Broome Helicopter Services Pty Ltd v Anderson
[2014] WASCA 12
•16 JANUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROOME HELICOPTER SERVICES PTY LTD -v- ANDERSON [2014] WASCA 12
CORAM: PULLIN JA
NEWNES JA
MURPHY JA
HEARD: 4 OCTOBER 2013
DELIVERED : 16 JANUARY 2014
FILE NO/S: CACV 141 of 2012
BETWEEN: BROOME HELICOPTER SERVICES PTY LTD
Appellant
AND
JENNIFER ANDERSON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
Citation :ANDERSON -v- BROOME HELICOPTER SERVICES PTY LTD [2012] WADC 158
File No :CIV 1381 of 2010
Catchwords:
Damages - Personal injury - Calculation of past and future economic loss - Whether primary judge erred in calculation of amount of annual leave respondent would have taken - Whether discount should have been made for contingencies in calculation of past economic loss
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D R Clyne
Respondent: Mr T Lampropoulos SC
Solicitors:
Appellant: Squire Sanders
Respondent: Bradley Bayly Legal
Case(s) referred to in judgment(s):
Anderson v Broome Helicopter Services Pty Ltd [2012] WADC 158
Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Montemaggiori v Wilson [2011] WASCA 177
Paul v Rendell (1981) 34 ALR 569
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
JUDGMENT OF THE COURT: This is an appeal against a decision of Stavrianou DCJ in the District Court in which his Honour awarded the respondent damages in the sum of $448,378 for personal injury (Anderson v Broome Helicopter Services Pty Ltd [2012] WADC 158). The appellant appeals against the assessments of past and future economic loss. Liability was not in issue.
The accident
The respondent's injuries were sustained on 12 May 2008 when the helicopter in which she and her husband were passengers crashed when coming in to land at Imintji, about 220 km east of Derby in the north‑west of Western Australia. At the time of the accident the respondent was the assistant manager and her husband was the manager of the store at Imintji, having commenced work there in April 2007. She had trained as a hairdresser and previously worked as such for much of her working life.
Following the accident, the respondent was conveyed to Derby Hospital where she remained overnight before being taken to Broome Hospital. The respondent and her husband remained in Broome for a few days and spent a night in Derby before returning to the Imintji store. The respondent said she found, however, that due to her injuries she was unable to continue in her employment at the store and, in September 2008, she and her husband left and returned to their home on the Gold Coast in Queensland. The respondent has not been engaged in any form of employment since.
The respondent brought an action for damages for personal injury against the appellant, the operator of the helicopter. Liability was admitted and the action proceeded to an assessment of damages.
The findings of the primary judge
The primary judge found that in the accident the respondent sustained, among other things, injuries to the lumbar, cervical and thoracic spine, and to both shoulders [49], [70]. His Honour accepted the evidence of Dr Ker, a consultant physician, that as a consequence of her injuries the respondent had pain and stiffness at the cervicothoracic junction, a degree of lower back pain with a curtailed capacity to bend and lift, and curtailment of her left shoulder movement. His Honour also accepted Dr Ker's opinion that the respondent was not fit, and there was no likelihood that in the foreseeable future she would be fit, to return to work as an assistant store manager in a role involving manual handling, or to return to work in her previous occupation as a hairdresser because of the requirement to have her upper limbs in an elevated position [80], [88], [109]. His Honour found that the appellant was restricted in her capacity to engage in any employment involving lifting and bending activities [109]. His Honour found that her 'capacity to work as a hairdresser and as an assistant manager [had] been destroyed by the crash' [144].
In relation to the appellant's employment intentions, the primary judge noted that the Anderson's employment at the store was for a period of one year commencing on 31 October 2007, with an option to extend that for a further two year period. The Andersons were regarded by their employer as competent employees and they had given no intimation to their employer that they wished to leave Imintji. His Honour accepted the respondent's evidence that she and her husband had no set plans as to retirement age. He found that but for the accident the respondent would have continued in her employment at the store [105].
None of the above findings are challenged by the appellant on the appeal.
Although the judge said that the respondent did not contend that she was totally unfit for any form of employment [44], the respondent's pleaded case was that she was permanently incapacitated from carrying out all forms of employment to which she was suited by education, training and experience.
In his assessment of the respondent's loss of earning capacity, the primary judge proceeded on the basis that the respondent would have taken 12 weeks leave per year, of which eight would be unpaid. He found that at the time of the accident the respondent's remuneration was $39,000 per annum plus a housing allowance of $5,200 and superannuation of 9%. There was in addition an agreed food allowance of $5,200. The primary judge was satisfied that the respondent and her husband would have secured a renewal of their employment at the store at the end of the one year term.
For the purposes of calculating past economic loss from 1 October 2008, the primary judge adopted the figure of $682 proposed by the respondent. That figure was taken from supplementary written submissions filed on behalf of the respondent, referred to by his Honour at [124]. In those submissions, it was explained that the figure was derived from exhibit 15, a list of the weekly compensation payments made by the appellant's workers' compensation insurer, which indicated that the respondent's earnings at the time of the accident were $1,175.25 per week including allowances. From that figure had been deducted the housing and meal allowance and tax, giving a figure of $806 per week. As the assessment was based on a 44 working week year, that figure was averaged over 52 weeks to produce a weekly figure of $682 for a 52 week year.
For the 214 weeks between 1 October 2008 and 8 November 2012, that weekly sum led to a total amount of $145,948. To that amount his Honour added superannuation of $14,009 and the sum of $5,000 for the period between the date of the accident and the end of September 2008 when the respondent left the store. The total award for past loss of earning capacity was therefore $164,957.
In relation to future loss of earning capacity, his Honour rejected a submission by the appellant that there should be no award for future loss of earning capacity or, alternatively, a modest award of $15,000 ‑ $20,000. The primary judge observed that whilst the burden of the medical evidence indicated that the respondent had some retained earning capacity, no specific employment to which she was suited, and which was within her capacity, had been identified. There was no evidence as to the availability of work which she would be able to do or the remuneration that might be received. His Honour considered that having regard to the respondent's age, experience, qualifications and unsuccessful post‑accident attempts to resume employment, it was not appropriate to make any reduction for retained earning capacity [142], [145].
His Honour found that the respondent's loss of future earning capacity should be based on a net income of $750 per week, being the then current net rate for her previous occupation of assistant manager, for a 44 week working year. His Honour considered that it should be calculated on a further 5.5 years of working life, to a retirement age of 65 years. Applying the relevant multiplier, the total amount was $183,872.
His Honour allowed a discount for contingencies of 20%, leading to an award for future loss of earning capacity of $147,097.
The primary judge awarded global sums of $20,000 for past and future loss of employment benefits, $5,000 for past gratuitous services, $5,000 for future gratuitous services, and $7,500 for future medical expenses [155], [158], [160]. A sum of $10,600 was allowed, as agreed, for Fox v Wood damages (Fox v Wood [1981] HCA 41; (1981) 148 CLR 438), and $19,805, as agreed, for special damages [161] ‑ [162].
The final award made by his Honour was as follows:
General damages
$55,000
Past loss of earning capacity
$150,948
Past loss of superannuation
$14,009
Past and future loss of employment benefits
$20,000
Future loss of earning capacity
$147,097
Future loss of superannuation
$13,419
Past and future gratuitous services
$10,000
Future treatment
$7,500
Fox v Wood
$10,600
Special damages
$19,805
Total
$448,378
Grounds of appeal
The appellant relied upon the following grounds of appeal:
1.The learned trial judge erred in law in failing to provide any or any proper reasons as to his calculation of past and future economic loss.
2.Further and alternatively, the learned trial judge erred in law in respect of his calculations of both past and future economic loss in that;
(a)he used a figure of $682 net per week as to the basis of his calculation of past economic loss which was a figure far greater than the respondent had earned in her prior employment and had no proper evidentiary basis;
(b)the calculation of both past and future loss is based on a figure of 44 weeks work per annum including four weeks paid leave which is a far greater period than the respondent had worked prior to the accident and is without any evidentiary support and ignores the evidence as to the duration of the working year applicable to the respondent’s employment.
3.The learned trial judge erred in law in failing to make any discount or adjustment for retained capacity or contingencies in the calculation of past economic loss.
The disposition of the appeal
Before turning to the specific grounds of appeal, it is important to note that, as Deane and Dawson JJ pointed out in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 343, the assessment of damages for personal injuries in an action for negligence is not an exact science. The process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case. In a similar vein, in Paul v Rendell (1981) 34 ALR 569 the Privy Council observed:
The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured (571).
The High Court pointed out in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 413, that damages for financial loss likely to result from personal injury can only be an estimate, often a very rough estimate, of the present value of the prospective loss. Such an assessment has many of the characteristics of a discretionary judgment: Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336, 381.
It is convenient to start with grounds 2 and 3.
Ground 2
The contention that there was no evidentiary basis for the finding that the respondent's past and future loss of earnings was an amount of $682 per week was (correctly in our view) abandoned by the appellant's counsel on the hearing of the appeal (appeal ts 34). It was evident that the figure of $682 was derived from exhibit 15 and the basis upon which the figure of $682 per week had been arrived at was explained in the respondent's supplementary submissions on damages. It is clear from the primary judge's reasons at [124] that he accepted the respondent's submissions on that point.
The focus of the appellant's attack was on the second element of the equation, the number of weeks of the year in respect of which the respondent would have been entitled to remuneration. It was submitted that the effect of the evidence was that the respondent and her husband had worked, and intended to work, only during the 'dry season' and to take leave for the duration of the 'wet season'. That meant that each year they would take leave of some five months, of which they would be entitled to be paid for four weeks. Counsel for the appellant referred in that connection to the evidence of Mr Gorey, the chief executive officer of the respondent's employer, the Winun Ngari Aboriginal Corporation, that the dry season 'usually ran from March or April through to November or December' (trial ts 151). Considerable emphasis was also placed by the appellant's counsel on the fact that the respondent and her husband had started work at the Imintji store in April 2007, around the start of the dry season, and that the respondent had taken leave of some five and a half months from November 2007 to April 2008, during the wet season. The appellant's counsel pointed out that the latter leave was the only historical information available.
Accordingly, it was submitted, the primary judge had erred in calculating the respondent's loss on the basis that she would have taken eight weeks unpaid leave and four weeks paid leave per annum, resulting in remuneration for 44 weeks per annum. Counsel for the appellant argued that his Honour should have found that the respondent would have taken 12 weeks unpaid leave and four weeks paid leave per annum, so that she would have been paid for only 36 weeks per annum.
We do not accept that submission. It is evident from the respondent's contract of employment that the respondent and her husband were employed for the full year, not on a seasonal basis. It is also clear on the evidence that the store had to remain open all year round for the benefit of the local community, although there were few tourists during the wet season (trial ts 151) and for certain parts of the wet season it was a 'one man operation' (trial ts 122). Mr Gorey's evidence was that the respondent and her husband were required to be at the store throughout the dry season but they could take their leave, and any other time off, during the wet season (trial ts 151).
The uncontroverted evidence of the respondent and her husband was that they had been offered employment at the store from November 2006 (at or about the commencement of the wet season) but did not take it up until April 2007 because Mr Anderson had existing work commitments which he had to complete.
In her evidence, the respondent said that she had taken five and a half months leave from November 2007 to April 2008 because her daughter was getting married and the respondent had to look after her granddaughter, but that 'normally it's three months [leave]' per annum (trial ts 68 ‑ 69). Mr Anderson's evidence was that the wedding took place at the beginning of March 2008 but he had returned to Imintji in early to mid‑February 2008 (trial ts 107).
The respondent also gave evidence that she and her husband had been asked to work in the wet season that year but were unable to do so because of the wedding. The respondent said that they had intended to take a three month European holiday in the following wet season but that they had hoped to 'do the wet season following that as well as the dry season' (trial ts 101). Mr Anderson's evidence was that he was 'enthusiastic' about working in the wet season (trial ts 109).
The primary judge found the respondent and her husband to be reliable and truthful witnesses [44] ‑ [45].
On the evidence, it was clearly open to the primary judge to find that the respondent would ordinarily have taken up to a total of three months leave (one month paid and two months unpaid) each year, resulting in 44 weeks remuneration per annum. No error has been shown in his Honour's calculation of the respondent's past and future loss of earnings.
We would dismiss this ground of appeal.
Ground 3
Under this ground, it was contended by the appellant that the primary judge erred in failing to make any deduction for retained earning capacity or contingencies in the calculation of the respondent's past loss of earnings. As it crystallised in the course of argument on the appeal, the appellant's complaint was based on the respondent's evidence that since the accident she had done some hairdressing on a casual basis when visiting camping sites on trips in the company of her husband. That evidence, it was submitted, revealed that the respondent had a capacity to earn income which the primary judge had failed to take into account.
At a threshold level, the difficulty with the submission is that it is, in substance, inconsistent with the unchallenged finding of fact that her capacity to work as a hairdresser had been 'destroyed by the crash'.
The relevant evidence upon which the appellant relied concerned a blog written by the respondent's husband concerning a visit they had made to a caravan park south of Darwin on 11 August 2010. In that blog, the respondent's husband had referred to the respondent 'doing her hairdressing after putting up signs in the caravan park'. The respondent was cross‑examined about the blog. Her evidence was that her husband had erected a sign at the campsite advertising her availability to do hairdressing, as a result of which she had done two haircuts, not consecutively (trial ts 80, 93 ‑ 94). The respondent rejected a suggestion that she would be capable of doing part‑time hairdressing from home (trial ts 93).
There is no merit in this ground of appeal. When the respondent left Imintji in September 2008, following the accident, she was 55 years of age and at the time of judgment in the action she was 59 years old. The finding by the primary judge that the respondent was not fit to return to her pre‑accident employment was not challenged, and as already noted, the finding that she was not fit to return to her earlier occupation as a hairdresser was also not challenged. The appellant did not adduce any evidence of other employment opportunities which were reasonably open to the respondent: see Montemaggiori v Wilson [2011] WASCA 177 [33].
On the evidence, it was clearly open to his Honour to find that having regard to the respondent's age, experience, qualifications and unsuccessful post‑accident attempts to resume employment, it was not appropriate to make any reduction for retained earning capacity in assessing the respondent's past loss of earnings. Evidence to the effect that since the accident the respondent had done the odd haircut at a camping site falls a long way short of establishing the respondent's capacity to earn any regular or significant income from hairdressing, much less of establishing any capacity to obtain any form of employment in that, or any other, field.
We would dismiss this ground.
Ground 1
We do not accept that the primary judge failed to provide proper reasons for his calculation of past and future economic loss. It is evident from what we have said that the reasons for the findings in question sufficiently appear from his Honour's reasons for judgment. The appellant could be in no reasonable doubt as to the grounds for those findings.
We would dismiss this ground.
Conclusion
The appeal should be dismissed.
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