Malcolm Ecob and Marilyn Ecob t/as Black Swan Coffee Lounge v Deborah Wentworth-Shields

Malcolm Ecob and Marilyn Ecob, trading as Black Swan Coffee Lounge, appealed to the Court of Appeal of the ACT against an award of damages made by the Master to Deborah Wentworth-Shields. The dispute arose from personal injuries sustained by Ms Wentworth-Shields when an unsecured umbrella from the appellants' premises struck her. The appeal concerned the quantum of damages awarded, specifically for loss of earning capacity and future medical expenses, with the appellants arguing the amounts were excessive.

The court was required to determine whether the Master erred in his assessment of damages for the respondent's loss of earning capacity, considering the lack of demonstrable past economic loss and the speculative nature of future losses. Additionally, the court had to consider the appropriateness of the Master's award for future medical expenses, which was described as a "buffer" for potential ongoing costs. The central legal issue was whether the Master's approach to quantifying these damages, particularly the use of a global sum and hypothetical calculations, was legally sound or constituted an error of principle.

The majority of the Court of Appeal, comprising Crispin P and Gray J, dismissed the appeal. They reasoned that while the Master's method of calculating the loss of earning capacity by referencing a hypothetical weekly loss over a period was not the primary basis for the award, it served as a check on the global sum. They found that the Master had made clear findings regarding the respondent's reduced capacity to work in her existing business, the delay in planned expansion, and limitations on alternative employment. Despite the inherent difficulties in precise calculation, the court held that the Master had made a reasonable assessment based on the available evidence and that the appellants had failed to demonstrate any error of fact or law in the Master's approach. The award for future medical expenses was also upheld, with the court finding it fell within the Master's discretion.

Chief Justice Miles, while agreeing with the dismissal of the appeal regarding future medical expenses, dissented on the assessment of loss of earning capacity. He found the Master's award of $78,000 for this head of damage to be excessive, arguing that it was based on an inappropriate mathematical calculation of a hypothetical future loss rather than a "buffer" against possible loss. He concluded that the award should have been significantly reduced, proposing a reduction to $50,000. Despite this difference in reasoning, the majority decision meant the appeal was dismissed, and the appellants were ordered to pay the respondent's costs.