Gifford v Strang Patrick Stevedoring Pty Ltd

[2007] NSWCA 50

New South Wales

Court of Appeal

CITATION:

Gifford v Strang Patrick Stevedoring Pty Ltd [2007] NSWCA 50

HEARING DATE(S):

13 February 2007

 
JUDGMENT DATE: 

19 March 2007

JUDGMENT OF:

Ipp JA at 1; Basten JA at 2; Handley AJA at 3

DECISION:

CA 40176 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $61,880 for general damages of $60,000 and out of pocket expenses together with interest on the past component of general damages of $50,000 at the rate of 2 percent per annum for 14 years.; CA 40174 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $109,627.86 for general damages of $80,000, economic loss of $20,000 and out of pocket expenses together with interest at the rate of 2 percent per annum on the past component of the general damages of $70,000 for 14 years.; CA 40175 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $83,183 for general damages of $57,500 and economic loss of $25,683 together with interest at the rate of 2 percent per annum on the general damages for five years and at the rate of 4 percent per annum thereafter, and interest on the damages for past economic loss of $4,128 at 9 percent per annum from 30 June 2003.

CATCHWORDS:

DAMAGES – nervous shock – children of deceased worker – not governed by Workers Compensation Act 1987 - NERVOUS SHOCK – children of deceased worker – damages – not governed by Workers Compensation Act 1987

LEGISLATION CITED:

Workers Compensation Act 1987

CASES CITED:

Baker v Graham (1961) 106 CLR 340
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269
Hunter Area Health Service v Marchlewski [2000] NSWCA 294
Kimberly-Clarke Australia Pty Ltd v Thompson [2006] NSWCA 264
Marinko v Masri [2000] Aust Torts Rep 64-201

PARTIES:

CA 40174 of 2005
Matthew Gifford (Appellant)
Strang Patrick Stevedoring Pty Ltd (Respondent)

CA 40175 of 2005
Kelly Gifford (Appellant)
Strang Patrick Stevedoring Pty Ltd (Respondent)

CA 40176 of 2005
Darren Gifford (Appellant)
Strang Patrick Stevedoring Pty Ltd (Respondent)

FILE NUMBER(S):

CA 40174 of 2005; CA 40175 of 2005; CA 40176 of 2005

COUNSEL:

B Gross QC (Appellants)
H Kelly SC/T McKenzie (Respondents)

SOLICITORS:

G H Healey & Co (Appellants)
Gillis Delaney Brown (Respondents)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 7309 of 1997; DC 7323 of 1997; DC 7419 of 1997
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	17 December 2004

CA 40174 of 2005
CA 40175 of 2005
CA 40176 of 2005

IPP JA
BASTEN JA
HANDLEY AJA

19 MARCH 2007

MATTHEW GIFFORD v STRANG PATRICK STEVEDORING PTY LTD

KELLY GIFFORD v STRANG PATRICK STEVEDORING PTY LTD

DARREN GIFFORD v STRANG PATRICK STEVEDORING PTY LTD

CATCHWORDS

DAMAGES – nervous shock – children of deceased worker – not governed by Workers Compensation Act 1987

NERVOUS SHOCK – children of deceased worker – damages – not governed by Workers Compensation Act 1987

FACTS

The death of a worker on 14 June 1990 gave rise to nervous shock claims by his three children which were upheld by the High Court: (2003) 214 CLR 269. The High Court remitted the assessment of damages to the District Court. The trial judge held that ss 151G and 151H of the Workers Compensation Act 1987 applied and on this basis only awarded damages for non-economic loss. On appeal HELD: (1) Sections 151G and 151H did not apply to the assessment of the children’s damages as they were suing neither as workers nor as dependants of the deceased worker: Kimberly-Clarke Australia Pty Ltd v Thompson [2006] NSWCA 264 applied; (2) The children were entitled to awards of general damages; (3) Two of the children were entitled to awards for economic loss.

ORDERS

Darren Gifford v Strang Patrick Stevedoring Pty Ltd
CA 40176 of 2005

(1) Appeal allowed with costs.

(2) Cross-appeal dismissed with costs.

(3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $61,880 for general damages of $60,000 and out of pocket expenses together with interest on the past component of general damages of $50,000 at the rate of 2 percent per annum for 14 years.

Matthew Gifford v Strang Patrick Stevedoring Pty Ltd
CA 40174 of 2005

(1) Appeal allowed with costs.

(2) Cross-appeal dismissed with costs.

(3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $109,627.86 for general damages of $80,000, economic loss of $20,000 and out of pocket expenses together with interest at the rate of 2 percent per annum on the past component of the general damages of $70,000 for 14 years.

Kelly Gifford v Strang Patrick Stevedoring Pty Ltd
CA 40175 of 2005

(1) Appeal allowed with costs.

(2) Cross-appeal dismissed with costs.

(3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $83,183 for general damages of $57,500 and economic loss of $25,683 together with interest at the rate of 2 percent per annum on the general damages for five years and at the rate of 4 percent per annum thereafter, and interest on the damages for past economic loss of $4,128 at 9 percent per annum from 30 June 2003.

CA 40174 of 2005
CA 40175 of 2005
CA 40176 of 2005

IPP JA
BASTEN JA
HANDLEY AJA

19 MARCH 2007

MATTHEW GIFFORD v STRANG PATRICK STEVEDORING PTY LTD

KELLY GIFFORD v STRANG PATRICK STEVEDORING PTY LTD

DARREN GIFFORD v STRANG PATRICK STEVEDORING PTY LTD

Judgment

1 IPP JA: I agree with Handley AJA.

2 BASTEN JA: I agree with the orders proposed by Handley AJA and with his Honour’s reasons.

3 HANDLEY AJA: The shocking death of Barry Gifford in an industrial accident at Darling Harbour on 14 June 1990 gave rise to claims for damages which have reached this Court for the second time. The claims for nervous shock by his three children, the present appellants, failed in the District Court and this Court: (2001) 51 NSWLR 606, but their appeals to the High Court were successful: (2003) 214 CLR 269. The remaining issues were remitted for trial to the District Court.

4 The new trial was conducted before Puckeridge DCJ who, in December 2004, in a reserved decision, entered judgment for Darren, the eldest son, for $51,384.36; for Matthew, the other son, for $59,132.22; and for Kelly, the daughter, for $39,504.36. The plaintiffs have appealed seeking increased awards and the defendant has cross-appealed.

5 The Judge held that the assessment of the plaintiffs’ damages was governed by ss 151G and 151H of the Workers Compensation Act 1987. Applying s 151G he declined to award Darren and Matthew general damages which he assessed at $60,000, and Kelly her general damages he assessed at $57,500.

6 Mr Gross QC for the appellants submitted that ss 151G and 151H did not apply to these claims which were not brought by an injured worker in respect of his own injuries, or by the dependants of a deceased worker. Damages were to be assessed at common law.

7 This Court and the High Court in the earlier stages of this litigation held that s 151P applied to claims for nervous shock by persons who were not workers or the dependants of deceased workers. The Judge held that because s 151P applied ss 151G and 151H, in the same Division of the Act (Div 3 Pt 5), also applied. Mr Gross relied on the decision of this Court in Kimberly-Clarke Australia Pty Ltd v Thompson [2006] NSWCA 264 where Basten JA, with the concurrence of Ipp JA, held that ss 151G and 151H did not apply to nervous shock claims brought by others as a result of the death of a worker (paras [1], [57]-[66]). Bryson JA agreed in the result but for different reasons without expressing any concluded view on the reasons of Basten JA.

8 The decision is directly in point and on the morning of the hearing Mr Heydon Kelly SC, for the respondent, conceded error on the part of the Judge in this respect, and the Court did not have to call on Mr Gross on this question. However other issues arose on each appeal and cross-appeal, and it will be convenient if the case of each appellant is considered separately.

Darren

9 Mr Gross abandoned most of his other grounds of appeal and limited this appellant’s case to claims for $60,000 for general damages as assessed by the judge, with interest on the past component at 2 per cent, together with the claim for out of pocket expenses. He submitted that interest should be awarded on a past component of $40,000, but in my judgment the appropriate figure, nearly 17 years after the father’s death, is $50,000. Mr Kelly acknowledged that an award on this basis would be appropriate.

10 This appeal will be allowed and the cross-appeal dismissed. The formal orders appear at the end of these reasons.

Matthew

11 Matthew was 14 when his father died. The Judge found that he suffered an abnormal grief reaction which caused a depressive psychological condition. He finished his schooling at the end of Year 10 and went to work on the Sydney Ferries, initially as a deckhand, later as a ticket collector at Circular Quay. He started drinking alcohol at the age of 15 or 16 and was soon drinking to excess in an attempt to cope with his depression. About 12 months after his father died he began crying at night.

12 He first sought medical help from his general practitioner Dr Cusbert in August 1992 when he was still crying at night. He also developed psoriasis, an inflammatory condition of his face which flared up when he was emotionally stressed. Dr Cusbert referred him to Dr Kossard, a dermatologist, for advice and treatment.

13 This appellant continued to suffer from depression and in 1997 he consulted Dr Foo, who had taken over Dr Cusbert’s practice, who referred him to Dr Wong, a psychiatrist. The latter saw him 11 times up to 21 August that year and three times in February-March 1998. He received counselling and Dr Wong later prescribed anti-depressant medication which the plaintiff took for a while. Dr Wong advised him to stop drinking alcohol. He gave this evidence in chief about his anti-depressant medication and Dr Wong’s advice (black 1/63-4):

“It sought of brought me up. Then he said to me this last time he seen me he put me on them again. He said ‘I want you to stop drinking’. I stopped drinking for four weeks and then I got back on the drink again. Then he said ‘I want to give you these other tablets as well but after 7 days I want you to promise stop taking them’. I thought I don’t want to stop drinking and taking pills. I stopped taking the anti-depressant I didn’t bother getting the prescription. That’s when I stopped seeing him.”

14 The Judge accepted the appellant’s evidence that his psoriasis flared up when he was emotionally stressed and found that it was affected by his depressive condition. He also found that his abnormal continuing grieving at the loss of his father contributed to his depressive condition. He then made an important finding on which he based his decision to limit his award of damages to a closed period ending in 1998. He said (red 82):

“I consider that the treatment afforded to the plaintiff by his local medical practitioners and by Dr Wong was appropriate treatment for his psychological condition and for his psoriasis condition. I find that the plaintiff made a voluntary and deliberate decision not to accept the reasonable recommendation of Dr Wong to stop drinking. I find that such deliberate and voluntary decision by the plaintiff prevented him from resolving his grief and accepting the reality of his father’s death.”

15 Mr Gross challenged this finding on a number of grounds. He said that the appellant had not been cross-examined to suggest that his decision to continue drinking and give up anti-depressant medication was unreasonable. In any event on the medical evidence accepted by the Judge the appellant’s depression was part of his psychiatric illness and a contributing cause of his alcohol dependence. Consequently his decision to continue drinking could not be characterised as deliberate and voluntary and the Judge erred in finding that it was.

16 These submissions must be accepted. There is no doubt, on the medical evidence accepted by the Judge, that the appellant’s psychological problems continued after 1998. He was still abusing alcohol and on the evidence of his de facto partner Samantha Knight, which corroborated his histories to various doctors (blue 1/90, 152, 153), he continued to cry at night.

17 The Court must therefore reassess the appellant’s damages. It is now nearly 17 years since his father’s death and the appellant is 31 or thereabouts. He continues to hold down a full-time job with Sydney Ferries. The end of this long drawn out litigation should afford him a measure of closure. He must also be prepared to take some responsibility for his life and his choices. In all the circumstances an award of $80,000 for general damages would be appropriate with a past component of $70,000. Interest on the past component should be awarded at the rate of 2 percent per annum for 14 years.

18 There remains the question of economic loss. There was no evidence that the appellant had suffered any economic loss up to the date of the re-trial and the Judge’s finding to this effect was not challenged. But for his drinking problems there would also be no question of awarding damages for future economic loss. However Dr Foo reported that blood tests for the plaintiff in June 2003 revealed grossly impaired liver function compatible with excessive alcohol intake (1/151), and he warned that “cirrhosis of liver, brain damage and other long-term complications of alcohol abuse may well be on the horizon if he continues to drink like this”. He concluded by saying that the plaintiff enjoys his work and “so far his illnesses have no significant impact on his work”.

19 This is the only medical evidence about the prospects of future economic loss. In the circumstances it would not be reasonable to award more than a modest cushion for the future which I would assess at $20,000. The appeal will be allowed and the cross-appeal dismissed. The formal orders appear at the end of these reasons.

Kelly

20 Kelly was 17 when her father died. She had obtained her HSC prior to his death and deferred university while she did a business course. She then decided not to go to university and drifted from job to job, working in hotels, and then for a year with the AMP as a clerk (black 116). In August 1993 she went to England returning in April 1994 (116). In 1997 she commenced a full-time science course at the University of New South Wales and worked one night a week and at weekends. After graduating with Honours she worked as a sleep technician on sleep apnoea research at the Prince of Wales Hospital (111, 118-9). She moved to Townsville in 2002 where she worked as technician on sleep apnoea research at the Mater Hospital and on research in neuroscience at the University (119). She started a part-time pharmacy degree at Townsville in 2004 (112, 120-1).

21 The Judge said that there was nothing in her oral evidence on 18 February 2004 which showed that she had a pathological grief reaction. Moreover at that stage the bulk of the medical evidence did not support such a finding.

22 On 19 February Mrs Dymock, a life long friend of Kelly’s, and a former neighbour, gave evidence. She said that Kelly had been a happy-go-lucky and easygoing person who became withdrawn and very unhappy after her father’s death. She also became bulimic and anorexic.

23 This evidence was outside the appellant’s particulars and the hearing was adjourned until June to allow the respondent to meet the new case. On 22 June Kelly said in evidence that following the death of her father she began to eat more and induce vomiting after eating, and this continued for about four years. She did not tell her family but did tell Mrs Dymock. After four years her bulimic episodes tapered off and they stopped after five years. She said they stripped her of her confidence and she did not undertake further studies during that period.

24 The Judge accepted this evidence and found that the appellant suffered an abnormal grief reaction manifested by her bulimia. As a result she was unable to function normally and her tertiary studies were delayed. He was not satisfied that she continued to suffer from a demonstrable psychological condition after her bulimia ceased.

25 Dr Canaris and Professor Kennett referred to her personality changes after her father’s death. Dr Canaris said that the appellant remained “an emotionally constricted woman who had changed substantially in her personality since the death of her father”. He said this was common with individuals who had been traumatised or suffered from prolonged grief. The Judge considered that these changes did not establish that the appellant continued to suffer a demonstrable psychiatric condition.

26 The Judge assessed her general damages at $57,500 for the closed period. He made no award for out of pocket expenses and relying on s 151H he declined to make any award for economic loss.

27 Mr Gross submitted that the award for general damages was appellably inadequate because the Judge should not have limited his award to the closed period.

28 He also submitted that the Judge erred by not referring to Professor Kennett’s evidence that the appellant continued to suffer from a psychiatric illness even after her bulimia had ceased, and by failing to give adequate reasons for rejecting it.

29 The Judge did not overlook this part of the Professor’s evidence and referred to it at length (red 100-2, 105, 107). He rejected the Professor’s evidence when he expressly declined to find that the appellant continued to suffer from a psychiatric illness (red 107).

30 He gave adequate reasons for doing so which included reference to the evidence of Dr Canaris to the contrary (105), the appellant’s ability to cope with life demonstrated by her successful tertiary studies, and her evidence that her father’s death had “simply” put her four or five years behind (107). The finding that damages should only be awarded for the closed period cannot be disturbed.

31 Mr Gross also submitted that damages can be awarded for a personality change caused by a recognisable psychiatric illness which persists after recovery from that illness.

32 The basic principle is that a person who has not suffered an obvious physical injury may only recover damages for exposure to or knowledge of a shocking event if it causes a recognisable psychiatric injury (Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 276, 203, 302, 304).

33 A personality change as such is not a recognisable psychiatric injury, and there was no evidence from any psychiatrist that it was. Indeed Mr Gross did not argue that it was.

34 Mr Gross was not able to cite authority in support of his submission, but nor was Mr Kelly able to cite authority against it.

35 In some circumstances damages consequent upon a compensable injury are recoverable although they would not be recoverable if there was no such injury. A familiar example is the recoverability of pure economic loss consequent upon physical injuries to person or property.

36 In my judgment a different rule applies in cases of psychiatric injury, although the decisions do not deal directly with the present question.

37 In Marinko v Masri [2000] Aust Torts Rep 64-201, 208-209 this Court affirmed the established principle that normal grief and anguish following the death of a loved one are not compensable, and held that they do not become compensable when the victim of nervous shock suffers additional and abnormal grief and anguish constituting a recognisable psychiatric illness.

38 In such a case there must be an apportionment between the compensable and non-compensable components although the difficulty of such an apportionment was recognised (above at 64-208).

39 The decision on this point was cited with approval by Mason P, writing for the Court, in Hunter Area Health Service v Marchlewski [2000] NSWCA 294 para [116]. Accordingly this submission must be rejected.

40 The Judge rejected the claim of this appellant for economic loss because the threshold in s 151H had not been met. For reasons already given he was in error, and the appellant is entitled to an appropriate award. No question of credibility arises and this Court can make the necessary assessment.

41 This presents a number of difficulties. The appellant had deferred starting her science course before her father died. Her intention had been to start the following year (black 107, 110, 126). She was not then thinking of studying pharmacy (126). She eventually commenced her four years course in 1997 graduating at the end of 2000. She did not commence her pharmacy course until 2004.

42 She said that her father’s death had the effect of postponing her tertiary studies for five years (167). She said (112):

“I believe that that was my loss – I’ve lost a lot of years in my life of getting on and doing what I should be doing … It will take me another four or five years time to be where I actually want to be, whereas I believe had my father not died, I probably would have been a lot further along. I could be working now and maybe have … stayed home and spent some time with my child and then go back to my profession, whereas now I have to study and have my child go through that.”

43 She lost five years because of her father’s death but she lost other years for other reasons. There was a four year gap between her science degree and the start of her pharmacy course for which the defendant is not responsible.

44 The appellant’s probable career path, had she not suffered psychiatric injury, is affected by a number of uncertainties. She did not think of taking pharmacy until some years after she graduated in science. If her father had not been killed would she have made that decision? And if so when? When she gave evidence in February and June 2004 she was only in the first year of a four year course, but her science degree demonstrates that she has the capacity to qualify. She had a son in October 2003 (120); and was not planning to have other children (120). Her partner worked as a fitness conditioner for a football club in Townsville (111) under a contract due to expire in 2006 (125). He intended to look after the child once the appellant could work as a pharmacist (112).

45 The appellant’s plans involve a number of contingencies, the continuation of the relationship, no more children, no contract for her partner beyond 2007, and the successful completion of her pharmacy course in four years.

46 When she finished her science degree she was, as she said, only qualified for research (111), for which she was paid “probably just the same as a bar job” (118). To her the degree meant nothing (126). “It got me a piece of paper. It got me into pharmacy, maybe I will do something in pharmacy but that’s it” (126). This evidence means that she has no direct claim for economic loss based on the delayed start to her science degree. Her claim must be based on the delayed start to her pharmacy course and the delay in the enhancement of her earning capacity when she qualifies.

47 The most favourable assumptions for her are that if she had not suffered psychiatric injury she would have begun her science course in 1991, graduated at the end of 1994, and commenced her pharmacy course four years later in 1999, qualifying at the end of 2002. On that basis she would have started to earn as a pharmacist in 2003 whereas, at best, she will only be able to do so in 2008. Thus her claim at the date of judgment in December 2004 was for 2003 and 2004 for past loss, and 2005 , 2006 and 2007 for future loss.

48 Her gross earnings in 2003 as a first year pharmacist under the Federal Award until 11 June would have been $16,447, and for the rest of the year $19,916. Her gross earnings in 2004 as a second year pharmacist until 11 June would have been $17,846, and for the rest of the year $21,626. Her gross earnings as an “experienced pharmacist” in 2005 until 21 July would have been $22,688 and for the balance of the year $19,603. The Court was not provided with the Award figures for 2006.

49 Thus her gross award earnings for 2003 would have been $36,363, for 2004 $39,472 and 2005 $42,290. The award increase for an experienced pharmacist on 21 July 2005 was 2 percent and a similar increase in July 2006 would have resulted in gross earnings for that year of $43,136, and for the following year of $46,693.

50 There is no evidence of the tax that would be deducted from earnings at this level but the appellant’s written submissions at the trial were based on an average rate of tax of 35 percent and I will adopt this figure. On this basis the appellant’s after tax earnings as a pharmacist for the 2003, 2004, 2005, 2006 and 2007 calendar years would have been $23,635, $25,656, $27,488, $28,038, and $30,350.

51 Instead of pursuing her pharmacy course between 1999 and 2001 as she may have done had she not suffered psychiatric injury the appellant was finishing her science course and in 2002 was back in the workforce.

52 The evidence includes the appellant’s tax assessments for the 1992 to 1997 years. There was no documentary evidence of her later earnings. She said that in 1998 her hourly rate as a casual in a hotel bar was $18-19 an hour (118), the same rate she received as a medical technician (120). This represents gross earnings of $760 for a 40 hour week but there is no evidence that she was able to work 40 hours a week as a casual.

53 The 1996 year is the last year she worked for the whole year for which documentary evidence is available. Her net earnings after tax were $18,289 or $352 a week. On the basis of an hourly rate of $18 she was working on average 24 hours a week, and her average tax rate was 18 percent.

54 The Court may be permitted to know that wage inflation during the years from 1996 onwards has been at least 2 percent per annum. On the basis of annual increases of 2 percent the appellant’s probable actual net earnings after tax had she continued to work as before would have been for 1997 $18,654, 1998 $19,027, 1999 $19,407, 2000 $19,795, 2001 $20,191, 2002 $20,595, 2003 $21,007 and 2004 $21,427. These can only be rough estimates.

55 The appellant said in cross-examination that in the year ended 30 June 2000 she earned $29,248 working for Sydney Ferries (120). In 2002 she and her partner moved to Townsville (119). There was no other evidence, except for the most general kind, about her earnings for the years from 1998 to 2003.

56 Her estimated probable earnings, had she remained in the workforce in 1999, would have been $19,407: para [54].

57 Her actual earnings in 2000 working for Sydney Ferries were $29,248. I will assume this was the net figure after tax as only that figure is relevant, and neither counsel attempted to establish that it was the gross salary. Her estimated actual earnings in the workforce during 2001 and 2002 were $20,191 and $20,595: para [54].

58 If the appellant had pursued her pharmacy course during the years 1998-2001 she could not have received those earnings. Had she done this she would probably have qualified in 2002 and received earnings as a pharmacist in the 2003-2007 years. She is not entitled to damages for these five years without bringing to account her actual and probable earnings for the corresponding five years. This provides the following basis for an assessment:

Lost earnings as pharmacist	Actual earnings in notional year	Difference
2003 - $23,535	1999 Year 1 - $19,407	$4,128
2004 - $25,656	2000 Year 2 - $29,248	No loss
2005 - $27,488	2001 Year 3 - $20,191	$7,297
2006 - $28,038	2002 Year 4 - $20,595	$7,443
2007 - $30,350	2003 First year pharmacist $23,535	$6,815
Total	$25,683

59 The Court has had to estimate the appellant’s actual earnings for the 1999, 2001, and 2002 years. Although the facts were within her knowledge there was no documentary evidence for these years and her oral evidence about them was vague and general. The Court has had to do the best it can. The appellant has lost five years of her pharmacy career but will be compensated for those years. On one view she has lost the last five years and not the first five but she was only 32 at the date of judgment (100) and an assessment of her loss 29 to 33 years ahead would be totally impracticable. No attempt was made at the trial to establish the basis for such an assessment.

60 On another view the appellant will suffer further loss each year during her career from 2008 until retirement because she will always be five years behind. An assessment on that basis would be extremely difficult, and again no attempt was made to establish a basis for it.

61 There are a number of contingencies affecting the provisional assessment outlined in para [58] which were referred to in para [45]. It would normally have been appropriate to discount the awards for past and future economic loss for those contingencies. I will compensate the appellant for any continuing losses after the fifth year by making no allowance for any of these contingencies, and by not discounting the damages for future economic loss for their notional early receipt.

62 The appellant tendered without objection a one page report from a Sydney pharmacist dated 23 June 2004 who said that it was “not unreasonable to expect an annual salary of $100,000”. The writer’s assumptions were not established. Was this the salary for a pharmacist in her first year? or only after some years experience? and if so how many? Presumably it was the salary before tax but there was no evidence of the amount of tax that would be payable on such a salary. This may be the salary in Sydney, but there was no evidence that it necessarily applied in Townsville. There was no evidence of over award payments for junior pharmacists. I am not prepared to treat this figure as relevant to the assessment of the appellant’s loss for the first five years after she would otherwise have qualified.

63 The appellant devoted some of her earning capacity during the 2004 year to the birth and nurture of her son. To that extent the impairment of her earning capacity was not productive of financial loss: Baker v Graham (1961) 106 CLR 340, 347. I would normally have only awarded her 50 percent of the loss for that year but because of her actual earnings with Sydney Ferries for the corresponding year there is no award for 2004 in any event.

64 The following orders should be made:

Darren Gifford v Strang Patrick Stevedoring Pty Ltd
CA 40176 of 2005

(1) Appeal allowed with costs.

(2) Cross-appeal dismissed with costs.

(3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $61,880 for general damages of $60,000 and out of pocket expenses together with interest on the past component of general damages of $50,000 at the rate of 2 percent per annum for 14 years.

Matthew Gifford v Strang Patrick Stevedoring Pty Ltd
CA 40174 of 2005

(1) Appeal allowed with costs.

(2) Cross-appeal dismissed with costs.

(3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $109,627.86 for general damages of $80,000, economic loss of $20,000 and out of pocket expenses together with interest at the rate of 2 percent per annum on the past component of the general damages of $70,000 for 14 years.

Kelly Gifford v Strang Patrick Stevedoring Pty Ltd
CA 40175 of 2005

(1) Appeal allowed with costs.

(2) Cross-appeal dismissed with costs.

(3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $83,183 for general damages of $57,500 and economic loss of $25,683 together with interest at the rate of 2 percent per annum on the general damages for five years and at the rate of 4 percent per annum thereafter, and interest on the damages for past economic loss of $4,128 at 9 percent per annum from 30 June 2003.

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