the conduct of the case. The following exchange then occurred (emphasis added): LIDDEN: There is only one matter that has arisen ... and that's about this [Amended Particulars] which was amended about a week ago and which, on one view of it, abandons for some reason without the plaintiff's instruction I would have thought, his claim which remains in the document a bit earlier on and was in the [Original Particulars] and on which I opened, which is that working as a subcontractor that at times he has earned less than he would have earned in direct employment with the defendant or anyone else providing similar work as a paid cutter. I am not abandoning that aspect of his claim and I will not be relying on the [Amended Particulars] to that extent. In fact, I won't be relying on it at all. Now, I presume that the defendant prepared the case so as to meet a claim for the difference. The plaintiff's invoices were provided to the defendant in December of last year, I believe, and I intend to proceed with the case on that basis. HIS HONOUR: Do you abandon the [Amended Particulars] and all the underlying and just rely on the generally unspecified claim in the [Original Particulars]? LIDDEN: Yes, I do. I have said what it is: it is the difference between what he should have earned as a paid cutter and what he has actually managed to earn as a subcontractor. HIS HONOUR: What about the future? LIDDEN: For the future it's a general diminution of his earning capacity claim, as is pleaded. Your Honour will see that his income has varied from year to year depending, to some extent, on what work is available and to a large extent on what he is able to do. The insertion, by way of an argument in the [Amended Particulars], [is] a qualification of that diminution. It's no more than an argument. I just simply wish to say that he has got a diminution of his earning capacity and your Honour will sort it out in the traditional way. HIS HONOUR: All right. Are you content with that, Mr Hatzistergos? HATZISTERGOS: I am, subject to, at some point, if the plaintiff can actually provide some flesh to the particulars in the first paragraph of the statement of [particulars]. Wish Designs places reliance on the words emphasised as illustrating an inconsistency between the approach that Mr Parker asked the trial judge to apply to the assessment of past economic loss, on the one hand, and the approach that is now sought to be applied on appeal, on the other hand (see below at [46]). 18At the end of the trial, senior counsel for Mr Parker provided written submissions to the trial judge. The written submissions included a claim for past loss of superannuation and said that, if Mr Parker had been uninjured, he would have remained in paid employment and would have received superannuation amounting to $11,000. Wish Designs contends in the appeal that, just as in the Original Particulars and the Amended Particulars, such a claim for superannuation payments is consistent only with continuing employment and not with working as an independent contractor. 19In dealing with past wage loss, Mr Parker's submissions to the trial judge said that, at the time of the accident, Mr Parker was earning $61,496 gross per annum with a net amount of $45,805 per annum, or $880 per week. The submissions said that, as a result of changes in tax rates, Mr Parker would now have been receiving $940 per week without anything further. However, the submissions said, the average weekly earnings had increased from $1,204 gross per week to $1,550 gross per week, or by about 25 percent. Accordingly, it was said, if one were to increase Mr Parker's 2006 gross earnings of $61,496 by 25 percent to $76,870 per annum, he ought now be receiving $1,478 gross per week, or $1,130 net per week. The submissions said that an average of those figures would be $1,005 net per week and therefore proposed a figure of $1,000 net per week over the whole period, that is, from the date of onset of Mr Parker's disabilities to the date at which he left employment of Wish Designs. 20The submissions then said that, up to the time when Mr Parker left the employment of Wish Designs in 2008, his wage loss should be confined to the weekly payments. From 18 April 2008 to the date of the trial, being a period of 5.5 years, Mr Parker had been a self-employed subcontractor. The submissions said that, uninjured, Mr Parker ought to have earned $1,000 per week for the period of 52 weeks for 5.5 years, namely, $286,000 net. That calculation appears to proceed on the assumption that, but for his injury, Mr Parker would have continued as an employee, since it uses the income figure derived from his full-time employment by Wish Designs. 21However, the submissions said, Mr Parker's invoice books disclosed that, up to 22 August 2013, he had in fact earned $226,032. In the ten weeks between then and the date of trial, he should be assumed to have been working 2.5 days per week at $28 per hour, or $560 gross per week, being $5,600 for the period. Accordingly, the submissions said, the total gross earnings are therefore $226,032 plus $5,600 being $231,632. For the 5.5 years, or 286 weeks, that would give $809 gross per week. After taking 10 percent off for expenses such as tools, clothing and travel, the amount would be $720 gross or $650 net. Accordingly, the submissions claimed, the loss over the period was $350 per week for 5.5 years, totalling $100,100. 22Finally, in relation to future wage loss, Mr Parker's submissions said that, over the previous five years, Mr Parker had been able to earn, on average, about $650 net per week. He ought to be earning $1,130 net per week and was therefore losing about $500 net per week. Since he was then aged 50 years, and his working life expectancy was a further 17 years, the claim was for $500 per week for 602.8 weeks, less 15 per cent for vicissitudes, giving $256,190. 23The written submissions provided to the trial judge on behalf of Wish Designs did not address those calculations in terms. Wish Designs' submissions asserted that the requirements of rr 15.2-15.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (presumably intended as a reference to rr 15.12-15.14) had not been complied with in relation to the provision of particulars and that Wish Designs did not necessarily accept the records or accounts submitted by Mr Parker as being fully reflective of his earnings or capacity. Wish Designs' submissions asserted that it was clear that Mr Parker had contract work other than with Gabriel Cutting Services and Excess Grades after he left Wish Designs. Some of that was performed on Saturdays because, on the evidence of Mr Parker himself, he was busy with other work during the week. The submissions said that, if Mr Parker was experiencing difficulties, there was no explanation as to why he sought no treatment for his injury. The submissions concluded that only a modest allowance should be made for past economic loss to 1 September 2007 and that the Court could not be satisfied of any claim for the future. Reasons of the trial judge 24While liability was initially disputed during the course of the hearing, Wish Designs admitted that it had breached the duty of care it owed to Mr Parker. Accordingly, the matter became one for the assessment of damages only. The trial judge observed that damages were limited to past and future loss of economic capacity, as indicated above. 25Mr Parker's treating doctor, Dr Morgan, certified on 25 January 2007 that he was unfit until 9 February 2007. Subsequently, on 10 March 2007, Dr Morgan certified that he was fit for suitable duties from 12 March 2007 on the basis of four hours per day, three days per week. That restriction continued to the end of July 2007 when Dr Morgan said he was capable of working six hours per day for four days per week, with lifting no more than 10-15 kilograms. On 1 September 2007, Dr Morgan suggested that Mr Parker was fit for full-time duties, but with lifting restricted to 10-15 kilograms. Dr Morgan gave a similar certificate on 29 September 2007. The trial judge found that the view of Mr Parker's treating doctor was that, although he was fit for full-time duties, there was a restriction on heavy lifting. 26The trial judge referred to an assessment by Dr Max Ellis, a specialist who reported to Mr Parker's solicitors, that Mr Parker had a 17 percent whole person impairment, which his Honour considered was consistent with Dr Morgan's assessment. On review in July 2010, Dr Ellis expressed the view that Mr Parker was then permanently unfit for physically demanding work and that his working life expectancy as a textile cutter was significantly impaired and would be significantly shortened. 27Next, the trial judge referred to the evidence of Dr Peter Giblin, who assessed Mr Parker in August 2013 as being permanently unfit to use his right arm for prolonged and uninterrupted periods of heavy repetitious pushing, pulling, lifting and twisting, load-bearing or operating heavy vibrating machinery or holding his neck in a fixed position. Curiously, his Honour qualified the reference to that assessment by saying that "on no view on [Mr Parker's] evidence did his work ever involve that type of activity". That appears to refer to unfitness for Mr Parker to hold his neck in a fixed position and not to the reference to unfitness for the other matters referred to by Dr Giblin. 28Next, the trial judge referred to a May 2007 report from Dr Sam Perla, an occupational health physician. Dr Perla expressed the opinion that Mr Parker was fit for suitable duties, with the restriction that there be no lifting, pulling or pushing more than 1-2 kilograms and that he should avoid work above shoulder height, avoid fixed postures of his neck, but that he could "upgrade" his working hours. 29The trial judge accepted that no treating doctor had certified that Mr Parker was fit to resume normal duties following the injury that Wish Designs conceded occurred in the course of its employment of Mr Parker. However, his Honour said, that did not mean that Mr Parker was entitled to the benefit of a finding of continuing partial incapacity, particularly in the light of his evidence as to various other periods of work that may, themselves, have caused further aggravation of any underlying degenerative change. His Honour considered that a certification by Dr Morgan, Mr Parker's treating doctor, as to a moderate restriction in 2007 could not have an indefinitely continuing effect in isolation from a consideration of subsequent evidence as to Mr Parker's activities. 30The trial judge was not able to come to any concrete view as to the extent of any loss that may have been suffered by Mr Parker. However, that did not preclude his Honour from venturing an assessment, on the basis that he was required to do the best that he could, on the available evidence. His Honour interpreted that evidence as suggesting that Mr Parker was earning the following net weekly amounts at various periods between the date of injury and the date of the trial: Period Earnings 1 July 2005 - 30 June 2006 $880 1 July 2006 - 30 June 2007 $802 1 July 2007 - 17 April 2008 [no evidence as to earnings] 18 April 2008 - 30 June 2008 $1124 1 July 2008 - 30 June 2009 $1039 1 July 2009 - 30 June 2010 $843 1 July 2010 - 30 June 2011 $650 1 July 2011 - 30 June 2012 $710 1 July 2012 - 30 June 2013 $710 1 July 2013 - 22 August 2013 $695 31The trial judge found that "the raw figures" showed that Mr Parker was simply not losing any earnings until at least mid-2009, when his net weekly earnings for the ensuing year were $843. His Honour said that Mr Parker's case was based on the proposition that the agreed net earnings of $802 per week by June 2007 would have increased up to the date of the judgment by about 25 percent, in line with average weekly earnings, and therefore his notional earnings by July 2009 would have been slightly in excess of $843 per week. His Honour assessed Mr Parker's diminution of earning capacity at $100 per week on average over the period from July 2009 and continuing. 32In dealing with the reason why Mr Parker decided to leave his employment with Wish Designs in 2008, the trial judge observed that, by that time, Wish Designs was sending a lot of work offshore to China, so there was not as much work available. His Honour nonetheless "accepted" that Mr Parker would have remained as an employee, rather than becoming a contractor, because at least part of the reason that he gave for changing his status was that he was not able to continue full-time work with Wish Designs because of the disability that arose from his injury in the course of his employment. His Honour considered that that conclusion was supported by the fact that Mr Parker said that, while he has been working in similar positions, he has avoided the heaviest types of lifting. 33The trial judge concluded that Mr Parker was entitled to full loss of earnings for the closed period of eight weeks from 15 January to 10 March 2007. That amounted to $6,416, being eight weeks at $802 per week. His Honour also concluded that Mr Parker had not demonstrated a loss of earnings "compared to the notional earnings increased roughly in accordance with average weekly earnings" until 1 July 2009. His Honour therefore allowed $100 per week for 3.25 years from that time, amounting to $16,900. 34In relation to future loss, the trial judge allowed $100 per week for 17 years, from present age 50 to a retirement age of 67, a total of 602 weeks. His Honour then reduced that amount by 15 percent for vicissitudes, giving an amount of $51,170. His Honour also allowed superannuation at 11 percent on the past and future figures, being $2,564 and $5,628. His Honour added compensation payments of $1,283, giving a total of $83,961, and then deducted the sum of $6,400 for the total compensation already paid, giving a final verdict of $77,561. There was a verdict and judgment for that amount on 14 November 2013. The Appeal 35Mr Parker filed a notice of appeal on 13 February 2014, having filed and served a notice of intention to appeal on 12 December 2013. The appeal is brought under s 127 of the District Court Act 1973 (NSW) and s 75A of the Supreme Court Act 1970 (NSW). 36Mr Parker's grounds of appeal assert that the trial judge erred in fixing Mr Parker's damages for past economic loss by reference to the mathematical difference between his earnings before and after his injury, and should have awarded damages for past economic loss by reference to Mr Parker's loss of economic capacity. He also asserts that his Honour erred in failing to have regard to the extent to which Mr Parker's economic capacity was, and would be, productive of loss. It was also originally asserted that the trial judge erred in awarding damages for future economic loss insofar as his Honour failed to give effect to medical evidence to the effect that Mr Parker's working life would be shortened by reason of his injuries and disabilities. That assertion was not pressed. 37Damages for past and future economic loss are allowed to an injured employee because the diminution of his earning capacity is, or may be, productive of financial loss. An injured employee's economic loss is conveniently assessed by reference to the actual loss of wages that occurs up to the time of trial, which can be more or less precisely ascertained, and then, having regard to the injured worker's proved condition at the time of trial, by attempting some assessment of his future loss. The issue does not turn on a comparison between what money the injured worker would have earned but for the injury and what money he will earn after the injury. The compensable loss is not a loss of income, but the loss of the capacity to earn an income in a manner productive of financial loss. The income earned before the injury is thus relevant, but only as an evidentiary aid in assessing damages for the loss of the capacity to earn an income. Further, there is no distinction in principle between the calculation of past and future lost earning capacity (Morvatjou v Moradkhani [2013] NSWCA 157 at [50]-[53] and [56]). 38Mr Parker's written submissions assert that the error by the trial judge appears from the following propositions in his Honour's reasons: * Mr Parker needed to show both a reduction in economic capacity and that such diminution had been productive of financial loss; * That principle could not be satisfied in the present case because Mr Parker had earned significantly more in a two-year period after he left the employment of Wish Designs than he had earned with Wish Designs; * His Honour posed the question as to whether any found diminution in earning capacity was productive of financial loss, involving a comparison of Mr Parker's work activities and regime; * His Honour found that the "raw figures" showed that until mid-2009, Mr Parker was "simply not losing any earnings"; * The trial judge said that there was "no demonstration of loss of earnings compared to notional earnings, increased roughly in accordance with average weekly earnings until 1 July 2009". 39Mr Parker contends that the trial judge misdirected himself when considering whether the incapacity that his Honour found had been productive of financial loss. Mr Parker says that the basis of his claim was that, but for his injury, he would have been able to do more work and, thereby, to have earned more than he did. The fact that he earned more as a contractor than he had been earning while employed at Wish Designs did not dispose of his claim for economic loss because the claim was one for loss of economic capacity. He complains that the trial judge assumed that the absence of the difference between pre- and post-injury earnings precluded an award of damages on account of lost economic capacity during any period when that was the position. 40Mr Parker relied on the acceptance by the trial judge of a number of propositions that, Mr Parker said, were consistent only with the incapacity found by his Honour having produced financial loss. He says that the trial judge accepted that he feared the loss offshore of his job with Wish Designs; that he was finding it difficult to work five days per week; and that he worked three or four, and only sometimes five, days per week, because he could not do any more work than that. Thus, Mr Parker contends, his Honour accepted that the position was that he found it hard to work five days per week and reduced his hours to four days per week on average. He said that that was because of his disability and that his Honour accepted his statement that the limitation in the amount of time that he worked was due to his physical restriction, and not due to the unavailability of work. 41Mr Parker contends that, on the findings made by the trial judge, he was losing between one and two days from work from the time of his leaving the employment of Wish Designs. He says that, had he been uninjured, he would have been able to work five days per week, rather than three or four days per week. Accordingly, his earnings reflected only about 60 to 80 percent of his uninjured capacity to earn. He says that, but for the injury, he would have worked five days per week, every week, and would therefore have earned more than he did. That, he says, was a financial loss and it resulted from his incapacity. 42Mr Parker says that the significance of his fear of his job being lost offshore was that it was not related to his injury and arose in any event. Thus, he says, it was more probable than not that he would have left his employment with Wish Designs, even if he had not been injured. He says that, had he done so, he would have been in a position to work five days per week and derive a higher income over a full working week. He says that, given his concerns about his job going offshore, he would have obtained that alternative employment in any event and would have worked five days per week. 43In the course of the hearing of the appeal, senior counsel for Mr Parker provided amended particulars of his claim for economic loss. For the period from 1 July 2005 to 30 June 2007, Mr Parker claims $6,416. He says that from 18 April 2008 to 14 November 2013, he is entitled to damages calculated at the rate of 20 percent of the weekly earnings that he would have derived from working five days per week. That is on the basis that he was only able to work over four working days per week on average during that period. He claims a total of $63,927, together with loss of superannuation at 11 percent of $7,032. The weekly loss varies from $162 to $281. 44In relation to future loss, subsequent to the date of trial, Mr Parker claims 602.8 weeks, from age 50 to age 67, at $200 per week, giving $120,560. He allows 15 percent of that figure for vicissitudes, giving a total of $102,425. He then adds $11,266 for superannuation at 11 percent. He therefore particularises his claim as $184,650, being the aggregate of the following: $ 63,927 $ 7,032 $ 102,425 $ 11,266 $ 184,650 45Some of those particulars were only contained in a schedule of earnings that was provided to the Court after the hearing Wish Designs therefore had no opportunity of addressing them in the course of the appeal. However, counsel for Wish Designs appears not to have taken any issue with the figures contained in the schedule that was handed up during the hearing of the appeal and has not subsequently taken issue with the figures in the second schedule. Wish Designs' response is that the claim as now formulated on behalf of Mr Parker is not consistent with the way in which the case was particularised at first instance, opened before the trial judge and addressed in final submissions before his Honour. 46Wish Designs says that the analysis summarised above is contrary to the case put by Mr Parker to the trial judge, particularised as indicated above. In particular, it is inconsistent with the claims for loss of superannuation referred to at [11] and [18] and the method of calculation of lost earnings referred to at [19], as further refined by Mr Parker's counsel in the course of argument, as referred to at [17]. Specifically, senior counsel for Mr Parker explicitly said that his claim was for the difference between what he should have earned, as a paid cutter, and what he has actually managed to earn as a subcontractor. Assuming that the phrase "paid cutter" was intended to refer to an employed cutter as opposed to a contracted cutter, that submission before the trial judge is said by Wish Designs to be inconsistent with Mr Parker's submission in this Court about the method by which the award for past economic loss should be calculated. That is to say, the "difference" to which senior counsel for Mr Parker was referring was the difference between what Mr Parker would have earned had he continued his full-time employment with Wish Designs, on the one hand, and what he in fact earned while working less than full time as a contractor, on the other hand. Wish Designs says that the proposition that it was more probable than not that Mr Parker would have left his employment, even if he had not been injured, and would have been in a position to work five days per week and derive a higher income over a full working week, was not advanced before the trial judge or in Mr Parker's evidence. 47In fact, the trial judge specifically found that, but for his injury, Mr Parker would have remained as an employee (presumably of Wish Designs), rather than becoming a subcontractor. His Honour said that Mr Parker was not able continue full-time work with Wish Designs because of the disability arising from his injury. His Honour also found further support for that conclusion in Mr Parker's evidence that, while he worked in similar positions, he avoided the heaviest type of lifting. 48Counsel for Mr Parker described that finding by the trial judge as central to the appeal, in so far as it is said to betray his Honour's approach as not looking at Mr Parker's loss of economic capacity. Although his Honour described the finding as "acceptance" that Mr Parker would have remained as an employee instead of becoming a contractor, the evidence of Mr Parker, both in chief and in cross-examination, suggested that he would have left his employment with Wish Designs whether or not he suffered the injury that he in fact suffered. That was out of a concern for job security, having regard to the fact that Wish Designs was sending an increasing amount of work overseas. 49In examination in chief, the following exchange occurred: Q. Going into 2008 what was happening at work? A. They were taking a lot of work offshore so we weren't doing as much. [...] Q. In March 2008 you stopped working for [Wish Designs]? A. Yes. Q. How did that come about? A. I sort of saw the writing on the wall for the lack of work there and there was an opportunity to work for Mr Gabriel, the cutting service. Later, in cross-examination, the following exchange occurred: Q, The reality was that at that time that you decided to leave you were concerned about your job security? A. Yes. Q. The cutting room had less work? A. Yes. [...] Q. But there's no suggestion you couldn't have coped with the duties that you were doing at Wish Designs at the time that you left, is there? A. I don't think I could have done it continuously. [...] Q. In any event, a lot of the work was going to go off to China. Is that correct? A. I'm not sure how much. At that stage I didn't know how much was going. He did tell us that the structure of the company was changing and that there would be less. Wish Designs accepts that there were some questions about job security at the time that Mr Parker left his employment, but says that the ultimate factual finding by the trial judge was that Mr Parker would have remained an employee of Wish Designs had his injury not occurred. That finding of fact was not challenged in the notice of appeal. 50Wish Designs also relies on the findings made by the trial judge as to the intervening effect of aggravation caused by Mr Parker's subsequent contracting work. His Honour found that Mr Parker's moderate restriction in 2007 did not mean that he could have an indefinitely continuing effect in isolation from a consideration of subsequent evidence as to his activities. That finding, Wish Designs says, is consistent with the course of treatment that Mr Parker has undertaken. Thus, his Honour found that Mr Parker saw Dr Morgan in April 2008 just after leaving his employment with Wish Designs and complained of neck pain. His next consultation was not until January 2012. During that period of almost four years, Mr Parker saw no other doctor in relation to the injuries that he suffered in the course of his employment. After some confusion, it emerged that, in early January 2012, Mr Parker had fallen over while intoxicated in the bathroom and required some medical attention for a head injury. 51Wish Designs relies on three matters as further undermining Mr Parker's claim as follows: * His failure to file tax returns required the trial judge to exercise extreme caution in the way that Mr Parker's evidence was approached; * Mr Parker did not produce an invoice book in relation to work that he undertook after August 2013; * The evidence showed Mr Parker working four to five days per week on many weeks in 2013. Wish Designs contends that the findings made by his Honour relating to the effect of the work after his employment with Wish Designs are unchallenged. Conclusion 52Wish Designs submitted to the trial judge that there should be no damages for future loss of capacity to earn. There is no cross-appeal and no notice of contention raising that matter. The trial judge arrived at a figure of $100 per week as the extent of the diminution in his earning capacity. His Honour gave no explanation for that figure and it is not apparent from his Honour's reasons how he arrived at that figure. Absence of reasons, however, is not a ground of appeal. Rather, Mr Parker contends that his Honour erred in failing to have regard to Mr Parker's loss of capacity to earn as an independent contractor. 53The particulars now formulated on behalf of Mr Parker appear to indicate that, on the basis of the finding made by the trial judge, Mr Parker's capacity to earn was diminished to the extent of something like one day per week or 20 percent. I do not consider that it is open to Mr Parker to claim damages on that basis. The narrative set out above of the contentions advanced before the trial judge indicates that Mr Parker was claiming damages on the basis that he would have continued to be an employee and not that he would have left his employment and become an independent contractor whether or not he had suffered the strains that gave rise to his disability. The approach adopted by the trial judge followed the basis of the claim advanced on behalf of Mr Parker. It is not now open to Mr Parker to invite this Court to assess damages on a different basis. The appeal should be dismissed. 54TOBIAS AJA: I have had the benefit of reading in draft the judgment of Emmett JA in which his Honour sets out in appropriate detail the manner in which the appellant advanced his case before the primary judge, the latter's reasons and the submissions now made on the appellant's behalf as to how his Honour ought to have calculated the appellant's past and future economic loss. I gratefully adopt what his Honour has said on these matters. 55The appellant's written submissions at trial are summarised by Emmett JA at [19]-[21] of his reasons. Those submissions were consistent with the statement of the appellant's senior counsel at trial and emphasised by Emmett JA at [17] of his reasons. The primary judge rejected the appellant's case based on those submissions and, as far as can be detected, no alternative approach to the assessment of the appellant's economic loss was advanced. No challenge is made on the appeal with respect to that rejection. 56The primary judge nevertheless accepted that the appellant was not fit to resume normal duties with the respondent following his injury without lifting restrictions being imposed upon him by his treating medical practitioner. He further accepted that but for his injury he would have remained in his employment with the respondent but that he did not do so as he was not able to continue full-time, unrestricted work with that employer. It is thus clear that his Honour ultimately accepted that the appellant had sustained an injury which resulted in a permanent partial loss of earning capacity due to the necessity for him to avoid heavy lifting. 57On the appeal the appellant submitted that that incapacity was equivalent to one day's work and his written submissions reflected a redetermination of the appellant's damages on that basis. A schedule of earnings provided to the Court by the appellant and which is reproduced by Emmett JA at [30] of his reasons asserted that the net weekly earnings recorded in that table commencing on 18 April 2008 (which was after the appellant had left the employ of the respondent and had commenced his own textile cutting business) were derived over what was assumed to be a four day working week on average over the relevant period. That assumption seems to have had its genesis in the evidence of the appellant that after he commenced work as an independent contractor in April 2008 he could only work three days a week. However the primary judge did not accept this evidence as it was inconsistent with an agreed calendar of dates tendered to him which, according to his Honour, revealed that for most weeks the appellant worked four days and sometimes five days a week. Furthermore, according to the appellant's evidence referred to by the primary judge, he sometimes worked on Saturdays following a five day working week. Accordingly, the appellant's submissions based on the schedule of earnings provided to this Court proceeds on an assumption which the primary judge was not prepared to accept. 58In the foregoing circumstances, the primary judge was faced with a situation where he had rejected the appellant's case at trial but had accepted that he had sustained a partial diminution in his earning capacity. Relevantly, there was no finding that that diminution was equivalent to one full day's work per week, week in week out. On the figures provided to him, his Honour determined that the partial incapacity which the appellant had sustained sounded in a financial loss (apart from a closed period of eight weeks which was not in dispute) to the extent of $100 net per week on average from 1 July 2009 and continuing. 59The appellant's case on appeal was that his Honour's figure of $100 net per week was wrong and that he should have assessed the appellant's economic loss, both past and future, on the basis that he had lost one day's wages per week, the amount of which was to be derived by taking 20 to 25 per cent of what he was earning per week over the relevant period. Thus, for instance, it was submitted that in the period March 2008 to June 2009 the appellant lost between $200 and $300 net per week, a figure which seems to be equivalent to 20 per cent of $1,124 which was the net weekly amount he apparently earned between 18 April 2008 and 30 June 2008. 60The difficulties facing the appellant with respect to his current approach to the assessment of his past and future economic loss are fourfold. First, it proceeds on the unproven assumption that the appellant was, on average, unable to work more than four days per week for the whole of the period claimed. On the contrary, the primary judge, having reviewed the medical evidence, seems to have concluded that the appellant was fit for suitable duties on full hours but with lifting restrictions. It was those restrictions that resulted in a finding of partial economic incapacity. 61Secondly, although the primary judge accepted that the appellant had sustained a diminution in his earning capacity, he did not attempt to quantify its extent. In fact he found that, on the evidence (which was less than satisfactory particularly with respect to the appellant's earnings between injury and trial) it was not possible for him to come to any concrete view as to the extent of the loss which the appellant may have suffered. 62Thirdly, following from the last point, his Honour did not find as a fact that the diminution of the appellant's earning capacity was that he was only able to work an average of four days per week so that his loss was equivalent to one day's net wages per week. Fourthly, as Emmett JA has emphasised, no case of the kind now advanced on appeal was put to the primary judge for consideration so as to enable him to make the finding of fact on which the appellant's case now depends. 63In the foregoing context it is important to note that the appellant accepted in oral argument on the appeal that his case rested essentially upon the primary judge's finding that his earning capacity was diminished to the extent of one day per week so that he was only ever able, at least on average, to work four days per week on and from 18 April 2008. As I have already indicated, in my view his Honour made no such finding and it was not submitted that the evidence, as accepted by the primary judge, supported such a finding either by him or by this Court. 64Although, as I have observed, the appellant gave oral evidence that he was only able to work three days per week on full hours it is apparent that the primary judge was not prepared to accept that evidence in light of the documentary material which, according to his Honour, revealed that the appellant worked five days in many weeks after he left the employ of the respondent in April 2008 and commenced his own textile cutting business. 65As noted above the primary judge did find the appellant was not able to continue full-time work with the respondent due to the disability arising from his injury and that that resulted in a diminished earning capacity. However, that disability related to his inability to work full time without lifting restrictions. His Honour did not purport to assess or determine that the appellant's incapacity was equivalent to one day's work per week and, as I have observed, no challenge is made by the appellant to the effect that no such finding was made. Rather, it was submitted that there was such a finding but in my view that is not so. 66In these circumstances the appellant's argument on the appeal is essentially undermined. In the circumstances as I have related them, in my view it was open to the primary judge to adopt an average figure representing the financial loss to the appellant due to his partial diminished earning capacity. Furthermore, although the genesis of the figure of $100 net per week is unknown and how his Honour arrived at that figure is unexplained, nevertheless it was assessed by him as an average over a lengthy period and on the rather unsatisfactory evidence to which I have referred. In these circumstances I am not prepared to find that his Honour's assessment of the appellant's net weekly loss was demonstrably wrong. 67Accordingly, for the foregoing reasons I agree with Emmett JA that the appeal should be dismissed with costs. ********** 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. Decision last updated: 24 November 2014