Sharp v Ord

[1993] QCA 72

IN THE COURT OF APPEAL	[1993] QCA 072
SUPREME COURT OF QUEENSLAND

Appeal No. 188 of 1992

Brisbane

[FAI v. Sharp]

BETWEEN

DEREK SHARP

(Plaintiff) Respondent

- and -

GERALDINE CATHERINE ORD

(Defendant)

- and

FAI GENERAL INSURANCE CO. LTD.

(Defendant by

Election) Appellant

The President

Mr Justice McPherson

Judgment delivered 11.03.93
Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED. "THE CROSS APPLICATION BY THE RESPONDENT/PLAINTIFF AS TO THE ADDITION TO THE TRIAL JUDGMENT OF THE SUM OF $2,633.60 IN RESPECT OF THE WORKERS' COMPENSATION PAYMENT BE ALLOWED AND JUDGMENT BE GIVEN FOR THE RESPONDENT/PLAINTIFF AGAINST THE APPELLANT/DEFENDANT BY ELECTION IN THE SUM OF $137,290.31. FURTHER, THERE BE NO ORDER AS TO THE COSTS OF THIS CROSS APPLICATION."

CATCHWORDS:	DAMAGES - Personal Injury - Whether damages for past and future economic loss excessive - Plaintiff about to retire and start own business.
Counsel:	Mr K. Fleming Q.C. for the appellant Mr S.C. Williams Q.C., with him Mr A.J. Williams Q.C. for the respondent
Solicitors:	Messrs. Baker Johnson and Partners for the appellant Messrs. Phillips and Lowes as town agents for Messrs. Trilby Misso and Company for the respondent
Hearing Date(s):	09/03/93

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 188 of 1992

Brisbane

Before The President
Mr Justice McPherson

[FAI v. Sharp]

BETWEEN

DEREK SHARP

(Plaintiff) Respondent

- and -

GERALDINE CATHERINE ORD

(Defendant)

- and

FAI GENERAL INSURANCE CO. LTD.

(Defendant by

Election) Appellant

REASONS FOR JUDGMENT - THE COURT

Delivered the 11th day of March, 1993

This is an appeal in relation to the quantum of damages
awarded to the respondent in respect of injuries which he
sustained in a motor vehicle accident on 2nd October, 1990.
It was argued for the appellant that the amounts assessed
in respect of past and future economic loss were excessive

and that the judgment was therefore unsustainable because

other components were also high.

The respondent was 63 when he was injured and 65 at the date of trial, 7 August 1992. Despite his age, he was fit and active prior to his injury and had given notice of retirement from his paid employment at the end of 1990. His intention was to start his own business to exploit a marketing opportunity which he had observed in the course of his work. Although he had done little specific research and made few approaches, he had carried out preliminary costings and was mature and immensely experienced, and was satisfied that he would earn at least as much in his own business venture as he did in his comparatively senior employed position. In that position, his income was approximately $37,500.00 per year gross, plus free use of a car, which was valued at approximately $5,000.00 per year, tax free.

Although it would have been necessary for the respondent to sell each year a large number of sports shirts, the item which he intended to have manufactured in his own business, the trial judge made findings in favour of the respondent. He said:

"The plaintiff born on 21 July 1927 was employed on 2 October 1990 by Freedman and Co. Pty. Ltd., clothing manufacturers, as its operations manager, though he intended resigning in November 1990 in order to go into business for himself. Apart from naval service between 1943 and 1947, the plaintiff has spent his whole working life in the clothing industry after obtaining appropriate university qualifications in the United Kingdom. I accept: that the plaintiff knew what he was doing when he notified Freedmans in mid 1990 of his intention to leave, that he had seen an opening in the manufacturing/retailing sports clothing field, that he would have taken advantage of that opening, that the return to him from his own business would have equalled the remuneration he was receiving from Freedmans and he would have enjoyed that income for five years or so."

The appellant did not challenge the finding that the plaintiff would have earned income for approximately 5 years from the date of the accident but for his injuries, and accepted that there was no evidence that, had he wished to do so, the plaintiff could not have continued as an employee for that period. Nor was there any challenge to the finding that the respondent was "rendered quite unfit to work" by the accident. In assessing economic loss, the trial judge said:

"Formerly working as an operations manager in the clothing industry prior to injury, he was unable to cope with such employment after the accident and had to leave on 21 December 1990. From that period up to the present, and allowing for contingencies, I accept that the plaintiff would have received $40,781.50, from which must be deducted $700 actually earnt."

The figure of $40,781.50 was taken from exhibit 9, a schedule which, under the heading "Past Economic Loss", provided as follows:

"1. 3 October 1990 to 5 November 1990

= 4½ weeks at $507
= $2,281.50

2.    1 January 1991 to 7 August 1992

= 77 weeks at a minimum of $500
per week
= $38,500.00

Less income earned $ 700.00 ---------- $40,081.00 ---------- ."

Turning then to future economic loss, the trial judge

said:

"The Plaintiff has suffered a diminution of his earning capacity through his inability to sit and move and concentrate. I have accepted that he lost about five years income and on the whole I think an award for the future is appropriate at $70,000."

The Court was informed that three and one-third years (the difference between five years and the period of economic loss prior to trial) at $500.00 per week produced an amount of approximately $80,000.00, not the $70,000.00 awarded.
The essence of the appellant's case can be taken from paragraph 7 of its supplementary written submission, which was in the following terms:

"The combined award of $110,781.00 for loss of earning capacity reflected no satisfactory discounting for what was only a loss of chance, not properly investigated by the plaintiff, not pursued to start promptly and where it was entirely dependent upon others purchasing his shirts."

There was, of course, some discounting involved in the exercise undertaken by the trial judge; for example in starting with a base figure of $500.00 per week and, in the calculation of future economic loss further discounting from $80,000.00 to $70,000.00. The real burden of the appellant's complaint was that the discounting was insufficient because, in its contention, the respondent's business venture involved risk.

However, little attempt was made to establish the extent of that risk and no evidence was called to dispute the respondent's assessment of his prospects. It was open to the trial judge to accept what the respondent said and to hold that the respondent had correctly determined that the proposed business would be successful.

The exercise carried out by the trial judge was within the proper exercise of his discretion and, accordingly, the appeal must be dismissed with costs to be taxed.