Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Clifton & Ors v Lewis [2012] NSWCA 229
• Hearing dates: 21 June 2012
• Decision date: 30 July 2012
• Before: Beazley JA at [1]; Basten JA at [55]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: DAMAGES - Torts - Negligence - Personal injury - Non-economic loss - Trial judge assessed non-economic loss at 33 per cent of a most extreme case - Whether trial judge erred in assessment - Award of non-economic loss is an evaluative judgment - Trial judge did not take into account irrelevant considerations or wrongly assess medical evidence - No error in exercise of trial judge's discretion - Appeal dismissed.; DAMAGES - Torts - Negligence - Personal injury - Future economic loss - Onus on plaintiff to prove impact of injury on future earning capacity - Whether trial judge erred in assessment of future economic loss when plaintiff did not plead or particularise claim for loss based on advancement to operations supervisor - Case expanded at trial beyond that particularised - Trial judge was entitled on the evidence to assess plaintiff as person who would have advanced to Operations Manager position.; DAMAGES - Torts - Negligence - Personal injury - Future economic loss - Assessment of damages for future economic loss by way of buffer - Whether trial judge erred in assessment of buffer - Whether medical evidence must expressly state that earning capacity impaired - Evidence required to support finding that earning capacity impaired - Such finding to be made on all of the relevant evidence - No necessity for medical evidence to expressly state earning capacity impaired - Medical evidence consistent with plaintiff's evidence of extent of work incapacity - Trial judge did not err in assessment of buffer - Civil Liability Act 2002, s 13.
• Legislation Cited: Civil Liability Act 2002
• Cases Cited: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120; Dell v Dalton (1991) 23 NSWLR 528; Fegan (by her tutor Rozenauers) v Lane Cove House Pty Limited [2007] NSWCA 88; Graham v Baker [1961] HCA 48; 106 CLR 340; Jackson v Mazzafero [2012] NSWCA 170; Khan v Polyzois [2006] NSWCA 59; K-Mart Australia Ltd v McCann [2004] NSWCA 283; McCracken v Melbourne Storm Rugby League Football Club Limited & 2 Ors [2007] NSWCA 353; Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1; Penrith City Council v Parks [2004] NSWCA 2001; State of New South Wales v Zerafa [2005] NSWCA 187; State of NSW v Moss [2000] NSWCA 133; 54 NSWLR 536; Zorom Enterprises Pty Ltd v Zabow and Ors [2007] NSWCA 106
• Category: Principal judgment
• Parties: Alan Grant Clifton (First Appellant); Charlene Myree Usher (Second Appellant); Mathea Anne Usher (Third Appellant); Trent Andrew Usher (Fourth Appellant); Luke Anthony Usher (Fifth Appellant); Paul Christopher MacGregor (Sixth Appellant); Rodney James Ross (Seventh Appellant); Nicole Joanne Ross (Eighth Appellant); Jason Michael Lewis (Respondent)
• Representation: Counsel: R Cavanagh SC; D Morgan (Appellants); T Boyd; J Cairn (Respondent); Solicitors: Boyd House & Partners (Appellants); Herbert Weller (Respondent)
• File Number(s): 2008/318704
• Publication restriction: No

Decision under appeal

• Citation: Lewis v Clifton & Ors [2011] NSWDC 79
• Date of Decision: 2011-07-29 00:00:00
• Before: Elkaim DCJ
• File Number(s): 2008/318704

Judgment

1 BEAZLEY JA: This is an appeal from a decision of Elkaim DCJ in which his Honour awarded the respondent damages for economic loss resulting from injuries he sustained when assaulted in hotel premises. The appellants in partnership ran and operated the hotel and the first appellant was the licensee. The respondent's significant injury was to the common peroneal nerve in the right leg.

2 The appeal is against the quantum of the award of damages in respect of non-economic loss and in respect of future economic loss. The trial judge assessed non economic loss at 33 per cent of a most extreme case: see the Civil Liability Act 2002, s 16. His Honour awarded future economic loss in the sum of $120,000 by way of a buffer.

3 The appellants challenged these awards on the following bases:

(1) The award of damages for non-economic loss of 33 per cent of a most extreme case was manifestly excessive.

(2) There was no evidence to support an award of damages for future economic loss in the sum of $120,000, in circumstances where:

(a) the respondent adduced no evidence of past economic loss;

(b) the respondent had remained in full-time employment since the accident;

(c) there was no medical evidence that the respondent had suffered an interference with his earning capacity as a result of the injury; and

(d) there was no evidence that the respondent's injury was productive of financial loss.

(3) That the trial judge erred in assessing future economic loss on the basis that the respondent would become an Operations Manager in circumstances where that claim:

(a) was not pleaded;

(b) not particularised;

(c) not identified in counsel's opening to the trial judge; and

(d) not sought by the respondent in counsel's closing submissions to the trial judge.

4 The appellants contended that a proper award for non-economic loss was not more than 25 per cent of a most extreme case. Whilst the appellants accepted that an award for future economic loss by way of a buffer could be made under the Civil Liability Act, s 13, they submitted that his Honour's award of $120,000 was excessive and against principle: see Graham v Baker [1961] HCA 48; 106 CLR 340 at 347; Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1 at 21; McCracken v Melbourne Storm Rugby League Football Club Limited & 2 Ors [2007] NSWCA 353 at [73]. The appellants accepted that some award of damages for future economic loss was warranted, but submitted that the respondent had only established an entitlement to an award of an essentially token amount. They suggested an award in the sum of $20,000 was appropriate.

5 As the significant challenge to the award of future economic loss was based upon an alleged absence of evidence to support it, I propose to deal first with the respondent's evidence as to the effect that the injury had upon his boxing and his employment, before dealing with the medical evidence.

Boxing history

6 The respondent was an amateur boxer and sustained his injury in the early hours of the morning on 28 August 2005 following a win, earlier that evening, in an amateur boxing match at Forbes. Sometime after the match had concluded he had gone to the hotel, where others who had attended the match had gathered. He was assaulted in the toilets of the hotel, where he was hit and kicked severely by another patron. The respondent said that he was "clobbered"; that the assailant was "laying the boot in"; and "kicking into me as I was laying on the ground".

7 The respondent participated in one more boxing match a few months after the accident, which he lost. He explained that he had not undertaken his normal preparation for that match, as he could not do the necessary running training because of the pain in his leg from the injury. The appellants did not dispute this evidence. The respondent had continued to train his two sons and some other young boxers, but otherwise had to give up boxing. The coaching work was fairly limited and seemed to have comprised teaching proper boxing techniques and combinations and holding punching pads.

8 The respondent did not, in the end result, seek damages for economic loss as a result of being unable to pursue his boxing career. However, he sought to have that factor taken into account in the assessment of non-economic loss.

Employment history

9 At the time of the incident, the appellant was employed by Rocla Quarry as a quarry manager and was earning approximately $69,000 gross per annum. He remained in that employment, although in different locations, until he commenced employment with M Collins & Sons (Contractors) Pty Limited (Collins) in July 2008, again in the capacity of quarry manager. He was still in that employment at the time of the hearing in July 2011, at which time he was earning approximately $125,000 gross per annum. He was also entitled to a bonus of up to $20,000.

10 Apart from being absent from work for a week in February 2010 following surgery on 10 February 2010 to release his peroneal nerve, it appears that the respondent otherwise was absent from work for only a small number of days, due to his injury. However, there were occasions when he either arrived late to work or left early. This was the subject of specific evidence both as to its occurrence and as to the impact such absences were likely to have on his employment.

11 The respondent described the duties of a quarry manager as organising the daily production, the human resources requirements and the sales requirements for his employer. In undertaking these tasks, he was required to travel to various sites from Kurnell to Raymond Terrace, Calga and the Blue Mountains. His duties also involved physical activities such as rebuilding pumps, changing pipes, changing screens in the sand processing plant, climbing up and down ladders and working on dredgers, including repairing dredgers and dredge lines. The respondent said that at the time of the accident he was fit and able to carry out all those duties. He attributed this in part to the fact that he was "very fit" because of his amateur boxing activities.

12 The respondent stated that he had a lot of trouble at work following the accident, especially driving or operating machinery for any length of time. He also had difficulty with his leg, given the long period of driving between his home at Londonderry and his principal workplace at Kurnell. He said that the trip home in the afternoon would take up to two hours. He said that he was struggling to get through the days and would often leave work to get home a bit earlier "just to get a bit of relief".

13 In July 2006, the respondent was transferred to Cowra as quarry manager. The respondent said that whilst at Cowra, he experienced pain in his right leg to such an extent that sometimes he would have to go home early. He said that the more activity he did the worse his leg got. He would ask work colleagues to take over his tasks so that he could go home early. In July 2008, the respondent left his employment with Rocla Quarry at Cowra and commenced employment with Collins where he has remained.

14 The respondent described the operation in February 2010 as having taken a "bit of edge off the pain" but said that he continued to have a "duller" pain. However, in his description of the pain he was having as at the date of the hearing, he said that he still had "constant stabbing pain". He also said "the numbness and the burning sensation in [his] heel and ankle" remained. He had been prescribed a range of medication to deal with the pain, with little effect. He was no longer taking Panadol Osteo. He said that he was consuming alcohol "more and more often". He also said that, except for a "couple of months" after the accident when he felt some relief following the surgery, he believed his leg was "worse than what it was before", because he was in more pain than prior to undergoing surgery.

15 The respondent said that he was worried about his future employment because the pain in his leg was getting worse and he was not getting any relief. The main reason for his concern was that the driving to and from work aggravated the pain in his leg, as did the "running around" he had to do as part of his work at the quarry. He said that it was becoming more difficult for him to carry out his usual duties.

16 On 21 July 2010, the respondent was issued with a warning letter signed by his supervisor, Mr Mick Bugg, who was the Operations Manager of Collins. The letter drew the respondent's attention to the fact that since starting employment with Collins, he had "regularly taken time off work and left work early for private health issues concerning [his] right leg". The letter continued:

"Your continued employment as [Collins'] Quarry Production Manager is dependent on you improving your attendance record and being fit for regular duties."

17 In addition to the possible consequences to his employment foreshadowed in this letter, the respondent said that he did not know how long he would be able to keep driving to and from work in his current employment.

18 The respondent gave evidence that he had always planned to advance to an Operation Manager's level, which would involve overseeing various different quarries. He said he had always wanted to work his way through the ranks to that position. He had unsuccessfully applied for such a position with Boral Resources. He was cross-examined as to his desire "to do some more supervisory type things". He confirmed that he had always wanted to progress to operations and that he could do that work. The appellants relied upon this answer as evidence that the respondent had no impairment to carry out such work from the accident. In further cross-examination, the respondent said that the supervisory role would involve more driving.

19 Collins' Operations Manager, Mr Bugg, gave evidence. He said when the respondent commenced employment he presented himself as fit and well, but that he began taking time off to attend doctors and was leaving work early and coming in late. He said that as a result, he issued him with the letter of 21 July 2010. Mr Bugg was asked whether there had been any improvement in the respondent's work attendance following the letter. He responded that the respondent "may be [taking full days off] a little bit less", but that he was still leaving early and starting late. Mr Bugg said that was a continuing concern in respect of the respondent's continued employment with the company.

20 Mr Bugg said that he had no problems with respondent's work, ability, or knowledge. It is apparent from his evidence that he considered the respondent was a valuable employee. However, he said that the respondent was being paid a good salary to attend work and carry out his duties and that his concern, on behalf of the employer, was that was "not happening to the full". He added that if the respondent continued "at the current situation" he would issue him with another letter. He said it was then up to the respondent to address the problem or "then we move further with it".

21 Mr Bugg was cross-examined, apparently to establish that the respondent's employment was long-term and not in jeopardy due to his partial absences. Mr Bugg said that he would like to say that the respondent was "a long-term prospect for the company". He said, however, that if the respondent's injury was "an issue to be able to perform to his fullest then it's questionable". Mr Bugg was also asked whether he had cause to issue the respondent with another warning letter. He said that he had not, but had spoken to the respondent about his attendance. Mr Bugg also said that after the respondent's surgery, he still had "the odd day" off, but that it was "the early leaving and late starting" that was of concern. He reiterated that, "we pay [the respondent] a very good salary and [the respondent's] salary is not for six hours a day, five hours".

Medical evidence

22 There was no challenge to the medical evidence accepted by the trial judge, in the sense that there was no challenge to the medical diagnoses of the injury suffered by the respondent in the assault. The challenge was to his Honour's reliance upon the medical evidence in respect of his assessment of future economic loss in circumstances where the medical evidence did not state that the respondent was not capable of carrying out his present employment, or that there was any impairment of his working capacity. In my opinion, this submission misunderstands both the actual content of the medical evidence as well as what is required for a plaintiff to prove an interference with earning capacity.

23 The respondent attended his general practitioner, Dr Sipeli, the day after the assault. Dr Sipeli recorded "deep seated bruise over [right] peroneal muscles". In all, the respondent had three consultations with Dr Sipeli in the month following the assault. Thereafter he sought no further medical attention for his leg until August 2008, when he again attended Dr Sipeli, who recorded by way of history, "Still having problems [right] leg". Dr Sipeli arranged for the respondent to undergo various diagnostic procedures, none of which returned a positive diagnostic result.

24 On 15 December 2008, Dr Sipeli referred the respondent to Dr Abraham, a sports medicine specialist. He was then referred to various specialists until he came under the care of Dr Sundaraj, Associate Professor of Pain Medicine and Dr Coffey, Orthopaedic Surgeon.

25 Associate Professor Sundaraj, who saw the respondent on 1 October 2009, considered that he had injured a branch of his common peroneal nerve. In his report dated 2 October 2009, he stated that this had caused a "permanent change" and that the respondent would have "good and bad days".

26 Dr Coffey saw the respondent in December 2009, upon referral by Dr Abraham. In a clinical report dated 17 December 2009 addressed to the referring doctor, Dr Abraham, Dr Coffey said that the respondent's history was "fairly consistent with persistent superficial peroneal nerve impingement or entrapment". He said that "[t]here may be persistent injury to the nerve itself". He suggested surgery to release the "superficial branch of the peroneal nerve" and noted that while he had warned the respondent that if there had been "direct nerve injury then the surgery may not help him", the respondent had decided to proceed because he was "moderately disabled by the ongoing discomfort".

27 The respondent underwent surgery on 10 February 2010. Dr Coffey, in his report dated 19 February 2010, said that he "found evidence of nerve injury over a segment of 2 cm". Dr Coffey said that the respondent felt "improved on his pre-operative status" and that he expected "further improvements" for the respondent "over the next few months". On 30 March 2010, six weeks after surgery, Dr Coffey reported that the respondent had "a level of improvement". However, on 20 July 2010, Dr Abraham referred the respondent back to Dr Coffey because although he:

"... was going well after the operation ... with increased use of his legs, he has noticed increasing right leg pain with radiation up his proximal leg and parasthesia around his lateral malleolus and heel."

28 Dr Coffey reported on his final consultation with the respondent in a medico-legal report dated 30 November 2010 as follows:

"I last reviewed [the respondent] on the 2nd September 2010. This was 7 months post surgery. [The respondent] complained of persistent symptoms attributable to superficial peroneal nerve injury. He complained of dysesthesia and pain over the dorsum of the right foot. He demonstrated a positive tinel's sign at the level of the ankle. He remained somewhat disabled by his ongoing symptoms and somewhat frustrated at his further lack of progress.

OPINION & PROGNOSIS

It is my opinion that [the respondent] suffered significant trauma to the superficial branch of the common peroneal nerve as a result of direct injury from blunt trauma to the right leg. There has been improvement following surgical decompression of the nerve however that improvement is incomplete."

Reasons of the trial judge

29 The trial judge found that the respondent suffered a serious injury to his right leg which he accepted, as a probability, consisted of damage to the common peroneal nerve which seemed to have been exacerbated by a chronic pain syndrome. His Honour considered that the injury had caused the respondent considerable pain and would continue to do so.

30 His Honour accepted that the injury had deprived the respondent of his principal recreational activity, namely his amateur boxing, at least as a participant, about which he was passionate. His Honour, in assessing non-economic loss at 33 per cent of a most extreme case, specifically included an element for the respondent's loss of his boxing career.

31 His Honour accepted, on the basis of Mr Bugg's evidence, that there was a realistic possibility that the respondent's "current employment may be at risk in the not too distant future". His Honour considered that if the respondent was looking for employment on the open labour market, he would suffer "a substantial loss while he is not working and if he obtains employment at a lower salary".

32 His Honour, at [125], also accepted for the purposes of the Civil Liability Act, s 13, that but for the injury, the respondent:

"... would have continued in the quarry industry but would, sooner or later, have advanced and achieved the status of Operations Manager [which] would have produced a higher income."

Resolution of issues on the appeal

a. Non-economic loss

33 The trial judge assessed the respondent as 33 per cent of a most extreme case. The appellant contended that an appropriate assessment for non-economic loss was 25 per cent. An award of non-economic loss is an evaluative judgment. As such, for an appellate court to interfere with a trial judge's assessment, it must be satisfied of some error. In this case, it was not contended that the trial judge took into account irrelevant considerations or wrongly assessed the medical assessment. The submission was no more than that the award was "too high". The appellant presumably meant that the award was outside the range of an appropriate exercise of the trial judge's discretion.

34 In my opinion, although the award may be considered generous, in the sense of being at the high end of an appropriate range, it is not outside of that range, particularly when the trial judge's assessment took into account the significant impact that the injury had on the respondent's recreational boxing activities. The medical evidence was that he had suffered significant trauma and his Honour accepted that he had ongoing pain and disability. It may be, given the terms in which the submissions were sometimes framed, that part of the appellants' approach to this appeal, both as to non-economic and future economic loss, was based upon the injury being to the "superficial nerve". If that is so, it appeared to misunderstand the nature of the injury. The reference to "superficial" in the medical evidence was not as to the extent of the injury, but rather to the location of the nerve that was injured. At operation, the respondent was found to have direct injury to that nerve and events turned out as the medical evidence predicted, namely, that operative treatment may not in that case help him.

35 I would reject the appellants' challenge to the assessment of non-economic loss.

b. Future economic loss

36 It is well-settled principle that to be entitled to an award of future economic loss a plaintiff must establish not only a diminution in earning capacity, but that the diminution is or may be productive of financial loss: Graham v Baker at [10]. A plaintiff is not compensated for loss of earnings per se. This was explained by McHugh J in Medlin v State Government Insurance Commission at 16:

"In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings (See Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed. (1990) at 224 esp. fn.3.). In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because 'an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss' (Graham v Baker (1961) 106 CLR at 347). Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff's ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred."

37 Although the authorities exhort the courts to keep the task of assessing damages as simple as possible: see State of NSW v Moss [2000] NSWCA 133; 54 NSWLR 536, the onus remains upon the plaintiff "to prove what, if anything, he was now not capable of earning": see McCracken v Melbourne Storm at [73] per Ipp JA. See also Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 at 132 per Sugerman JA; Medlin v State Government Insurance Commission at 21 per McHugh J. This principle underpins the requirements of the Civil Liability Act, s 13, which provides:

"13 Future economic loss - claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

38 As I have indicated, it was not suggested that s 13 precludes an award for future economic loss by way of a buffer: see Penrith City Council v Parks [2004] NSWCA 2001, at [3] per Giles JA (Cripps AJA agreeing). His Honour, at [5], explained the circumstances in which it was appropriate to make such an award:

"I consider that it is still open to assess damages by way of a so-called 'buffer'. The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference can not be determined otherwise than by the broad approach of a buffer. Section 13(1) can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated. Having determined damages for future economic loss by way of a buffer, because of the broad approach there is no question of percentage adjustment, and so in the application of s 13(2) the percentage adjustment is nil." (Emphasis added)

39 This approach has been consistently applied by this Court: see K-Mart Australia Ltd v McCann [2004] NSWCA 283; State of New South Wales v Zerafa [2005] NSWCA 187; Khan v Polyzois [2006] NSWCA 59; Fegan (by her tutor Rozenauers) v Lane Cove House Pty Limited [2007] NSWCA 88. In Zorom Enterprises Pty Ltd v Zabow and Ors [2007] NSWCA 106 Basten JA (McColl JA agreeing) explained that the remarks of Giles JA in Penrith City Council v Parks, at [5], did not require the Court to award damages by way of a buffer where there was a difficulty in determining a plaintiff's loss. Rather, the Court was not precluded from making an award by way of a buffer in such a case.

40 As I have said, the appellants did not contest the appropriateness of an award by way of a buffer in this case. However, they contended his Honour erred in his assessment of the amount to be awarded.

41 It is convenient to deal with the appellants' challenge to his Honour's assessment of future economic loss by responding to the following questions:

(1) Did the respondent advance the case for future economic loss on the basis that he would have advanced to the position of operations supervisor in a quarry?

(2) Was there evidence that the respondent had suffered an interference with his earning capacity such as to entitle him to an award for future economic loss?

(3) As a matter of law, is it necessary for a claim for future economic loss due to an interference with earning capacity to be supported by express medical evidence to that effect?

Economic loss based on advancement to operations supervisor

42 No express claim for a loss assessed on the basis that the respondent would advance to the position of Operations Manager was made in the statement of claim, the statement of particulars, the opening of the trial and the closing address. However, the respondent gave evidence of his ambitions in that regard without objection. Nor did the cross-examination challenge the respondent on the basis that he did not have such an ambition. Rather, the cross-examination appeared to be directed to whether the respondent had the capacity to perform at that level.

43 The cross-examiner obtained an answer from the respondent that he could perform that work. That answer was relied upon in the submissions on the appeal as evidence that the respondent would not thereby suffer loss, as there was no impairment to his capacity to perform that work. However, the cross-examination also revealed that there would be more driving involved in the position of an Operations Manager then the respondent was presently doing, due to the necessity to oversee different plants in different and fairly widespread locations.

44 Whilst a party responding to a claim is entitled to require that the party asserting the claim be bound by the case particularised, it frequently occurs that a case is expanded at trial beyond that which has been particularised. If that occurs without objection, the trial judge is entitled to act upon the evidence given. That is what occurred in this case. In circumstances where the respondent was accepted as a witness of credit, as a hard-working person and as a person whose work history had demonstrated he had been prepared to work his way up into more senior positions, it was open to his Honour to assess the respondent as a person who would at some stage have achieved his ambition. In my opinion, therefore, there was no error in his Honour finding that the respondent would, sooner or later, have advanced to the position of an Operations Manager at a higher salary than he was presently earning, notwithstanding the absence of particularisation of any such claim in the statement of claim or particulars of injury provided at trial.

45 The second challenge on this question was to his Honour's assessment of future economic loss. The appellants contended that the only findings the trial judge made in accordance with s 13 to justify the loss of earning capacity in the sum of $120,000 were those made in [125], that is, that the respondent would have advanced and achieved the status of Operations Manager and this would have produced a higher income. If this challenge is intended to assert that his Honour's assessment of a buffer in the sum of $120,000 was based solely on the potential earnings as an Operations Manager, I do not agree.

46 His Honour stated, at [125]:

"For purposes of Section 13 of the [Civil Liability Act] I find that but for the injury [the respondent] would have continued in the quarry industry but would, sooner or later, have advanced in his position and achieved the status of Operations Manager. This would have produced a higher income."

47 In my opinion, the trial judge complied with s 13(1) in an unexceptionable manner. His Honour, at [125], stated the assumption required for the purposes of s 13(1) upon which he was proposing to award for future economic loss, namely, that but for the accident the respondent would have remained in the quarry industry and sooner or later would have achieved the status of operations manager.

48 There was evidence to support future economic loss based upon those two assumptions. In determining the amount to be awarded by way of future economic loss, his Honour, at [122], noted two bases upon which the respondent's claim for future economic loss was made, namely, that:

"... he has a lost capacity to earn as well as an inability to progress further in his career. Part of the claim includes the possibility that if [the respondent] finds himself on the open labour market he will be at a disadvantage as a result of his injuries."

49 His Honour, at [123]-[124], referred to Mr Bugg's evidence and concluded:

"I think Mr Bugg's evidence raises a realistic anticipation that [the respondent's] current employment may be at risk in the not too distant future. If he was placed on the open labour market his current high income will result in a substantial loss while he is not working and if he obtains employment at a lower salary."

50 The effect of his Honour's findings, at [123]-[124], was that the respondent had been suffering difficulties in maintaining full work performance, that his work performance was under scrutiny and his job may be in jeopardy. The respondent's evidence as to the difficulties he was having centred around the problems he had with driving and in operating machinery. His evidence was that there was more driving involved in the work of an operations manager than in his present position. There was thus evidence that supported his Honour's finding that the respondent had suffered an interference with his earning capacity, notwithstanding that he had not actually suffered a loss of income up to that point.

51 The appellants also argued that there needed to be medical evidence to support a claim that a party had sustained an impairment to future economic capacity and that in this case there was no such express statement. The appellant did not refer the Court to any authority to support that proposition and I do not know of any. There must, of course, be evidence to support such a claim. In this case, that evidence was to be found, in the first place, in the evidence of the respondent and Mr Bugg.

52 So far as the medical evidence was concerned, although there was no direct statement that the respondent's future work capacity was impaired, the medical evidence was consistent with the respondent's evidence as to the extent of his incapacity. I have already referred to that evidence but repeat, for the purposes of the present argument, that he underwent an operative procedure; Dr Coffey indicated that such a procedure may not be effective to alleviate pain if there was direct injury to the nerve; that direct injury to the nerve was observed during the operation; and despite some initial relief, the respondent's level of pain recurred, particularly once he was back to full activity.

53 It follows that none of the challenges raised by the appellants to his Honour's assessment of future economic loss have been made out.

Conclusion

54 In my opinion, the appeal should be dismissed with costs.

55 BASTEN JA: I agree that the appeal in this matter should be dismissed for the reasons given by Beazley JA. I make the following further observations with respect to the quantification of damages.

56 First, in relation to non-economic loss, there appears to be a tendency to challenge relatively minor variations in the proportion of a most extreme case, as assessed for the purposes of s 16 of the Civil Liability Act 2002 (NSW). Thus, in the present case, the challenge to the assessment made by the primary judge (33%) sought a reduction to 25%. The assessment involves a matter of "opinion, impression, speculation, and estimation": Dell v Dalton (1991) 23 NSWLR 528 at 533G (Handley JA, Kirby P and Priestley JA agreeing) recently repeated in Jackson v Mazzafero [2012] NSWCA 170. Accepting that the assessment of the trial judge was generous, it would only be necessary to conclude that an appropriate assessment might have been 30%, plus or minus 5%, in order to say that both figures were within range and, accordingly, it would be inappropriate for the Court to interfere.

57 It is true that a small variation in the assessment may have significant consequences for the amount of damages to be awarded. In the present case, according to the table provided in s 16 of the Civil Liability Act, a 25% assessment as a proportion of a most extreme case will permit an award of 6.5% of the maximum amount fixed by statute; a 33% assessment will result in 33% of the maximum amount. In rough terms, an increase of one-third in the assessment results in an increase of 500% in the award. However, the fact that a small change in the assessment can have a large consequence in monetary terms does not mean that the nature of the assessment changes or can be assumed to be a more precise exercise than it is. The relationship between the assessment and the consequence is fixed by Parliament. To assess the proportion of a most extreme case by reference to the consequence in monetary terms would be to adopt a legally erroneous course.

58 The second observation relates to the challenge to the award for future economic loss. The challenge in this regard also seemed to reflect underlying assumptions which need to be identified.

59 The first implicit assumption was that the on-going disability, carrying with it a risk to the plaintiff's future employment, was exaggerated. One difficulty he faced was that he needed evidence as to the risk of loss of his current employment. The medical practitioners could not helpfully or objectively verify his pain threshold, but his own self-assessment would have carried limited weight. To call evidence from his current manager, with whom he had a good relationship and who valued his work highly, as to the risk of termination may have carried a suspicion of collusion. In the event, the evidence of his manager, Mr Bugg, was not challenged on that basis, but rather on the basis that the warning he had received related to a period when he was recovering from surgery: Tcpt, 28/07/11, pp 193-194. That challenge was largely unsuccessful and it was therefore unsurprising that the trial judge accepted that there was a significant risk because of his need to shorten working hours from time to time to accommodate the variable pain levels.

60 The other implicit assumption may have been that the amount awarded was too high for a true buffer. In other words, if such an amount were appropriate, it should have been properly calculated by reference to a proportionate diminution in earning capacity and been subjected to the concomitant allowance for vicissitudes.

61 As Beazley JA has explained, the fact that a diminution in earning capacity had resulted from the injury was reasonably clear: the extent to which it was likely to result in financial loss and at what time in the future that might occur was far less certain. That degree of uncertainty rendered artificial a calculation based on the current value of future loss. Accepting that a level of future loss was probable, the appropriateness of the allowance would not be improved, or better justified, by adopting a precise form of calculation. No doubt there is a point at which the size of the buffer will demonstrate a disproportion with any plausible calculation based on a percentage diminution in earning capacity, current rates of pay, life expectancy and vicissitudes. The figure arrived at in the present case was not so high as to justify such concerns.

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Decision last updated: 30 July 2012