Jenkin,Trevor Robert & Ors trading as Calomba Transport v Muir, Steven Paul

[1982] FCA 110

‘ I N	THE	FEDERAL	COURT	OF	AUSTRALIA	)
NORTHERN TERRITORY	DISTRICT	)	N.T.	No.	G . 2 7 of	1 9 8 1
REGISTRY	)
)

GENERAL D I V I S I O N )

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN

TERRITORY OF-A~RALIA

BETWEEN :

TREVOR OBERT J E N K I N , I R A

JOHN JENKIN and DORRIS

MURIEL JENKIN t r a d i n g as

C a l o m b a Transport A p p e l l a n t s

(Defendan t s )

and

STEVEN	PAUL	MUIR	R e s p o n d e n t
(Plaintiff)

CORAM:	Northrop, T o o h e y and McGregor JJ.
NORTHROP	J . ,

TOOHEY J. and	REASONS	FOR	JUDGMENT	4	J U N E	1 9 8 2 .
McGREGOR J.

T h e appe ! l l a n t s appeal from a j u d g m e n ,t of the Supreme

C o u r t of t h e Northern T e r r i t o r y of A u s t r a l i a g iven on 16 O c t o b e r

1 9 8 1 and whlch awarded t o t h e respondent	$ 1 5 1 , 1 7 7 . 1 7	damages	agalnst
t h e appel lan ts w i t h costs	t o be	taxed.	T h e learned t r i a l Judge

calculated the a m o u n t of those d a m a g e s as f o l l o w s :

“ G e n e r a l d a m a g e s f o r i m p a l r m e n t of w o r k i n g

capacity

(1) d u r i n g t o t a l lncapac i ty 9 , 0 0 0 . 0 0

( 2 ) from 1 O c t o b e r 1 9 7 9 t o date 1 0 , 0 0 0 . 0 0

( 3 ) for t h e f u t u r e 9 5 , 0 0 0 . 0 0

f i l l o w m c e f o r f u t u r e s u r q e r y 3 , 0 0 0 . 0 0

General damages fo r p a i n and

s u f f e r i n g and lo s s of amenities 3 0 , 0 0 0 . 0 0

. . 2 . .

"Special damages 4 , 1 7 7 . 1 7

$ 1 5 1 , 1 7 7 . 1 7 "

The appeal 1s l i m l t e d t o t h e quantum of damages.

Durlng the course of submlsslons senior counsel for the

a p p e l l a n t s l imited h i s s u b m l s s l o n t o t h e items included under

the heading "General damages for impalrment of worklng capaci ty" .

The f m d i n g s of f a c t made by t h e t r i a l Judge were

not cha l lenged . On 22 February 1 9 7 9 t he r e sponden t su f f e red

l n ] u r l e s l n a road acc lden t i n c l r cums tances In wh ich the

a p p e l l a n t s a d m i t t e d l l a b i l i t y . The respondent i s now 34 y e a r s

of	age and al	though born	in	England,	has	l ived	In Austral ia	s lnce
November	1 9 7 4 .	H i s work	h i s t o r y	i s set o u t	i n	t h e	r e a s o n s	f o r
judgment	of	t h e t r l a l Judge.	In	1 9 7 7	he	galned	a	r i g g e r ' s
l	icence and	towards	the end of	1 9 7 7	he decided	t o work	on	h l s
own	account	as	a r igg lng	con t r ac to r	i n	Darwln .	He	1s a person

of resource and energy and the t r ia l Judge accepted h ls ev idence .

By February 1 9 7 9 h i s b u s i n e s s was becoming e s t a b l i s h e d a n d h l s

f i n a n c i a l p o s i t i o n was Improving. He d i d a l o t of t h e p h y s i c a l

work h i m s e l f w h l c h r e q u l r e d c o n s i d e r a b l e a g i l l t y , t o l e r a n c e t o

hard work a n d t h e a b l l l t y t o work long hours. The l e a r n e d t r i a l

Judge said:

" I t 1s n o t p o s s l b l e upon t h e e v ~ d e n c e t o a s s e s s

t h e p l a j n t l f f ' s a v e r a g e income from 111s b u s m e s s

a t t h e tlme o f h l s acc iden t no r can the g ross o r

n e t Income he would have der lved dur lng the

pe r lod of t o t a l l n c a p a c l t y ( L 2 February 1 9 7 9 t o

1 October 1 9 7 9 ) be c a l c u l a t e d . "

The d e t a i l s o€ t he In ju ry su f fe red - by t h e respondent

need	not	be	set ou t .	I t i s s u f f l c i e n t t o	s a y t h a t he was	t o t a l l y
. . 3 . .

l n c a p a c l t a t c d f o r the elght rrcnths from 2 2 February 1 9 7 9 t o

1 October 1 9 7 9 . T h e r e a f t e r t h e learned t r i a l Judge found:

"Were he employed a s a r l g g e r c a r r y l n g o u t

I

normal dut ies , I f i n d t h a t he would be unable

t o r e t a l n s u c h employment. On t h e l a b o u r

market he would have no prospects of ob ta in ing

work a s a r l g g e r . H e i s f i t f o r some bench

work but It is c l ea r wha teve r t a sk h e under takes

wh ich p l aces s t r a ln on h i s l e f t k n e e , h e w i l l

s u f f e r f o r it a t t h e end of the day. He has

t h u s l o s t t h e c a p a c i t y t o	work	as	a	g e n e r a l
r l g g e r ,	a	s k i l l and	t rade he developed	through

h l s own	m i t i a t l v e and hard	work."
When the respondent	commenced h i s own	buslness he

engaged m wire s p l i c i n g as an a n c l l l a r y a c t l v l t y t o e a r n income.

When he was a b l e t o r e t u r n t o work a f t e r t h e a c c i d e n t h e c o n c e n t r a t e d

f o r some time on wire s p l i c i n g and he employed a p e r s o n t o a s s i s t

him I n t h a t work since, because of h i s i n j u r i e s , h e was unable

t o do	It	a l l h i m s e l f .	I n i t i a l l y h e p a i d	t h a t	employee	about
$300.00	p e r week,	and	t h e r e a f t e r on	an	Income-sharing	arrangement

which t h e l ea rned t r ia l Judge sa id he could not fu l ly unders tand .

T h e respondent i s t h e s o l e p r o p r i e t o r of h i s b u s m e s s a n d t h e

t r i a l Judge said:

"I h a v e n o r e l i a b l e o r d e t a i l e d e v i d e n c e of t h e

accounts of the bus iness for the year ended

30 June 1 9 8 1 . The cop ie s o f p rev lous r e tu rns

( t a x a t l o n r e t u r n s ) , t h e g r o u p c e r t i f i c a t e a n d

a s ses smen t s a re of l i m i t e d v a l u e e s p e c i a l l y

a s it i s c l e a r t h a t f o r some y e a r s t h e p l a i n t i f f ' s

t a x r e t u r n s were not subml t ted ."

H l s Honour then contlnued:

"As f a r as I can ~ u d g e t h e p l a i n t i f f ' s b u s i n e s s

i s progress ing ... He is d ivers i fy ing , working

on s t ruc tu ra l e r ec t ion , p l ayground equ lpmen t

( rope l adders and n e t s ) and wire s p l i c l n g . I

a c c e p t t h e f a c t t h a t h i s i n a b i l i t y t o work

a s a r l g g e r n e c e s s i t a t e s t h e employment of

s u b s t i t u t e l a b o u r b u t I am unable to approach

. . d . .

the matter on the basls of the detailed
calculations urged by the plalntiff's
counsel In his submlsslons. The fact of

the matter is that the data 1s insufficient."

Hls Honour then made comments relating to the fact that the

lnabillty of the respondent to do much of thework hlmself would

be productive of a continuing loss, but as tlme passed his

responslbillties as a contractor, planner, employer of labour and

purchaser of materlals would have made inroads into	the time he
could spend on actlve rigging work.	He also found:

"...that success depends upon the efficiency

of labour In this type of busmess and there

is no substltute for a man working for

himself. I accept the plaintiff's evldence that when one employs a rigger (a hlgh risk occupatlon) the costs of compulsory insurance

add materlally to overall costs. A worklng proprletor can make his personal insurance arrangements more cheaply."

His Honour then concluded that the	assessment of general damages
for impalrment of earning capacity must	be a matter of judgment.
He continued:

"To strike a weekly loss figure, or to

attempt to asses6 the loss to date based

on evidence of past payments to riggers
and the like	1s unreliable as the

consequential 'advantages' to the plaintlff

- and there must be some - cannot be assessed."

During the period of total incapaclty the trial Judge

assessed the respondent's	net average loss at the rate of $325
per week and after allowing	for the contingencies of the industry

he allowed the sum of $ 9 , 0 0 0 . Although not conceding this item, senior counsel for the appellants did not seriously challenge that amount. In all the clrcumstances that aeount is reasonable.

. . 5 . .

r

- 5 - b

H i s Honour

then cont inued:

"For impairment of working capacity and

consequen t i a l loss of earnings from

1 October 1 9 7 9 u n t l l t h e p r e s e n t time

- s l i g h t l y I n e x c e s s o f two y e a r s

I a l low $ 1 0 , 0 0 0 ...

A s t o t h e f u t u r e I t ake t he v i ew on

t h e p r o b a b l l l t i e s t h a t h e d e v e l o p m e n t

o f o s t e o a r t h r i t i s will s h o r t e n t h e

p l a l n t i f f ' s working l i f e by a few yea r s .

Discomfort may be c h e c k e d o r a l l e v i a t e d

by the su rqe ry M r . F ry advises bu t

o s t e o a r t h r l t l s w i l l p rog res s . I t 1s

u n l l k e l y I f i n d t h a t t h e p l a i n t i f f

w i l l u n d e r g o a r t h r o p l a s t v o r a r t h r o -

d e s l s . The p l a i n t i f f h a s l o s t t h e

f l e x i b i l i t y h i s p h y s i c a l f i t n e s s and

i n i t i a t l v e s combined t o o f f e r b e € o r e h i s

acc iden t . I a s s e s s t h e p l a i n t i f f ' s

g e n e r a l damages fo r fu tu re economic

l o s s i n t h e sum of $ 9 5 , 0 0 0 . I make

an allowance of $ 3 , 0 0 0 f o r what I f i n d t o

be the p robab le c o s t s and l o s s a s s o c i a t e d

w l t h a l l e v l a t l n g	surgery ."
S e n i o r c o u n s e l f o r	t h e a p p e l l a n t s s u b m i t t e d t h a t

t h e r e was no ev idence to suppor t the items of l o s s a s s e s s e d a t

$ 1 0 , 0 0 0 and $ 9 5 , 0 0 0 r e s p e c t i v e l y .

The ludgment under appeal was g i v e n b e f o r e t h e High

Court publ ished i t s reasons in Todorovic v . Waller ( 1 9 8 1 ) 56

A . L . J . R . 5 9 . Wl thout making re ference to the d i scuss ions

a p p e a r i n g t h e r e i n r e l a t i n g t o t h e method of c a l c u l a t i n g damages

i n c a s e s i n whlch a p l a l n t l f f , by r e a s o n o f h i s i n ~ u r i e s , h a s

s u f f e r e d a loss o r I m p a i r m e n t o f h l s c a p a c i t y t o e a r n wages I n

t h e f u t u r e it i s s a l u t a r y t o r e f e r t o what was s a i d by Glbbs C . J .

and	Wllson	J. a t pp.61-62:
"Cer ta ln fundamenta l p r lnc lp les are so well
e s t a b l i s h e d t h a t it 1s unnecessary to c i t e
a u t h o r i t i e s i n s u p p o r t of them. I n t h e
f i r s t p l a c e , a p l a l n t i f f who has been injured
by the negl igence of the defendant should be

. . 6 . .

"awarded such a sum of money a s w l l l , a s

n e a r l y as p o s s i b l e , p u t him I n t h e same

p o s i t l o n as i f he had not sus ta ined the

i n ~ u r i e s .	S e c o n d l y ,	damages	f o r one	cause
of ac t ion	m u s t	be	recovered once and	forever,

and ( in the absence of any s ta tu tory exception)

must be awarded as a lump sum; t h e c o u r t

cannot order	a	d e f e n d a n t t o	make	p e r l o d l c
payments t o	t h e	p l a l n t i f f .	T h i r d l y ,	t h e

cour t has no conce rn wl th the	manner	i n	which
t h e p l a i n t i f f u s e s t h e	sum	awarded	t o him;

t h e p l a i n t i f f i s f r e e t o d o w h a t h e l l k e s w l t h

It. Four th ly , the burden l les on t h e p l a l n t l f f

t o p r o v e	t h e l n j u r y o r	loss	f o r which	he	seeks
damages.

Although the a m of t h e cour t in awardlng

damages 1s t o make good t o t h e p l a l n t l f f , so

f a r as money can do , t he loss which he has

s u f f e r e d , It is obv ious tha t It is imposslble

t o a s s e s s damages f o r p a l n a n d s u f f e r i n g and

loss of amenlt ies of l i f e by any process of

a r l t h m e t i c a l c a l c u l a t i o n . It may be less

obvlous, but i s no less c e r t a i n , t h a t t h e

assessment of damages for future pecuniary loss

r e s u l t l n g f rom personal in jur ies can never be

a mere matter of mathematics. It 1s t r u e t h a t

a s t h e assessment of	damages	has	become	more
s o p h i s t i c a t e d , c a l c u l a t i o n s a r e	made	i n	an	attempt

t o a c h i e v e g r e a t e r p r e c i s i o n . Such c a l c u l a t i o n s

a f a l se appea rance of accuracy.

may sometlmes give

Some of t h e f l g u r e s on which they are based are

t h e r e s u l t of e s t l m a t e o r s p e c u l a t l o n . I n t h e

case of loss of earn ing capac i ty It is necessary

t o compare what t h e p l a i n t i f f m i g h t h a v e e a r n e d i f

he had no t su f f e red the in lu ry wi th wha t he i s

l i k e l y t o e a r n i n h i s i n l u r e d c o n d l t i o n . I n many

cases t h l s means t h a t t h e c o u r t h a s t o e n g a g e i n

' a d o u b l e e x e r c l s e I n t h e a r t of prophesylng ' :

Paul v. Rendell (19811, 55 A.L.J.R. 3 7 1 , - a t ~ p . 3 7 2 .

Of course	In	some cases o f s e r l o u s i n j u r y	- -	it w l l l
be	p o s s i b l e t o s a y t h a t	t h e p l a l n t l f f	i s	probably

capab le o f ea rn ing no th ing In t he fu tu re . However,

I n no case can the re be any s o l i d b a s i s on whlch

to de te rmme what t h e p l a i n t l f f would have earned

If h e had not r e c e i v e d t h e i n ~ u r l e s i n r e spec t o f

which	he	sues .	A c t u a r i a l	t a b l e s w i l l show t h e
average	number	of	years which	w l l l b e l i v e d a f t e r

a c e r t a l n a g e by t h o s e a l l v e a t t h a t a g e , b u t w i l l

n o t show t h a t It i s p r o b a b l e t h a t t h e p l a i n t i f f ,

even	i f	i n good	h e a l t h ,	would	have	conformed	t o t h e
average. No evidence	can	poss	ib	ly	ind ica te	whether	J

t h e p l a l n t l f f ,	had	he	not been	inlured,	would	have	'	\ I
I	t

remained	i n good	hea l th ,	and	cont	lnued	to	be
employed	a t any	p a r t i c u l a r	r a t e	o	f	e a r n l n g s .	F o r
these	r easons ,	damages	fo r	manc ia l	loss	l i k e l y	t

r e s u l t t o f rom personal ln jury ' can on ly an be ;

" ' e s t i m a t e , o f t e n a very rough estimate, of

t h e p r e s e n t v a l u e o f h i s	prospective	loss ' :
Br l ty sh Transpor t	Commission b.	Gourley,

T 1 9 5 6 ) A.C. 1 8 5 , a t p .212, per L o r d Reld.

Ultimately, the process must a lways be one

o f judgment ra ther than ca lcu la t lon ."

In t he p re sen t ca se s en io r counse l fo r t h e a p p e l l a n t s

s u b m i t t e d t h a t t h e r e was no evidence t o suppor t t he cha l l enged

heads of loss. He r e l i e d s t r o n g l y on the v lews expressed by

the Cour t of Appeal i n Ashc ro f t v . Cur t in ( 1 9 7 1 ) 1 W.L.R. 1 7 3 1 .

In	adopt ing	a	ph rase appea r lng	In	tha t	r epor t , counse l con tended
t h a t on	a	cons ide ra t ion o f	t he r easons fo r	j udgmen t	of	t h e t r i a l

Judge, the amountsof $ 1 0 , 0 0 0 and $ 9 5 , 0 0 0 had been "plucked out

of t h e a i r " a n d , a s I n Ashorof t v . Cur t in the appea l should be

allowed and a t t h e most very moderate sums should be s u b s t l t u t e d

t h e r e f o r , p a r t i c u l a r l y s l n c e t h e e v i d e n c e d l s c l o s e d t h a t t h e

r e sponden t ' s bus lness was i n c r e a s i n g I ts p r o f l t a b i l l t y y e a r

by year .

Counse l for the respondent re fer red t o a s p e c t s of

t h e evidence not contained m t h e reasons for judgment of the

tr ial Judge. In substance the business being conducted by t h e

respondent was t h a t of h i r ing h lmsel f out a s a n lndependent

c o n t r a c t o r r i g g e r a n d where necessary employmg o ther people to

do t h e work wlth hlm.	He had h i s	r l g g e r ' s	l i c e n c e a n d	I f	work
r equ i r ed	more	labour	than he could	himself	supply he engaged

o t h e r p e r s o n s	t o a s s l s t	h im.	Those	persons	dld	not	need	t o
have	a	r i g g e r ' s	l l c e n c e	p r o v l d e d	t h e	respondent	was	p resen t

a t t h e s i t e whzle t h e r l g g l n g work was being performed. A t t h e

. I

tlme	of	the hear ing	the	respondent	was	I n f a c t	employing	f o u r	'	,	.
:	Y
L

men, none of whom had a r i g g e r ' s l i c e n c e . If he had been able

t o do the work of a r q g e r he would not have needed t o employ

t h e f o u r t h man but would have done t h a t work h imsel f . L i k e w l s e ,

s imilar consideral lonsappl ied concernlng the wire s p l i c l n g , b u t

t h l s a s p e c t o f h i s b u s i n e s s was d e c l i n l n g . I n t h e f l n a n c i a l

year 1978-79 the respondent was u n a b l e t o work for four months .

I n t h e f l n a n c i a l y e a r 1379-80 he was a b l e t o work f o r e l g h t months

only commencing 1 October 1 9 7 9 .	During	those	elght	months	he
paid approximately	$ 7 , 5 0 0	t o men	t o do work	tha t no rma l ly	h e

would have done hlmself. I n t h e financial year 1 9 8 0 - 8 1 he pald men

approxlmately $ 1 1 , 6 0 0 f o r work that normally he would have done

h i m s e l f . F o r	t h e	s i x	weeks	1 J u l y	1 9 8 1 t o mid-August	( t h e d a t e
of	t h e hear ing) he pa id	men	approximately	$ 1 , 6 0 0	f o r work	t h a t

normally he would have done himself. A t t h e time of t h e h e a r i n g

t h e r a t e o f pay f o r a r i g g e r was $6 .00 per hour for casua l work ,

bu t the respondent was paying $ 8 . 0 0 per hour.

On these f lgu res , t he r e sponden t pa id wages of

approxlmately $ 2 0 , 7 0 0 d u r i n g t h e p e r l o d 1 October 1 9 7 9 t o t h e

d a t e o f h e a r l n g t o g e t work done that normally he would have

done h lmsel f bu t t ecause o f h i s in jur ies w a s incapable of doing.

I t is t r u e t h a t d u r l n g t h a t p e r l o d t h e n e t p r o f i t s o f h l s b u s m e s s

were inc reas ing bu t t ha t does no t nega te the lo s s su f fe red by hlm

r e s u l t l n g f r o m h i s i n c a p a c l t y t o p e r f o r m t h e work h imsel f . Likewlsc '

it is t r u e t h a t he was f r e e t o p e r f o r m o t h e r a c t i v i t i e s c o n n e c t e d

w i t h h i s b u s i n e s s b u t n e v e r t h e l e s s h a d t o b e on s i t e while

r i g g i n g work was bemg done. I n a l l t h e c i rcumstances the

determinat ion of $ 1 0 , 0 0 0 a s damages f o r t h e p e r i o d c a n n o t be

s a i d t o be excesslve.

Llkewise with respect to the damages for future

economlc loss.	It 1s unusual for riggers to work as riggers
after reachlng flfty years of age.	The respondent was conducting

an expandmg buslness.	To some extent the wire splicing work	was
decreasing but the rigglng work was	expandmg.	He would in the

future be required to employ a man to do rigging work which

normally he would have done himself. On the assumption that he
paid that man at the rate of $6.00 per hour on the average of forty
hours a week for forty weeks of the year, wages would amount to
$9,600 per annum. This ignores the requirement of any overtime

work and the additlonal costs associated with the employment of

other people.	That estimate is conslstent with what had occurred
during the period	1 October 1 9 7 9 to the date of hearing.

During the appeal the Court admitted as evldence an

actuarial calculatlon based on a male born on 30 November 1 9 4 7 ,

the date of birth of the respondent, an interest rate of 3 % per anntlM

and mortality tables. On that calculatlon the present value of

an annuity of $1.00 per week commencing on	28 May 1 9 8 2 and ceasing
on the male attaining the age of slxty-five years or prior death
is $985.	That sum 1s over-generous in that It extends to age

sixty-flve. But in any event, having regard to the princlples

stated in Todorovic and maklng allowances for discounts It cannot

be sald that In all the clrcumstances the allowance of $95 ,000
for damages for the future was excessive. Llkewise, the lncreaslng
profltabllity of the respondent’s business does not detract from

the loss suffered by him resulting from his incapacity to perform

i

the work of a rlgger, especially If at some future datc he is

obliged to seek work as an employee. Ultimately, the process of 4

determining.the quantum of damages is one of judgment, not of ‘i

The learne d trial Judge did not have the benefit of

the opinlons expressed in Todorovic. H l s statement of reasons

supportlng his determination of the challenged damages may have

been meagre. Nevertheless, on further analysis and In the light of Todorovic the Court is not satlsfled that the damages awarded were excessive. Accordlngly, the appeal is dlsmissed with costs