JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: PENE -v- MURPHY [2004] WASCA 103
CORAM: MILLER J
EM HEENAN J
LE MIERE J
HEARD: 19 APRIL 2004
DELIVERED : 20 MAY 2004
FILE NO/S: FUL 77 of 2003
BETWEEN: EDWARD CLAUDE PENE
Appellant (Plaintiff)
AND
KERRIN MURPHY
Respondent (Defendant)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
Citation Number : [2003] WADC 96
Catchwords:
Torts - Damages for personal injury - Appeal - Loss of past and future earning capacity - Proper basis for assessment - Whether principles in Bowen v Tutte applicable - Whether trial Judge erred in assessment of retained earning capacity - Whether proper approach to deduct figure for potential retained earning capacity from loss of earned capacity - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Damages varied by substituting award of $227,362
Category: B
Representation:
Counsel:
Appellant (Plaintiff) : Mr K S Pratt
Respondent (Defendant) : Mr B C Sierakowski
Solicitors:
Appellant (Plaintiff) : Kott Gunning
Respondent (Defendant) : Brian C Sierakowski
Case(s) referred to in judgment(s):
Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Bowen v Tutte (1990) Aust Torts Rep 81‑043
Bresatz v Przibilla (1962) 108 CLR 544
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
De Sales v Ingrilli (2000) 23 WAR 417
Foyster v Goynich [1984] WAR 80
Gamser v Nominal Defendant (1977) 136 CLR 145
Ghunaim v Bart [2004] NSWCA 28
Heather v Vita Pacific Ltd (1996) 6 Tas R 52
Jongen v CSR Ltd (1992) A Torts Rep 81‑192
Koeck v Persic (1996) A Torts Rep 81‑386
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235
Nolan v Hamersley Iron Pty Ltd (2000) 23 WAR 287
Roads and Traffic Authority v Cremona (2001) 35 MVR 190
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Struthers v Harris [1983] WAR 123
Thomas v O'Shea (1989) Aust Torts Rep 80‑251
Vandeloo v Waltons Ltd [1976] VR 77
Villaservil v Pickering (2001) 24 WAR 167
Western Australia v Watson [1990] WAR 248
Wilson v Peisley (1975) 7 ALR 571
Wright v Shire of Albany (1993) Aust Torts Rep 81‑239
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Case(s) also cited:
Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Dearman v Dearman (1908) 7 CLR 549
Devries & Anor v Australian National Railways Commissioner & Anor (1993) 177 CLR 472
Edwards v Noble (1971) 125 CLR 296
Eltin Ltd v Dowsett [2001] WASCA 101
Gronow v Gronow (1979) 144 CLR 513
Introvigne v Commonwealth of Australia & Ors (1980) 32 ALR…
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CaseChat Overview and Summary
The court was tasked with determining the appropriate discount to apply when considering contingencies or "vicissitudes" of life that might affect earning capacity. The principles for such calculations were outlined in Wynn v NSW Insurance Ministerial Corporation, where it was established that future economic loss must account for various possibilities that might otherwise affect earning capacity. The court examined whether the trial judge had appropriately considered these contingencies, such as unemployment, changes in industrial emphasis, and potential health issues, as well as the positive considerations that might have led to increased earnings. The court also looked into the evidence provided regarding the state of the labour market and the likely earnings in alternative occupations.
In its reasoning, the court found that the trial judge had not erred in taking into account the plaintiff's retained earning capacity by deducting a percentage from the total loss of earning capacity. The court emphasised that the evidence presented demonstrated that there were alternative employment opportunities available to the plaintiff within his residual working capacity. However, the court noted that the uncertainties associated with the prospect of work as a light process worker made it inappropriate to perform a precise arithmetical calculation as undertaken by the trial judge. The appeal was ultimately dismissed, affirming the trial judge's approach in assessing the damages.
The final orders of the court confirmed the dismissal of the appeal and upheld the trial judge's assessment of damages for personal injury, taking into account the plaintiff's retained earning capacity and the various contingencies and vicissitudes of life that might affect his future earning potential.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The principles upon which the contingencies or "vicissitudes" of life are properly to be taken into account are set out by Dawson, Toohey, Gaudron and Gummow JJ in Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497:"Calculation of future economic loss must take account of the various possibilities which might otherwise have affected earning capacity. The principle and the relevant considerations were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter as follows:'Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are superseded by new and different techniques, the onset and effect of automation and the mere daily vicissitudes of life are not adequately reflected by merely - and blindly - taking some percentage reduction of a sum which ignores them.'It is to be remembered that a discount for contingencies or 'vicissitudes' is to take account of matters which might otherwise adversely affect earning capacity and as Professor Luntz notes, death apart, 'sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of loss of income'. Positive considerations which might have resulted in advancement and increased earnings are also to be taken into account for, as Windeyer J pointed out in Bresatz v Przibilla, '[a]ll "contingencies" are not adverse: all "vicissitudes" are not harmful'. Finally, contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured, not by reference to the workforce generally." In this case the relevant contingencies and vicissitudes were that on Mr McCallum's view, the appellant would have been lucky to have stayed in his occupation as a boner for another 10 years; evidence revealed that 80 per cent of boners engaged at meat works are under 40 years of age; seasonal factors often cause closures of meat works and ill‑health generally may have caused difficulties for the appellant working throughout the balance of his working life. In addition, and perhaps most importantly, the appellant had a retained earning capacity which meant that he was at least capable of obtaining employment in other fields if that employment was available to him. Even then, the prospect of periods of unemployment was a factor to be considered in the mix leading to the ultimate calculation of the appropriate discount for (Wright v Shire of Albany (supra)). The respondent had discharged the evidentiary burden cast upon him of establishing that alternative employment opportunities were open to the appellant. There was evidence of the state of the labour market and the likely earnings which the appellant could earn in a range of occupations: Thomas v O'Shea (1989) Aust Torts Rep 80‑251 per Malcolm CJ and Kennedy J at 68‑701 ‑ 68 702. This was not a case where the Court had no evidence of the availability of employment within the appellant's residual working capacity or evidence of the amount which could be earned in such employment (Bowen v Tutte (supra) at 81‑043) but it was, in my view, a case where it was appropriate for the learned trial Judge to take account of the existence of the residual earning capacity by the deduction of a percentage amount from the figure calculated for total loss of earning capacity. In my view there were too many uncertainties associated with the prospect of work as a light process worker to enable the precise arithmetical calculation undertaken by the learned trial Judge to be performed.