AAI Ltd v Marinkovic
[2017] QCA 54
•31 March 2017
SUPREME COURT OF QUEENSLAND
CITATION:
AAI Limited & Anor v Marinkovic [2017] QCA 54
PARTIES:
AAI LIMITED
(first appellant)
JOHN McNAUGHTON
(second appellant)
v
JACK MARINKOVIC
(respondent)FILE NO/S:
Appeal No 6205 of 2016
DC No 2239 of 2014DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Brisbane – [2016] QDC 136DELIVERED ON:
31 March 2017
DELIVERED AT:
Brisbane
HEARING DATE:
16 November 2017
JUDGES:
Fraser and Morrison JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS: 1. Allow the appeal to the extent of awarding $16,824.10 for interest on past economic loss instead of $19,545.
2. Set aside the judgment entered on 3 June 2016 and substitute judgment for $458,528.10.
3. Otherwise dismiss the appeal.
4. The appellants are to pay the respondent’s costs of and incidental to the appeal on the standard basis.
CATCHWORDS:
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – where the respondent was injured in a motor vehicle accident caused by the second appellant – where the respondent had pre-existing injuries and suffered multiple injuries – where a number of injuries had to be assigned an ISV value under the Civil Liability Regulation 2014 (Qld) – where the appellant contended that the trial judge erred in determining which was the dominant injury for the purpose of the Civil Liability Regulation 2014 (Qld) – where the appellant contended that this error was due to a lack of medical evidence – where the trial judge adopted an uplift of 25 per cent – where the uplift was awarded so that a psychiatric injury, which was not assessable under the ISV scales was accounted for – where the appellant contended there were no proper reasons for adopting an uplift – whether the trial judge correctly applied the ISV tables in the Civil Liability Regulation 2014 (Qld) – whether the amount award was the proper quantum of damages
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – where the respondent claimed to have suffered psychologically and physically – where the respondent claimed he was no longer capable of working – where the respondent refused a number of job offers – where the appellant challenged the respondent’s contention that he would have worked until he was 70 – where the trial judge made various findings as to the respondent’s credibility and reliability, including that the respondent had tendered false tax returns as part of his evidence of lost earning capacity – where the trial judge found that there was nonetheless a reduced earning capacity – where the appellants contended that the inconsistencies in the respondent’s evidence should have resulted in a finding that the respondent was unreliable – where the focus of the grounds of appeal was whether the findings made by the trial were against the evidence – whether sufficient evidence was available to form a judgment on the issue of lost earning capacity – whether the trial judge’s findings are supported by the evidence
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – where the respondent did not include loss of superannuation in the pleadings or the statement of loss and damage – where loss of superannuation was plead at trial – where the total award made by the trial judge was more than that in the pleadings or in the statement of loss and damage – whether the trial judge was correct to award damages for loss of superannuation – whether the trial judge erred in calculating the final award
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – where a minor mathematical error was made in the assessment of damages – where the trial judge failed to make deductions for Centrelink payments received by the respondent – whether the impact of that error is such that the award should be changed
Civil Liability Act 2003 (Qld), s 54, s 55
Civil Liability Regulations 2014 (Qld), sch 3, s 3, s 4, sch 4
Uniform Civil Procedure Rules 1999 (Qld), r 151(1)(b), r 155, r 547Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47, cited
AMP General Insurance Ltd v Kull [2005] NSWCA 442, followed
Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41, followed
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Giorginis v Kastrati (1988) 49 SASR 371, distinguished
Matar v Jones [2011] NSWCA 304, followed
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5, followed
O’Brien v McKean (1968) 118 CLR 540; [1968] HCA 58, followed
Williams v Partridge [2009] QSC 278, distinguishedCOUNSEL:
M I Grant-Taylor QC, with R D Green, for the appellants
K N Wilson QC, with P J Goodwin, for the respondentSOLICITORS:
Bray Lawyers for the appellants
Bartels Lawyers for the respondent
FRASER JA: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.
MORRISON JA: On 30 April 2010 Mr Marinkovic was in a car, stationary in a line of traffic, when it was struck from behind by another car driven by Mr McNaughton. Mr Marinkovic said he sustained personal injuries from the collision and started proceedings for damages.
The only issue at the trial was the proper quantum of damages.
The assessment of damages was made more complicated by the fact that in October 2008 Mr Marinkovic had suffered an injury in another accident. As the learned trial judge said, the assessment of damages depended essentially on the extent to which his condition has been made worse as a result of the second collision. Mr Marinkovic’s case was that by the time of the second accident he had largely recovered from the first, whereas the appellants submitted that his current problems were really the result of the first accident, or pre-existing degeneration.
At trial he was awarded a total of $461,249 in damages, plus interest of $19,852. The damages were assessed under the following heads:
(a)general damages: $35,000;
(b)past economic loss: $240,000;
(c)past superannuation: $15,000;
(d)interest on those components: $19,545;
(e)future economic loss: $135,000;
(f)special damages: $4,577; interest on that: $307; and
(g)future expenses: $12,000.
Some background facts
There was no challenge to the learned trial judge’s summary of the background facts, and I gratefully adopt them below.
Mr Marinkovic was born on 6 November 1956 and came to Australia in 1969. He left school at about age 16 and did a range of jobs, including qualifying as a boilermaker welder in a car factory. He also spent time driving trucks at a mine, and went overseas for three years, then worked for a time as a tiler’s labourer before obtaining a tiler’s license in 2004. He described various jobs associated with tiling work, some of which sounded quite physically demanding. He worked as an independent tradesman, doing both domestic and commercial jobs. In about 2005 he built a house as an owner builder, doing some of the work himself and helping other tradesmen do their work. The house was sold in 2009, at a reasonable profit.
The first accident occurred on 7 October 2008. Mr Marinkovic had parked his van in front of the new house, and was reversing in order to U-turn it when there was a collision with a four wheel drive which was driven down the driveway of the house next door. He said that he suffered a sore neck as a result of the accident which interfered with his work for a time. Mr Marinkovic said that at the time when the second accident he was getting better again and doing lots of exercises on medical advice, and was wanting to do more work.
The second accident occurred on 30 April 2010 when he was stationary behind traffic waiting for a traffic light when his vehicle was struck from behind with some force and without any warning. He hit his head on the windscreen, and his breath was knocked out of him. He was taken by ambulance to the QE2 Hospital where he was given morphine, but discharged early the next morning. The next day his neck and back felt sore, and he went to see a GP. He was treated initially with bed rest and hydrotherapy, but after a time shortage of funds drove him back to work, though he had great difficulty in working and needed to take frequent rest breaks.
Findings at trial
Having reviewed the medical evidence in some considerable detail,[1] the learned trial judge found that Mr Marinkovic suffered injuries in the second accident,[2] which caused an adverse psychological reaction,[3] that he has since suffered, and continues to suffer, significant pain, and that he was significantly worse off after the second accident, in terms of his physical condition, particularly his pain, his psychiatric condition (which was new) and the effect on his ability to work.[4]
[1]Marinkovic v McNaughton [2016] QDC 136 (Reasons) [5]-[34].
[2]To the lower back and right shoulder, and an aggravation of a pre-existing condition of the neck.
[3]An adjustment disorder with anxiety and depressed mood.
[4]Reasons [60].
The learned trial judge found that as at the trial, Mr Marinkovic’s ability to work had not improved. He was getting pain in his neck, right shoulder and lower back, aggravated any activity, and he took painkillers when required.
The issues on appeal
The appellants challenged the award of damages on a number of grounds, contending that the award was erroneously too high. It was contended that there were two findings by the learned trial judge that should have affected the award, at least under various heads of damage. The first was that Mr Marinkovic’s tax returns were essentially works of fiction.[5] The second was that Mr Marinkovic was not a reliable witness.[6] The contention was that “those findings incidental to the assessment of damages reflected an acceptance of matters that were glaringly improbable or contrary to compelling inferences” and the award was contrary to those findings.[7]
[5]Reasons [47].
[6]Reasons [53].
[7]Appellants’ Further Amended Outline, paragraph 5.
The grounds were many and varied, and there were two contended mathematical errors in the calculation of the damages. Including those grounds added by amendment at the hearing of the appeal, they can be summarised as shown below:
(a)the awards under the various heads of damage were against the evidence, principally because of the findings that Mr Marinkovic was an unreliable witness, and that his tax returns were a work of fiction;
(b)as to general damages, learned trial judge:
(i)was in error to hold that the dominant injury was the shoulder injury and to adopt ISV 25 item 97 in the Civil Liability Regulations 2002 (Qld);
(ii)failed to give proper reasons were given for adopting an uplift in excess of 25 per cent; and
(iii)erred in finding that the residual earning capacity was $16,000;
(c)the evidence of Ms Coles (as to the symptoms Mr Marinkovic reported to her) should not have been rejected on the basis that she was neither a psychiatrist nor psychologist;
(d)the awards for past economic loss, lost superannuation and future expenses were in error because they did not accord with the amounts specified in the Statement of Claim and/or the Statement of Loss and Damage;
(e)as to the award for past economic loss, there was error in using a notional working life to age 70;
(f)the awards were not determined with proper regard to ss 54 and 55 of the Civil Liability Act 2003 (Qld), in that the evidence did not support the findings as to average weekly earnings and the loss of earnings.[8]
[8]As oral argument progressed it became apparent that the grounds based on a failure to properly apply ss 54 and 55 of the Civil Liability Act had no scope beyond those contending that findings were against the evidence.
The mathematical errors concerned the weekly rate adopted for past economic loss, and interest on that component.
The relief sought by the appellant was that this Court assess the damages itself.[9]
[9]Amended Notice of Appeal, paragraph 3.
Discussion
Because of the interaction of various grounds of appeal, and the breadth of the challenge, it is convenient to deal with the evidence, contentions and discussion of each area in categories.
Findings as to credit and reliability
The learned trial judge made a number of specific findings concerning the credit and reliability of Mr Marinkovic, principally based on inconsistencies between his account and what was revealed in his tax returns:
(a)the tax returns for 2004 – 2014 “raised more questions than they answered”; the returns had been lodged late, the 2004 return in 2011, the 2005 and 2007 returns in 2009;[10]
(b)his explanation that he did not do much paid work between 2005 and 2009 because he was working on the house was not consistent with the documentary material in the form of his owner builder records; “I cannot accept that in 2008 he was working on the home 75-80% of his time, as he claimed”;[11]
(c)in his evidence he “was very vague about his business earnings, and suggested in effect that he had no idea what money he was making at any given time, though he maintained that before the first accident he was a fast and efficient tiler who always had plenty of work to do”; “evidence that his capacity for work has not improved since the second accident, indeed that if anything his symptoms have become more severe as time has passed since the second accident, is not consistent with the increase in net income in 2013 and 2014”;[12]
(d)his Honour could not accept his explanation for the relatively high turnover for the 2008 tax year, namely that he recalled adding something for his labour when building his own house to his income because he made a profit when he sold the house, saying that:[13]
“Apart from the fact that the house was supposed to have been sold in 2009, after the relevant period, at all times [Mr Marinkovic’s] tax returns were prepared by accountants or tax agents, and I cannot believe they would have prepared a return in that way, whatever [Mr Marinkovic] might have indicated to them. I think this was just an exercise in his trying to distance himself from the content of the income tax returns. As well, the figures given in the notice of accident forms for average weekly income are quite inconsistent with the tax returns.”
(e)the evidence of Mr Pantic and Mr Siljegovis “supports the proposition that [Mr Marinkovic] was able to work successfully as a tiling contractor prior to the first accident, which seems inconsistent with some of the turnover figures in the income tax returns”;[14] and
(f)looking at the inconsistency between what the tax returns revealed and what Mr Marinkovic said, “I must say that overall I think that the most plausible explanation for the inconsistency between [Mr Marinkovic’s] evidence and the content of the tax returns is that the latter are essentially works of fiction”.[15]
[10]Reasons [35].
[11]Reasons [38]; internal references omitted.
[12]Reasons [41].
[13]Reasons [42]; internal references omitted.
[14]Reasons [43].
[15]Reasons [47].
The approach of the appellants was to urge that the tax returns be accepted as reliable, but the learned trial judge rejected that:[16]
“Counsel for the defendants submitted that I should reject [Mr Marinkovic’s] oral evidence for various reasons including that it was inconsistent with the content of the tax returns, which I should accept as reliable. He did not advance any plausible reason for my accepting the tax returns as reliable, and I do not do so.”
[16]Reasons [48]. Internal reference omitted, where his Honour noted an inconsistent submission that the returns were inaccurate.
The learned trial judge then turned to the question of Mr Marinkovic’s credibility, noting the inconsistencies between the medical practitioners’ histories and what Mr Marinkovic said in evidence, and suggested evasiveness. His Honour continued:[17]
“Overall I am wary about the reliability of [Mr Marinkovic’s] evidence. Nevertheless, I consider that [Mr Marinkovic’s] basic complaints about his symptoms are reliable, for a number of reasons. Dr Morris did accept that [Mr Marinkovic] had suffered real injuries in the second accident, and they were the sort of injuries one would expect to produce pain. It is commonplace that soft tissue injuries are not detectable by x-rays etc., so a lack of objective evidence of the injuries is not in itself of particular significance. I thought of greater significance was the fact that both psychiatrists considered that [Mr Marinkovic] was suffering from real pain, and appeared to regard his complaints of pain as genuine. In addition, there was evidence of [Mr Marinkovic’s] behaviour from other witnesses who had had dealings with [him] since the accident which would be consistent with his suffering real problems after the second accident. Overall, therefore, although I am wary about [Mr Marinkovic’s] evidence, I am prepared to accept his evidence in relation to the back, neck and shoulder symptoms that he has suffered since the second accident, and his evidence of his psychiatric symptoms.”
[17]Reasons [53]; internal references omitted; emphasis added.
The learned trial judge then dealt with some specific submissions of the appellants, as to the reliability of Mr Marinkovic’s evidence, particularly as to the extent of his recovery after the first accident, and rejected them.[18] In the course of that exercise his Honour made some specific findings:
(a)referring to a GP’s notes: “None of the right shoulder, right arm or lower back problems had been present before the second accident. That was quite soon after the second accident, and I regard that as sufficiently contemporaneous documentation of the existence of these complaints promptly after the second accident to confirm their relationship to the second accident, and to show they reflect injuries suffered in that accident.”;[19]
(b)“Overall, I consider that the evidence supports a finding that [Mr Marinkovic’s] symptoms had been improving prior to the second accident, but that he was still to some extent limited in the work that he could do, in that he had difficulty with the heavier aspects of tiling work.”;[20]
(c)“The bulk of the medical evidence supports the view that [Mr Marinkovic] suffered additional injuries in the second accident, and I accept that he did so, in particular suffering a right shoulder injury and low back pain which would be further obstacles to any hands on tiling work, that is, work other than “supervision”. The evidence also supports the view that [Mr Marinkovic’s] pre-existing neck condition was aggravated by the second accident, and there was the further difficulty of his psychiatric condition. In relation to this, the main difference between the psychiatrists is as to the severity of the condition, rather than its existence and its connection with the second accident.”;[21] and
(d)the psychiatric condition was one “I would expect would be likely to impair his earning capacity after the second accident”.[22]
[18]Reasons [54]-[60].
[19]Reasons [55].
[20]Reasons [57].
[21]Reasons [58].
[22]Reasons [59].
The learned trial judge then made his ultimate finding on the question of the causative link between the second accident and the symptoms and condition of Mr Marinkovic:[23]
“Although there is a good deal of [Mr Marinkovic’s] evidence which I do not regard as reliable, I do accept, in the light of all of the evidence, that he suffered and continues to suffer pain since the second accident, to a significant extent, and that in the second accident he suffered injury to his lower back, his right shoulder, and an aggravation of a pre-existing condition of the neck, and that as a result of those injuries he has suffered an adverse psychological reaction, namely an adjustment disorder with anxiety and depressed mood. It was submitted for the defendants that [Mr Marinkovic’s] injuries in the first accident had been significantly affecting his ability to work, and that it was not clearly shown that the situation was significantly different after the second accident. I reject that submission, and consider that [Mr Marinkovic] was significantly worse off after the second accident, in terms of his physical condition, particularly his pain, his psychiatric condition (which was new) and the effect on his ability to work.”
[23]Reasons [60]; internal references omitted.
One aspect relied upon by the appellants were alleged inconsistencies in the histories given by Mr Marinkovic to different medical practitioners.[24] This was a springboard for the submission that Dr Byth’s report should not have been relied upon, nor what was reported to him. I have reviewed those passages, and believe the contention cannot be sustained.
[24]Appellants’ outline on appeal, paragraph. The instances given were as between Dr Byth (AB 244-247, 874), Ms Coles (AB 800-803) and the GP records (AB 123-124, 181-182 and 1180).
There is no significant difference in what was related to Ms Coles and what was related to Dr Byth, allowing for the fact that each had expertise in different fields and only Dr Byth was qualified in the field of psychiatry, the field to which the relevant parts of the history were concerned. No doubt the way in which the questions were posed had an influence on the way in which information was given. Each were told that Mr Marinkovic: had become angrier and more depressed; was upset with his work; had become moody; had low self-esteem; was less confident; had become forgetful; had flashbacks to the accident; had reduced concentration; felt less capable; was limited in his hobbies and leisure activity; lacked energy; avoided driving; and lacked energy and interest in housework.
The reference to the GP records[25] does not assist at all. It simply records a time when Mr Marinkovic mentioned feeling depressed in January 2014. That hardly establishes that the psychiatric condition first manifested itself in January 2014. Nor is the reference to Mr Siljegovic’s evidence[26] (as to when he and Mr Marinkovic played in a poker tournament) of any assistance. Whilst Mr Marinkovic said that playing helped him take his mind off things, it hardly establishes when the psychiatric condition started.
[25]AB 1180.
[26]AB 123-124.
What is evident is that the learned trial judge did not make a blanket rejection or acceptance of the evidence of Mr Marinkovic. His Honour was quite careful to make express findings on matters where he rejected his account, either because it was inconsistent with documents or evasive, or simply because he was not persuaded of its reliability. However, the learned trial judge was equally careful to make findings as to what he accepted from that evidence and whether Mr Marinkovic was credible and reliable.
A significant proportion of the appellants’ attack on Mr Marinkovic’s credit at trial (and on appeal) was based on the learned trial judge’s findings as to the tax returns. The essential parts of those findings are set out in paragraph [17] above. The appellants’ contention on appeal was that to find that the tax returns were works of fiction was tantamount to a finding of dishonesty, and that should have influenced the learned trial judge to wholly reject Mr Marinkovic’s evidence:[27]
“One cannot accept that returns submitted to the Australian Taxation Office in accordance with statutory obligations connoting candour, frankness and honesty, are works of fiction without at the very least the suggestion of reckless inaccuracy or at the worst, sheer dishonesty. The grounds of appeal articulate complaints essentially to the effect that these findings, having been made, did not inform the reasoning process through which the damages were assessed, to the extent that such findings were required.”
[27]Appellants’ outline on appeal, paragraph 4.
In my view that misunderstands what was meant by the learned trial judge in his findings.
As noted above in paragraph [18], the appellants were urging the learned trial judge to find that the returns were, in fact, accurate. No doubt that was part of the reason why the learned trial judge spent some time analysing the tax returns, noting aspects that told against their acceptance, because they “raised more questions than they answered”. The issues raised included:
(a)many had been lodged well after the years to which they related;[28] for example, the 2004 return was lodged in 2011, and the 2005 and 2007 returns in 2009;
(b)one contained a substantial item of expense simply labelled “Bob”, and contained an apparently doubled up entry for materials and supplies;[29]
(c)the expenses listed in all returns since the first accident did not show any payment to employees or contractors;[30]
(d)Mr Marinkovic’s explanation for the low income in the years between 2005 and 2009 was that he was building his house; that explanation was inconsistent with his owner/builder records, and was rejected, at least for the 2008 year (the year in which the first accident occurred);[31] the finding was that the house was completed by the end of 2006 and Mr Marinkovic was living in it by the end of 2007;[32]
(e)there were substantial variations in gross income “which are not clearly explained by the evidence”, and also an unexplained “wide variation in the ratio of gross earnings to expenses”;[33]
(f)Mr Marinkovic’s explanations for the discrepancies were largely rejected;[34] specifically the explanation for the relatively high turnover in the 2008 year (that he added a component for his labour while building his house) was rejected:[35]
“… at all times [Mr Marinkovic’s] tax returns were prepared by accountants or tax agents, and I cannot believe they would have prepared a return in that way, whatever [he] might have indicated to them. I think this was just an exercise in his trying to distance himself from the content of the income tax returns.”
(g)Mr Marinkovic admitted that he sometimes worked on a barter basis, and evidently did not declare the value of the benefits received as income;[36] and
(h)Mr Marinkovic’s passing up of job offers, which would have earned him more than the “almost insignificant amounts which he was earning from his tiling business”, seemed strange “if that were really all that he was making from it”.[37]
[28]Reasons [35].
[29]Reasons [36]. Another witness said he was “Bob” and the item was a payment to him for materials: Reasons [40].
[30]Reasons [37].
[31]Reasons [38].
[32]Reasons [39].
[33]Reasons [40].
[34]Reasons [41]-[43].
[35]Reasons [42].
[36]Reasons [44].
[37]Reasons [47].
Those matters led the learned trial judge to make the comment referred to above in paragraph [17](f). However, that was not a finding to that effect. There was no occasion to make such a finding as neither side were seeking it. Immediately following that comment, in paragraph [48] of the Reasons, the learned trial judge referred to the submission by the appellants (that he should accept the returns “as reliable”) and said “I do not do so”. The extent of the finding was that the learned trial judge did not accept the tax returns as reliable. All that his Honour was doing in paragraph [47] of the Reasons was to express a view about what the most plausible explanation was, not that it was so.
In any event, a finding that there has not been honest compliance with taxation laws does not inevitably mean that loss of earning capacity or economic loss cannot be made on other evidence.[38]
[38]Matar v Jones [2011] NSWCA 304 at [16] per Macfarlan JA; AMP General Insurance Ltd v Kull [2005] NSWCA 442, at [1], [70].
The learned trial judge then went on the make the findings about Mr Marinkovic’s credit and reliability, which are set out above in paragraphs [19] to [22]. At trial the appellants urged that Mr Marinkovic’s evidence should be rejected, but on the basis that the tax returns were true, not false. However, there can be no credible suggestion that his Honour did not weigh the impact of his conclusion (that the tax returns were works of fiction) on the issue of the credit and reliability of Mr Marinkovic’s evidence otherwise. Plainly it was taken into account, and, notwithstanding that finding, Mr Marinkovic’s evidence was accepted on particular matters.
Thus, the findings in paragraphs [19]-[22] above reveal a careful analysis of the evidence and acceptance of it on critical matters, such as: (i) complaints about his symptoms, especially evidence in relation to the back, neck and shoulder symptoms that he has suffered since the second accident, and his evidence of psychiatric symptoms; (ii) that he was significantly worse off after the second accident, in terms of his physical condition, particularly his pain, his new psychiatric condition and the effect on his ability to work; and (iii) his symptoms had been improving prior to the second accident, but he was still to some extent limited in the work that he could do, in that he had difficulty with the heavier aspects of tiling work, and the right shoulder injury and low back pain would be further obstacles to any hands-on tiling work, that is, work other than “supervision”.
Moreover, the learned trial judge did not base his acceptance of Mr Marinkovic’s evidence on his evidence alone. Support was derived from his Honour’s preference for, and acceptance of, the evidence of medical practitioners and other witnesses: (i) his Honour accepted Dr Morris’s evidence that Mr Marinkovic had suffered real injuries in the second accident, and they were the sort of injuries one would expect to produce pain; (ii) he accepted the evidence of both psychiatrists that Mr Marinkovic was suffering from real pain, and that his complaints of pain were genuine; and (iii) his Honour accepted the evidence of other witnesses who testified as to their dealings with Mr Marinkovic after the second accident, which were consistent with his suffering real problems after the second accident. Those findings were open on the evidence.
It is of significance that the learned trial judge did not accept all of the evidence of the medical practitioners, but engaged in a careful dissection of it. For example:
(a)whilst his Honour accepted Dr Morris’ evidence as set out in the preceding paragraph, his Honour also rejected part of it; specifically his Honour rejected Dr Morris’ evidence to the extent that it was inconsistent with Mr Marinkovic’s evidence about the extent to which his symptoms had been improving prior to the second accident, but his ongoing limitations in the work that he could do;[39]
(b)Dr Morris’ assessment of the permanent impairment associated with the cervical spine was rejected, and that of Dr Pentis and Dr Todman was preferred, though the reverse was the case with their whole of person assessment of impairment;[40]
(c)had the learned trial judge been called upon to assess the psychiatric injury alone, his Honour would have preferred the evidence of Dr Byth to that of Dr Chalk;[41] and
(d)it is evident that his Honour preferred the evidence of other practitioners to that of Dr Staines.[42]
[39]Reasons [57].
[40]Reasons [62]-[63].
[41]Reasons [65].
[42]Reasons [23]-[24].
Given these matters the contentions that the learned trial judge should have rejected the evidence derived from the histories given to the medical practitioners, and that the psychiatric and psychological aspects of his presentation should have been rejected, cannot be sustained.
Similarly, the contention that that the learned trial judge should have found that Mr Marinkovic’s earning capacity had not deteriorated from the first accident, cannot be sustained. In truth this submission relied principally upon the finding as to the tax returns and the contended flow-on effect on Mr Marinkovic’s credit. That is a too simplistic an approach to the analysis carried out by the learned trial judge.
In reaching his conclusion on the question of Mr Marinkovic’s credit and reliability, the learned trial judge accepted the evidence of other witnesses who testified as to their dealings with Mr Marinkovic after the second accident. This evidence was consistent with his suffering real problems after the second accident. That evidence included that which is summarised below in paragraphs [52] to [55]. There can be no real doubt that in weighing that evidence the learned trial judge also weighed what Mr Marinkovic said about the job offers.
As to this aspect, senior counsel for the appellants referred to the differing accounts that Mr Marinkovic gave. In response to Mr Pantic’s various offers he said: (i) first, that he told Mr Pantic that he would have to wait and see what was happening with his health;[43] (ii) that in 2008 he couldn’t leave his house unfinished (though he did not say that he told Mr Pantic this);[44] and (iii) that whilst he could not remember whether he declined the offer in September 2008, he thought he had told Mr Pantic that he preferred to work for himself, but he then corrected that to say that he refused it because of the first accident.[45] As for Mr Cowen’s offer, his evidence was that was declined because he could not do the work.[46]
[43]AB 61 line 45 to AB 62 line 9.
[44]AB 62 lines 15-20.
[45]AB 62 lines 29-40; AB 63 lines 19-32; AB 166 line 45 to AB 167 line 10.
[46]AB 164 lines 23-42. That was supported by Mr Cowen’s evidence: AB 151 lines 40-44.
None of that evidence compelled a conclusion contrary to the finding made by the learned trial judge; to the contrary, it provided an ample foundation for it.
The last aspect of this category is the contention that the learned trial judge was in error to reject the evidence of Ms Coles (as to the symptoms Mr Marinkovic reported to her) on the basis that she was neither a psychiatrist nor psychologist. In order to consider this further one needs to see exactly what his Honour said.
In cross-examination by counsel for the second defendant, it was suggested to Dr Byth that there were complaints to Ms Coles about symptoms of depression after the first accident but prior to the second, which suggested that the absence of an allowance for any pre-existing condition in the PIRS assessment was not appropriate.[47] It was being suggested that things reported to Ms Coles laid a foundation for concluding that there was a pre-existing psychological condition.[48]
[47]Reasons [28]-[29].
[48]AB 74 line 36 – AB 75 line 20.
The learned trial judge expressed some difficulty with the submission:[49]
“There are two difficulties with this. The first is that Ms Coles is an occupational therapist, not a psychiatrist or a psychologist, and was not in a position to say whether [Mr Marinkovic’s] complaints reflected some real physiological problem prior to the second accident. The second is that Ms Coles saw [Mr Marinkovic] about the first accident only after the second accident had occurred, indeed fairly soon after it had occurred, at which time it might have been particularly difficult even for her to perform an assessment of his occupational capacity prior to the second accident.”
[49]Reasons [28]; internal references omitted.
It seems plain that the reference to a “physiological problem” in that passage was intended to mean a “psychological problem”. In my view the learned trial judge was doing no more than pointing out the obvious. Ms Coles was not a psychiatrist or psychologist, but rather an occupational therapist. Plainly she was unqualified to extract a history that related to or revealed such matters, let alone comment on them. His Honour was simply saying that whatever she asked to elicit the responses that were the subject of the cross-examination, was not asked by a relevantly qualified person. In other words Ms Coles did not ask questions aimed at assessing psychological impact. In my view that is an unexceptional observation and logical obstacle to the proposition being put to Dr Byth.
The learned trial judge’s second point (that Ms Coles only saw Mr Marinkovic about the first accident fairly soon after the second accident had occurred) was an obvious qualification on her ability to assess his occupational capacity prior to the second accident. His Honour was simply highlighting the reservations that followed from the timing of her contact with Mr Marinkovic compared to when the second accident happened. The learned trial judge referred to the problem specifically when reviewing her evidence:[50]
“[Mr Marinkovic] was seen by an occupational therapist, Helen Coles, on 31 May 2010 for the purposes of an assessment for [his] solicitors. This assessment was undertaken in relation to the first accident, though in fact it occurred one month after the second accident, when [Mr Marinkovic] would have been particularly affected by the consequences of that accident. In those circumstances, I would expect this to have interfered with her ability properly to assess the consequences of the first accident. Indeed, Ms Coles stated in her report that because of the second accident his functional capacities could not be retrospectively assessed.”
[50]Reasons [32]; internal references omitted.
In my view the learned trial judge cannot be shown to have been in error in this respect.
Findings against the evidence?
The focus of these grounds were the findings as to Mr Marinkovic’s lost earning capacity as reflected by his ability to work (before and after the first accident), his employment and offers of employment. In terms of specific employment issues the contentions attacked findings as to Mr Marinkovic’s reasons for rejecting certain employment with Mr Cowen, and the prospect of employment with Mr Pantic.
Existence of lost earning capacity
Subsequent to the first accident the histories given to the medical practitioners and Ms Coles pointed to limitations on Mr Marinkovic’s capacity to work. For example, the learned trial judge summarised the evidence from the GP,[51] Dr Todman,[52] Dr Morris,[53] Dr Pentis,[54] and Dr Tho.[55] His Honour also had regard to the evidence of Ms Coles.[56] The summaries are accurate reflections of their evidence.
[51]Reasons [5].
[52]Reasons [6], [9].
[53]Reasons [10]-[11].
[54]Reasons [14], [18].
[55]Reasons [19].
[56]Reasons [32], [56].
Subsequent to the second accident Mr Marinkovic was examined by some of the same medical practitioners, and others, giving them histories that revealed his limitations. For example, the learned trial judge summarised the evidence from Dr Todman,[57] Dr Morris,[58] Dr Pentis,[59] Dr Saines,[60] Dr Byth,[61] and Dr Chalk.[62] His Honour also referred to the evidence of Ms Coles.[63] Once again, the summaries are accurate reflections of their evidence.
[57]Reasons [7]-[9].
[58]Reasons [12]-[13].
[59]Reasons [15]-[17].
[60]Reasons [20]-[24].
[61]Reasons [25]-[27].
[62]Reasons [30]-[31].
[63]Reasons [33]-[44].
The learned trial judge expressed the need for caution about the inconsistencies between Mr Marinkovic’s evidence and the histories given to the medical practitioners.[64]
[64]Reasons [50].
The learned trial judge also examined the documents relating to the claim from the first accident to see what they may reveal. His Honour concluded that:[65]
“My view is that [Mr Marinkovic] in his oral evidence was inclined to minimise the effect of the first accident immediately prior to the second accident, but I think the more likely explanation for the documents used in the earlier proceeding is that they did not reflect such improvement as had occurred. A better indication is that that earlier claim was settled for a modest sum, a very modest sum in the light of the claims in the documents, which is consistent with [Mr Marinkovic’s] condition having in fact improved prior to the second accident so that his subsequent problems were not principally associated with the first accident.”
[65]Reasons [52].
There was evidence from other witnesses that provided some support for the finding that Mr Marinkovic had limited capacity to work. The learned trial judge referred to the evidence from Mr Siljegovis, concluding that his evidence supported the proposition that Mr Marinkovic was able to work successfully as a tiling contractor prior to the first accident.[66] Mr Siljegovis gave evidence that before the second accident Mr Marinkovic was “a good tiler and a very hard working man”, whereas afterwards “he couldn’t work anymore … if I get him to do something he’ll probably come in two, three hours … And he used to sit down and he’d say mate, I can’t help you any more”.[67] The limited way in which Mr Marinkovic could work was expressed in this way: “He was trying to help us, you know … trying whatever he could to help us …”.[68]
[66]Reasons [43], [53].
[67]AB 179 lines 20-30.
[68]AB 183 line 19.
His Honour also referred to the evidence of Mr Pantic[69] (who had offered Mr Marinkovic a job in 2007) and Mr Cowen, who gave evidence as to a job offer shortly before the trial, which was rejected by Mr Marinkovic on the basis that he could not manage it.[70] That part of Mr Cowen’s evidence to which the learned trial referred included the following, applicable to Mr Marinkovic’s work capacity:
(a)he did not do heavy work;[71]
(b)Mr Cowen had offered him permanent employment doing “maintenance, cleaning and a bit of welding … something small … and he declined. He said he wouldn’t be able to do that … he said he would like to do it but he can’t”;[72] he said “that with his condition that he has that, you know, sort of two/three hours a day would be maybe maximum and that wouldn’t be a definite thing either”;[73] he said that he “wouldn’t be physically capable of doing it”;[74] and
(c)the offer was made about six weeks before the trial and was for a 40 hour week as a general maintenance caretaker;[75] it was made because Mr Cowen thought the job would be easy enough for Mr Marinkovic to do.[76]
[69]Reasons [44].
[70]Reasons [45].
[71]AB 151 line 18.
[72]AB 151 lines 28-43.
[73]AB 152 lines 27-28.
[74]AB 154 line 33.
[75]AB 153 lines 1-9, 30-31.
[76]AB 154 line 10-14.
The learned trial judge noted that there was no real attack on the credit of witnesses such as Mr Siljegovis, Mr Pantic and Mr Cowen.[77]
[77]Reasons [76].
Mr Marinkovic also testified to the ways in which his capacity to work was impaired. For example he said that he refused the offer from Mr Cowen because there was too much heavy work involved. His Honour considered that the refusal was because Mr Marinkovic did not feel that he was up to working on a full time basis, even doing the sort of relatively light work that he had previously been doing for Mr Cowen.[78]
[78]Reasons [46].
Ultimately his Honour accepted the evidence of Mr Marinkovic as to the injuries he suffered in the second accident, and impact of the second accident on his capacity to work. The learned trial judge was able to assess the evidence of Mr Marinkovic, and other witnesses, at first hand, a considerable advantage this Court does not enjoy. This Court must respect those advantages.[79]
[79]Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, at [28]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, at [26]-[29].
The learned trial judge’s findings were expressed in the context of his Honour’s assessment of economic loss.[80] They were based on:
(a)acceptance of the weight of the medical evidence as to Mr Marinkovic’s reduced work capacity after the first accident and prior to the second;[81]
(b)that the already reduced work capacity was reduced even further by the second accident; Mr Marinkovic moved from a position where he could generally cope with tiling work apart from the heavier aspects of it, to a position where he had difficulty in doing even light tiling work other than to a limited extent;[82] and
(c)Mr Marinkovic was left in a situation where he was quite limited in his ability to do anything physical associated with tiling, and particularly a loss of a willingness to persevere because of his psychiatric state.[83]
[80]Reasons [72]-[76].
[81]Reasons [73].
[82]Reasons [74].
[83]Reasons [76].
There is no good reason to depart from the learned trial judge’s findings on credit and reliability, and his Honour’s acceptance of the medical evidence, particularly in so far as it revealed the symptoms suffered by Mr Marinkovic and the impact on his work capacity.
For these reasons and those given earlier in respect of the findings concerning Mr Marinkovic’s credit and reliability, (paragraphs [17]-[45] above) the learned trial judge’s findings[84] as to impaired capacity to work were open and cannot be said to be against the evidence.
[84]Particularly in Reasons [58]-[60] and [73]-[76].
Assessment of economic loss
The appellants contended that the learned trial judge erred in assessing the value of the lost earning capacity by reference to Mr Pantic’s offer of employment. In addition to points made in relation to credit and reliability, and the attack on the evidentiary basis for a finding as to work incapacity, the appellants pointed to the findings about the tax returns, the unexplained absence of business or tax records (that might evidence wages and expenses), and the fact that the assessment was based on a finding that Mr Marinkovic was unable to work commercially as a tiler in his own business.[85]
[85]Appellants further amended outline, paragraphs 12-21.
The start point for this discussion is the fact that the learned trial judge found that there was a loss of earning capacity as a consequence of the second accident. For the reasons given earlier that finding is not shown to be in error.
The learned trial judge acknowledged the difficulties in the task in assessing economic loss. On the one hand not only was there no reliable evidence of what money Mr Marinkovic was making, but there was really no reliable evidence as to what sort of money one might reasonably expect a self-employed tiler to make, either working on his own or in a position where he had to employ someone to do the heavier parts of the work.[86]
[86]Reasons [75].
On the other hand, the finding was that he was quite limited in his ability to do anything physical with tiling, particularly because of the psychological problems, and that would have significantly impacted on his working capacity. In the work he was doing for Mr Cowen, at $20 per hour, he was earning less than a tiler who could not do the heavier work. His Honour found that the fact that he was doing that sort of work for Mr Cowen at all, for such modest remuneration, suggested that he really was struggling to do any sort of tiling work after the second accident.[87]
[87]Reasons [76].
Notwithstanding that difficulty his Honour’s task was to assess the economic loss that resulted from the reduced earning capacity. Therefore the position that Mr Marinkovic was actually in at trial had to be compared to the position he would have been in, but for the second accident.
The learned trial judge started with the actual position. It was earning less than about $40,000 per annum, based on the rate he earned while working for Mr Cowen, and the fact that he turned down a full-time job at that rate. As noted elsewhere the evidence of Mr Cowen was accepted. The actual level was expressed in this way:[88]
“I conclude on the basis of the evidence that the true position is that [Mr Marinkovic] could do that sort of work for about half a day on most days, but occasionally there would be a bad day when he would not be able to cope, or perhaps a couple of bad days when he would only be able to do less work. If [Mr Marinkovic] were able to move into working just on a supervisory basis that would be less physically demanding, but I think it is very likely that that would require a much better head for business than [Mr Marinkovic] has, particularly given the restriction associated with his psychiatric condition. Realistically I think his current working capacity is about half a days work four days a week at about $20 per hour, or about $16,000 per annum. The tax on an income of $16,000 was $1,500 in 2011 and 2012; thereafter no tax was payable on that income: Ex 22.”
[88]Reasons [77].
In my respectful view the reasoning to reach that finding is unimpeachable. His Honour has worked on accepted evidence as to a rate, applied to an assessment, based on his Honour’s findings as to credit and reliability, of how long Mr Marinkovic was likely to work for each day and week.
The learned trial judge then turned to an assessment of what could have been earned but for the second accident. His Honour observed that there was “no evidence of what a self-employed tiler ought to be able to earn, either with or without the limitation which arose after the first accident, and … no reliable evidence as to what [Mr Marinkovic] was earning between the first and second accident”.[89] So his Honour turned to the evidence he did have:[90]
“The evidence that I do have that I can regard as reliable is that in early 2010, prior to the second accident, [Mr Marinkovic] was offered a position by Mr Pantic at a salary of $86,000 per year, which initially he had been interested in taking up, but which he could not take up following the second accident. I accept this evidence. $86,000 per annum would carry a liability to pay $19,770 tax in 2011, so is the equivalent of $66,230 net of tax.”
[89]Reasons [78].
[90]Reasons [78]; internal references omitted.
Three things are to be noted from that passage. First, adoption of it was a consequence of his Honour’s acceptance of Mr Pantic as a witness of credit. As noted earlier, there was no real attack on his credit.[91] Secondly, his Honour found that the evidence was reliable.
[91]Reasons [76].
Thirdly, the passage of evidence referred to by his Honour supports the finding. Mr Pantic said: he made the offer in May or June 2010; it was for full-time employment at $86,000 per year; he gave details as to the particular job it was for; Mr Marinkovic said that whilst he was interested in taking it up, he could not do so because of the second accident; he anticipated that it would involve continual employment as he believed Mr Marinkovic would be a good employee; in fact his company had continued to grow since that time so there would have been continual employment.[92]
[92]AB 156 line 13 to AB 157 line 20.
On the appeal the appellants’ criticism of the tax returns and absence of adequate business records placed particular reliance on the passage below from Giorginis v Kastrati,[93] where von Doussa J said:
“In a case like the present one, it is incumbent on the plaintiff to show how he has used his capacity for work both before and after the accident. The plaintiff will be well advised to produce the best evidence available. … If a plaintiff attempts to give oral evidence on these topics from memory, unaided by records which are in his possession or power, he invites the opposing party, and the court, to question his evidence. …
If a plaintiff does not adduce evidence of this kind which is in his power or possession many uncertainties are likely to remain. … However, the assessment is likely to be a modest one having regard to the uncertainties unnecessarily left open by the evidence. The plaintiff will usually not be heard to complain on appeal that the loss may have been greater. In some cases the failure to adduce the supporting evidence may well cause the court to feel unable to accept the oral evidence of the plaintiff, at least at face value. …
There will be cases where the nature and extent of the loss alleged will make it difficult or impossible to adduce evidence that permits the court to proceed to calculate damages in a precise way. …
But cases where the damages are, by the nature of the loss, difficult to calculate, are to be distinguished from cases, like the present, where precise calculation is rendered impossible, and even broad assessment difficult, not by the nature of the loss, but by a paucity of evidence where it is clear that it lies within the power of the plaintiff to produce business and taxation records usually maintained by people in employment or business or other evidence which could clarify the extent of his income.”
[93](1988) 49 SASR 371, at 375; King CJ and Legoe J concurring. The passage is as set out in the appellants’ outline.
This was in support of a submission that the findings “did not permit an approach to the assessment of damages for economic loss as undertaken by his Honour, and permitted only an assessment on a global basis”.[94] There are several important things to note about the parts relied upon above, and that submission.
[94]Appellants’ outline on appeal, paragraph 12.
First, there was a qualification in the second paragraph, omitted from the passage in the outline:
“It does not necessarily follow, as a matter of law or fact that proof of the plaintiffs claim for lost earning capacity will fail. The evidence may nevertheless establish, on the balance of probabilities, the likelihood of some substantial element of loss, and the court will take that into account in assessing general damages: Russell v J Hargreaves and Sons Pty Ltd (1956) 30 ALJ 533.”
Secondly, there was another (omitted) qualification in the third paragraph:
“In these cases, the plaintiff is not to be deprived of damages because the evidence does not permit a mathematical calculation: Hamlyn v Hann and Heagney [1967] SASR 387 per Mitchell J at 401. As Lord Devlin said in Yorkshire Electricity Board v Naylor [1968] AC 529 at 548: “... difficulty in calculation is not ordinarily taken as a ground either for reducing or for increasing the award.””
Thirdly, Georginis v Kastrati is not authority for the proposition that a court cannot make an assessment of economic loss and lost earning capacity in all cases where records are absent and tax returns are unreliable. If there is sufficient evidence to form a judgment on those issues the court is entitled to do so. In addition to the passage set out in paragraph [72] above, von Doussa J said:[95]
“However, where the fact of the receipt of other income is proved, then, in my view, the plaintiff is entitled to have that exercise of his earning capacity brought to account, although subject to reduction for the income tax which should have been paid, and subject to the question whether the plaintiff would have continued to exercise that capacity had he been required to pay tax on the additional income:…”
[95]Georginis v Kastrati at p. 376.
In this case there was evidence of the employment of Mr Marinkovic, his work capacity, and the income he could have earned had he accepted job offers, from Mr Pantic,[96] Mr Siljegovis,[97] and Mr Cowen.[98]
[96]In the years 1994-1996, 1997-1999 and 2005-2009: Reasons [43], [44].
[97]Reasons [43].
[98]Reasons [45].
Finally, it must be recalled that there is a distinction between loss of earning capacity, which is what an injured plaintiff is being compensated for, and loss of earnings. As McHugh J said in Medlin v State Government Insurance Commission:[99]
“In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because “an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss”. Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.”
[99](1995) 182 CLR 1, [1995] HCA 5, at 16; internal citations omitted. See also the joint decision of Deane, Dawson, Toohey and Gaudron JJ at 4.
That passage reflects what was said by Barwick CJ in O’Brien v McKean:[100]
“... I have elsewhere pointed out in relation to this aspect of economic loss in cases of personal injury, that it is the loss of earning capacity which has occurred by reason of the accident which is to be the subject of compensation by an award of damages: it is not a case of replacing the wages which would have been earned in the future by a sum of money which represents the present value of the total of such wages: see Arthur Robinson (Grafton) Pty Ltd v Carter. That loss of earning capacity has already occurred and is either permanent or likely to continue for some estimable time. The fair compensation for it is to be determined as a matter of judgment and not of calculation. But it is of course to be an informed judgment. Though the damages as I have said are not to be a replacement of the future wages, part of the relevant information for the purpose of forming a judgment as to the fair and reasonable compensation is a broad estimate of what that earning capacity before its destruction or diminution was capable of producing during such time as it would have been likely to be gainfully exercised. In obtaining such a conspectus, the vicissitudes of life, as it has been said, must not be lost sight of.”
[100](1968) 118 CLR 540, at 545-546.
That is the approach taken by the learned trial judge. That being so, there is no good reason to doubt the finding set out in paragraph [66] above.
A second submission based on Georginis v Kastrati was made, to the effect that damages should have been assessed on the basis of the income disclosed in the tax returns. It relied on this passage:[101]
“A court should not, generally speaking, make a finding favourable to the plaintiff in a personal injury case that his income is otherwise than he has disclosed to the revenue authority unless the plaintiff admits the nondisclosure. A fortiori, such a finding should not be made where the plaintiff denies that he has failed to properly disclose his income. Unless the plaintiff admits the falsity of his income tax returns the court should not speculate in his favour, for example that his pre-accident earnings were probably higher than he has disclosed. Rather, the court should adopt the income figures actually disclosed and base the assessment of damages on them. Again, if this results in a low assessment, that is the consequence of the plaintiff adhering to the accuracy of his income tax returns.”
[101]Georginis v Kastrati at 376.
In my respectful view, that line of reasoning should not be followed. First, it seems to take a censorious approach that imposes a form of curial punishment for actions taken out of court, and in that sense is a triumph of form over substance.[102] Secondly, it is wholly inconsistent with the obligation on the court to make an assessment of the damages that will adequately compensate the plaintiff for the injury caused by the defendant. As is made plain by Medlin, the court’s task is to compensate for the loss of earning capacity that is or may be productive of financial loss. Thirdly, it seems contrary to what was said earlier in Georginis v Kastrati, at page 376: see paragraph [73] above. Fourthly, it has not been followed, or disapproved, subsequently.[103]
[102]Morvatjou v Moradkhani [2013] NSWCA 157, at [84].
[103]Cohen v Ninkovic [2000] WASCA 169, at [14]-[15]; AMP General Insurance Ltd v Kull [2005] NSWCA 442, at [1] per Giles JA; Matar v Jones [2011] NSWCA 304, at [16]; Morvatjou at [55]-[84]; Pham v NMRA Insurance Ltd [2014] NSWCA 22, at [21]; cf Fine v Geier [2003] QSC 73, where this passage was cited as part of a larger passage, but it is not evident that Wilson J approved this particular approach.
The learned trial judge then turned to discounting factors, the first of which was the possibility that Mr Marinkovic would have declined the position anyway even if he had thought he was fit to take it and his tiling business was less remunerative, if he preferred to be self-employed. For that his Honour discounted the yearly figure by 30 per cent, to $60,000.[104]
[104]Reasons [80].
The reference in the appellant’s argument to “difficulties experienced by Mr Siljegovic in performing such work” is puzzling. He was 63 at the trial, and did commercial tiling work, which he carried out himself.[153] He gave some general evidence about tiling work, and that the hardest part was being on the knees,[154] but apart from that said nothing that would suggest he experienced any particular difficulty. Nothing he said could have an impact on the likelihood of Mr Marinkovic working to retirement age.
[153]AB 178-179.
[154]AB 184-185.
In my view, there is no merit in this challenge to the learned trial judge’s findings.
One additional matter
One further matter needs be mentioned.
The appellants’ outline on appeal included a submission, relying on a passage in Georginis v Kastrati, that “when tax fraud or tax evasion is disclosed on the evidence there is a duty upon the court to refer the matter for appropriate investigation”.[155] The relevant passage is as follows:[156]
“A failure to disclose income as required by s 161 of the Income Tax Assessment Act 1936, constitutes an offence which may attract heavy penalties: see s 223 of the Income Tax Assessment Act and ss 8c, 8k and 8p of the Taxation Administration Act 1953. Where a tax fraud or evasion of this kind is disclosed in evidence, it is the court’s duty to draw the evidence to the attention of the executive branch of government for such action as may be appropriate: Petera Pty Ltd v EAJ Pty Ltd (1984) 7 FCR 375.”
[155]Appellants outline on appeal, paragraph 28.
[156]Georginis v Kastrati at 376.
The topic was addressed during oral submissions by senior counsel for the appellants. It was acknowledged that there was no such step taken by the learned trial judge. When pressed as to whether the appellants were seeking to have this Court take that step, senior counsel answered in the negative.[157]
[157]Appeal transcript T1-11 lines 1-19.
I would be reluctant to take such a step. First, it was not sought below, and eschewed in this Court. Therefore there was no exploration of the issue or the relevant authorities, and whether any such “duty” is engaged. Secondly, the passage in Georginis v Kastrati speaks of established “tax fraud or evasion”. As explained earlier, the findings here stop short of that, and the reason why the returns were in the form they were (having been prepared by accountants) was not explored. It is possible that the circumstances would fall short of evasion of fraud. That being so, there is no need to address the question of whether this Court should do so.
Disposition of the appeal
For the reasons set out above I would allow the appeal only to the extent of substituting the correct interest figure for interest on past economic loss. I propose the following orders:
1.Allow the appeal to the extent of awarding $16,824.10 for interest on past economic loss instead of $19,545.
2.Set aside the judgment entered on 3 June 2016 and substitute judgment for $458,528.10.
3.Otherwise dismiss the appeal.
4.The appellants are to pay the respondent’s costs, of and incidental to the appeal, to be assessed on the standard basis.
MULLINS J: I agree with Morrison JA.
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