Bell v Mannesmann Demag Pty Ltd & Ors [1991] QSCFC 50

IN THE SUPREME COURT OF QUEENSLAND JOPStM >** \ Date- ^ •'CSSriStV' FULL COURT No. 1238 of 1984 BEFORE: Mr. Justice Shepherdson Mr. Justice Williams Mr. Justice de Jersey BRISBANE, 31 MAY 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter , Court Reporting Bureau.) BETWEEN : BRUCE WALTER BELL (Plaintiff) -and- MANNESMANN DEMAG PTY. LIMITED (First Defendant) -and- R.Q.Y.S. MARINA LIMITED (Second Defendant) -and- SINCLAIR KNIGHT & PARTNERS PTY. LIMITED (Third Defendant) JUDGMENT MR. JUSTICE SHEPHERDSON: I agree that the appeal should be dismissed for the reasons which my brother Williams is about to give. I publish my reasons. MR. JUSTICE WILLIAMS: In my opinion the appeal should be dismissed with costs. I publish my reasons. MR. JUSTICE de JERSEY: I agree that the appeal should be dismissed with costs for the reasons delivered by my brother Williams . Appellant First Respondent Second Respondent Third Respondent — Govt. Printer, G!d. [1991] QSCFC 50 -- 1 of 18 -- 10 20 30 40 50 60 MR. JUSTICE SHEPHERDSON: The order of the Court is then the appeal is dismissed with costs. — Govt. Printer, Qtd. 20 30 40 50 60 4 -- 2 of 18 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Writ No. 1238 of 1984 BETWEEN : AND: AND: BRUCE WALTER BELL (Plaintiff) Appellant MANNESMANN DEMAG PTY. LIMITED (First Defendant) First Respondent AND: R.Q.Y.S. MARINA LIMITED (Second Defendant) Second Respondent SINCLAIR KNIGHT & PARTNERS PTY. LIMITED (Third Defendant) Third Respondent SHEPHERDSON J WILLIAMS J de JERSEY J Reasons for judgment delivered by Shepherdson J and Williams J on the 31st May, 1991. Shepherdson J and de Jersey J agreeing with the reasons of Williams J. All concurring as to the order . "APPEAL DISMISSED WITH COSTS. M -- 3 of 18 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 1238 of 1984 Before the Full Court Mr Justice Shepherdson Mr Justice Williams Mr Justice de Jersey BETWEEN : BRUCE WALTER BELL (Plaintiff) Appellant - and - MANNESMANN DEMAG PTY. LIMITED First (First Defendant) Respondent - and - R.Q.Y.S. MARINA LIMITED (Second Defendant) - and - Second Respondent SINCLAIR KNIGHT & PARTNERS PTY. LIMITED (Third Defendant) Third Respondent JUDGMENT - SHEPHERDSON J. Delivered the Thirty-First day of May, 1991 CATCHWORDS DAMAGES - Loss of a chance - authorities cited. Counsel: W. Campbell for the Appellant G.A. Thompson for the Respondent Solicitors: Lyons for the Appellant Henderson Trout for the Respondents Hearing Date: 9th May, 1991. -- 4 of 18 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 1238 of 1984 BETWEEN : BRUCE WALTER BELL ( Plaintiff ) - and - MANNESMANN DEMAG PTY. LIMITED (First Defendant) - and - R.Q.Y.S. MARINA LIMITED (Second Defendant) - and - Appellant First Respondent Second Respondent SINCLAIR KNIGHT & PARTNERS PTY. LIMITED Third (Third Defendant) Respondent JUDGMENT - SHEPHERDSON J. Delivered the Thirty-First day of May, 1991 I have had the benefit of reading the reasons for judgment of my brother Williams and I agree that the appeal should be dismissed for the reasons which he gives. I do however wish to comment on the matter of assessment of damages for the loss of a chance. In the present case it is quite clear that His Honour assessed the $25,000.00 for diminution in earning capacity by reason of the appellant having lost the opportunity of earning as a skipper income in excess of that which he was earning at the date of judgment. His Honour must have been satisfied that that opportunity or chance was substantial. This is clear from Davies v. Tavlor (1974) A.C. 207 a case where in a Lord Campbells Act action a widow had left her husband some five weeks before his death and there was no immediate prospect of her returning to him. He wanted her to -- 5 of 18 -- 2 come back but she was unwilling to come. She said there was a prospect or chance or probability that she might have returned to him later and it was only in that event that she would have benefited from his survival. Lord Reid (at p. 212) put the matter succinctly when he said:- "To my mind the issue and the sole issue is whether that chance or probability is substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than 'substantial' on the one hand, or 'speculative' on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective." At p. 220 Lord Simon of Glaisdale said:- "If the appellant showed any substantial (i.e. not merely fanciful) possibility of a resumption of cohabitation she was entitled to compensation for being deprived of that possibility." I mention also the speech of Lord Cross of Chelsea at p. 223 without citing from it. Apart from Davies v. Tavlor I should mention Fink v. Fink (1946) 74 C.L.R. 127 in which a wife sued her husband claiming substantial damages for breach of an agreement whereby the husband had agreed to permit the wife to remain in the matrimonial home and not proceed for a divorce for one year. The agreement recited that the husband had made allegations against the wife and the husband was not at present prepared to agree to a reconciliation. Latham C.J. and Williams J. in their joint judgment said (at pp. 123-5):- "The loss of the opportunity for effecting a reconciliation with her husband is a loss to the plaintiff of a possibility of future consortium and maintenance. The damage arising from loss of opportunity to obtain a benefit may be so dependent -- 6 of 18 -- 3 \ upon a number of contingencies as to be negligible ( Sapwell v. Bass (1910) 2 K.B. 486) or the chance which has been lost, though no more than a chance, may be sufficiently real to afford a basis for an estimate of loss, difficult though that estimate may be ( Chaplin v. Hicks (1911) 2 K.B. 786). The decision in a particular case must depend upon the circumstances of the case." Once the learned trial Judge had decided that the appellant's lost chance was substantial he assessed the damages for that loss. His Honour found, as my brother Williams has pointed out, that it was probable that the appellant would have left his present employment after four or five years if he had attained his Class 3 Certificate and had found an attractive position as an employed skipper. These two contingencies, upon which the appellant's opportunities to earn income depended, did not render the assessment of his damages incapable of assessment ( Chaplin v. Hicks (1911) 2 K.B. 786). The assessment of the damages must always take into account the facts and circumstances of the particular case. In some cases the damages might be substantial (as was the case in Leis v. Gardner (1965) Qd.R. 181 at 189). But this will not be so in all cases. In the present case the appellant has failed to demonstrate that the learned trial Judge's award of damages was so low as to be a wholly erroneous estimate of the damage suffered by the appellant. The appellant's counsel did not contend that His Honour had acted on a wrong principle of law or had misapprehended the facts. -- 7 of 18 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No, 1238 of 1984 Before the Full Court Mr. Justice Shepherdson Mr. Justice Williams Mr. Justice de Jersey BETWEEN : BRUCE WALTER BELL (Plaintiff) Appellant AND: MANNESMANN DEMAG PTY. LIMITED (First Defendant) First Respondent AND: R.Q.Y.S. MARINA LIMITED (Second Defendant) Second Respondent AND: SINCLAIR KNIGHT AND PARTNERS PTY. LIMITED (Third Defendant) Third Respondent JUDGMENT - G.N. WILLIAMS J. Delivered the day of , 1991. CATCHWORDS : Damages - lost opportunity to earn at higher level - contingent on passing examination and job opportunities available - able to continue earning good income in current job - global assessment by trial Judge not interfered with. Counsel: Mr. W. Campbell for Appellant. Mr. G.A. Thompson for Respondent. Solicitors: Lyons for Appellant. Henderson Trout for Respondent. Hearing date: 9th May, 1991. -- 8 of 18 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 1238 of 1984 BETWEEN : AND: AND: AND: BRUCE WALTER BELL (Plaintiff) Appellant MANNESMANN DEMAG PTY. LIMITED (First Defendant) First Respondent R.Q.Y.S. MARINA LIMITED (Second Defendant) Second Respondent SINCLAIR KNIGHT AND PARTNERS PTY. LIMITED (Third Defendant) Third Respondent JUDGMENT - G.N. WILLIAMS J. Delivered the day of • The appellant (plaintiff) claimed damages for personal injury sustained in the course of his employment on 14th October, 1981. At trial the respondents (defendants) admitted liability and the learned trial Judge was then faced with the task of assessing quantum. For reasons which he gave he concluded that damages should be assessed in the sum of $92,043.28, including interest. After deducting a repayment to the Workers' Compensation Board he gave judgment for the appellant for $85,320.50. From that decision the appellant has appealed. The -- 9 of 18 -- 2 assessment was attacked only insofar as it related to past and future economic loss. As a result of his injuries the appellant was off work until about 9th December, 1981, and in consequence of his being off work for that period he received $1,987.78 from the Workers' Compensation Board. The learned trial Judge allowed that sum in his assessment and described it as "past economic loss". It was the appellant's case at trial that in consequence of his injuries he had lost the opportunity of qualifying for a Class 3 Certificate which would have entitled him to act as master of larger sea-going vessels than the Class 4 Certificate which he held prior to the accident. His contention was that but for the accident he would have obtained the Class 3 Certificate prior to date of trial and by that date have been earning at a higher level than his salary as the manager of the Royal Queensland Yacht Squadron Marina; that was the position he occupied at the time of the accident and as at the date of trial. The ultimate finding of the learned trial Judge with respect to that contention was expressed as follows: "I am satisfied that the plaintiff has lost the opportunity of earning as a skipper income in excess of that which he is presently earning. I consider that I should allow the plaintiff a global amount for diminution of his earning capacity. I allow him $25,000.00." When the reasons are read as a whole I am of the view that in making that assessment the learned trial Judge had regard to both pre-trial and future economic loss arising from the lost opportunity. Before this Court counsel for the appellant submitted that the learned trial Judge erred in overlooking the -- 10 of 18 -- 3 fact that on the evidence some of the economic loss derived from that lost opportunity would have been incurred pre-trial. That argument in my view is not sustainable. The learned trial Judge awarded damages for the few weeks the appellant was off work entirely in consequence of his injuries. Thereafter the evidence disclosed that he had returned to work as the manager of the marina, that he still held that position as at date of trial, and that he could continue in that position for an indefinite time into the future. In those circumstances, in my view, it was appropriate for the learned trial Judge to assess damages for the lost opportunity to earn income as the holder of a Class 3 Certificate on a global basis, covering both the pre-trial period and the future. He did just that; the $25,000.00 includes a component for pre-trial loss. On that basis the only issue for determination is whether or not $25,000.00 was so low an award that the interference of this Court was called for on the basis there was a wholly erroneous estimate of the damage suffered. in a sense any award for future economic loss compensates a plaintiff for the lost opportunity of earning income in the future. But it is important in my view to distinguish between the situation here, and that where an injured party is prevented from continuing to earn income in the future on the very basis on which he has in fact earned income in the past. In the latter situation the party has demonstrated a capacity to earn that income, and if the employment was secure as at the date of injury, the only discounting need be for the normal vicissitudes of life. In those circumstances the parameters are determined -- 11 of 18 -- 4 by what has happened in the past, and the calculation of future economic loss is ; largely an exercise in arithmetic. The basis of assessment: must be different where the party has not demonstrated in the past a capacity to earn on the basis in question. In those circumstances the assessment of future economic loss is almost entirely dependent upon the assessment of the relevant evidence made by the trial Judge. That is particularly so where, as here, neither at the date of injury nor at the date of trial is the plaintiff qualified to earn income on the basis on which it was submitted economic loss should be assessed. It follows that in this case the findings of the learned trial Judge, and in particular his assessment of the plaintiff, are of critical importance. I therefore turn to the relevant findings. The appellant was born in December 1935, and was aged 54 at the date of trial. He was aged about 46 when injured. Prior to the accident the appellant had a somewhat varied employment history. He had worked in New Zealand before coming to Australia where he held the position of Credit Manager for Victoria of A.G.C. until he left to go to Gladstone in 1970. He then worked as a store proprietor, real estate agent, and as an employee of a firm of accountants. In 1975 he purchased a 38 foot motor cruiser and set up his own business. In 1980 he chartered that boat to a dredging company for use as a survey vessel in Gladstone Harbour. The learned trial Judge noted that the appellant "admitted in cross-examination that he experienced financial problems in running the charter business, and that he -- 12 of 18 -- 5 received higher remuneration when the boat was chartered to the company." Towards the end of 1980 he learned of the plan to develop the R.Q.Y.S. Marina at Manly and offered to help. He commenced work there in February 1981 and has acted as manager throughout the development and expansion of the marina. He was still so employed at the date of trial. He said in evidence that he saw bigger and better boats at the Manly Marina and "decided in his first year at the Squadron to get a Class 3 Certificate to enable him to skipper these boats." The learned trial Judge said:- "The plaintiff had obtained a Class 4 Certificate in November, 1 977. This enabled him to act as Master Grade IV between the limits of Sandy Cape and the Keppel Islands including the Capricorn and Bunker Groups and the Swain Reefs. He said that he needed this to take paying customers on his vessel. However, he did not need a Class 3 Certificate for his boat and business in Gladstone. He said that he knew that he needed a Class 3 Certificate to be able to act as a skipper of luxury vessels of 60 or 70 feet dimension. I do not accept that the plaintiff had decided prior to his accident that he would sit for the examinations necessary to obtain a Class 3 Certificate ." The finding I have emphasised was open on the evidence and, in my view, it must have a significant impact upon the assessment of damages for the lost opportunity claimed. The learned trial Judge was obviously not prepared to accept and act upon all that the appellant said. The learned trial Judge accepted that it was "probable that the plaintiff would not be permitted to sit for an examination for a Class 3 Certificate in view of the evidence which I accept that the plaintiff suffers from 'turns' which are a partial form of epilepsy and involve blurred vision, headaches and possible blackouts." There is no doubt that such disabilities are a -- 13 of 18 -- 6 result of the accident in question. The learned trial Judge went on to hold that in consequence of his disabilities the appellant had an impaired ability to learn new verbal material which was necessary for passing the examinations. Further, if by any chance the appellant succeeded in passing the examinations, the learned trial Judge held that it would be "a hazardous matter to entrust him with the task of skipper of a vessel when he was subject to the '.turns' which he experiences." Then follows the passage which occasioned much debate during the course of argument :- "I conclude therefore that the plaintiff has been deprived as a consequence of the injuries he received of the possibility of returning to the sea as a skipper of a vessel. I am satisfied that if he had not been injured, he would probably have sought a position as skipper of a vessel, and probably would have studied to obtain a Class 3 Certificate in order to be able to skipper large and more expensive vessels than those he was permitted to skipper as the holder of a Class 4 Certificate. He has been involved in boats since he lived in New Zealand, he has owned and operated a boat as a business venture, and he has a love of boats and sailing. As he has changed jobs from time to time, I consider it probable that he would have left his present employment after four or five years if he had obtained his Class 3 Certificate and had found an attractive position as an employed skipper ." (my emphasis) It must be noted in my view that though the learned trial Judge used the term "probably" on three occasions in that passage, the probabilities he found were qualified; in particular they were conditional upon the obtaining a Class 3 Certificate and finding an "attractive position as an employed skipper". Given the language used by the learned trial Judge, he was not finding that but for the accident the appellant would certainly have attained his Class 3 Certificate. Therefore ultimately he -- 14 of 18 -- was only deprived of the possibility of returning to the sea as the holder of a Class 3 Certificate. The appellant gave unchallenged evidence that his present position was available to him for as long as he chose to stay. His present salary package was $40,000.00 per annum gross, composed of a salary of $35,000.00, a superannuation contribution of $3,000.00, and car allowance of $2,000.00. It is interesting to note that under cross-examination by counsel for his employer it was put to him: "You basically write your own package or ticket in respect of that?" He responded, and there was no challenged to this: "In the sense that I prepare budgets for the operation of the marina and the marina company. Included in that budget is a provision for the cost of me to the company. The either approve the budget or they ask me to revise it." The learned trial Judge then referred to evidence given by witnesses called in support of the appellant's claim for economic loss based on his working as a charter vessel skipper holding a Class 3 Certificate. The learned trial Judge set out in some detail the earnings of the witnesses Black and Marston, and went on: - 7 "I am unable on this evidence to make any exact assessment of the plaintiff's loss of opportunity to earn income as a skipper of a boat. It may well be the position that the salary and benefits paid to skippers varies greatly depending on their employer, their duties, and the kind of vessel involved. Nothing that was put before me would enable me to conclude that the salary or benefits paid to Mr. Black or Mr. Marston were typical of those paid to skippers holding a Class 3 Certificate. Nevertheless, as Moffitt J, said in Keallev v. Jones (1979) 1 N.S.W.L.R. 723 at p. 734, 'There have been numerous cases in which the courts have brought into account, in assessing damages for diminution of earning capacity, likely or contingent prospects of loss due to diminished working capacity, even though it had to -- 15 of 18 -- determine the loss without the aid of any schedule of moneys or wages to be earned.' One such case was National Instruments Ptv. Ltd, v. Gilles (1975) 49 A.L.J.R. 349, where it was said that, in assessing damages for loss of the possibility by a law student of entering into private practice as a solicitor, the trial Judge was entitled to decide that he would suffer a considerable loss of income, whatever its particular amount might be, and that he had no need to have evidence of the specific earnings of a solicitor in private practice or as to the precise level of those earnings ." It was argued that the learned trial Judge was not entitled to conclude that the earnings of Black and Marston were not "typical", but in my view the comments on that evidence contained in the passage just quoted were open on the evidence and the learned trial Judge was entitled to reach that conclusion. It was then that the learned trial Judge made the assessment of $25,000.00 as "a global amount for diminution of his earning capacity" - the ultimate finding I quoted initially from his judgment. With respect I can find no defect in His Honour's reasoning. He had regard to the relevant issues, and recognised that he was assessing damages for a loss of the possibility of earning at a higher level than the appellant was capable of both at the date of the accident and as at the date of trial. This case, in truth, presented the difficulties referred to by Moffitt J. in' the passage quoted by the learned trial Judge. Understandably it is difficult to find in the authorities guidelines for Judges (of juries) when assessing damages dependent upon one or more contingencies. Statements in Chaplin v. Hicks (1911) 2 K.B. 786 are apposite here; the approach must be the same whether damages are being assessed in contract or in tort. The following extracts from the judgment of Vaughan Williams L.J. at 791-2 are helpful:- -- 16 of 18 -- 9 "It was said that the plaintiff's chance of winning a ^ prize turned on such a number of contingencies that it was impossible for anyone, even after arriving at the conclusion that the plaintiff had lost her opportunity by the breach, to say that there was any assessable value of that loss. It is said that in a case which involved so many contingencies it is impossible to say what was the plaintiff's pecuniary loss. I am unable to agree with that contention. I agree that the presence of all the contingencies upon which the gaining of the prize might depend makes the calculation not only difficult but incapable of being carried out with certainty or precision. . . .1 do not agree with the contention that, if certainty is impossible of attainment, the damages for a breach of contract are unassessable . ... In such a case the jury must do the best they can, and it may be that the amount of their verdict will really be a matter of guesswork. But the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages for his breach of contract." And in the same case Fletcher Maulton L.J. made these relevant observations:- "But it is said that the damages cannot be arrived at because it is impossible to estimate the quantum of the reasonable probability of the plaintiff's being a winner. I think that, where it is clear that there has been actual loss resulting from the breach of contract, which is difficult to estimate in money, it is for the jury to do their best to estimate; it is not necessary that there should be an absolute measure of damages in each case. There are no doubt well settled rules as to the measure of damages in certain cases, but such accepted rules are only applicable where the breach is one that frequently occurs. . . . But in most cases it may be said that there is no recognised measure of damages, and that the jury must give what they think to be an adequate solatium under all the circumstances of the case. ... He has sustained a very real loss, and there can be no possible reason why the law should not leave it to the jury to estimate the value of that of which he has been deprived. ... I cannot lay down any rule as to the measure of damages in such a case; this must be left to the good sense of the jury." (795-6) Finally from that case it should be noted that at 798 Farwell L.J. said that "the chance or probability may in a given case be so slender that a jury could not properly give more than -- 17 of 18 -- 10 nominal damages, say one shilling; if they had done so in the present case, it would have been entirely a question for them, and this Court could not have interfered." There is a worthwhile discussion of the principles and cases relative to assessing the loss of a chance or the loss of a possibility to earn higher income in McGregor on Damages (14th ed.) paras. 257-280, p. 197-203. I have referred to the observations from Chaplin v. Hicks in order to demonstrate that in this area of the law the trial Judge is really performing a jury function and the assessment of economic loss incurred because of a lost chance of earning higher income is very much a matter of impression for the trial Judge. Here the learned trial Judge carefully analysed the evidence, and properly directed himself as to the matters relevant to the assessment. He arrived at a global figure of $25,000.00 and I cannot say that he was wrong. In the circumstances such an assessment is not so low as to bespeak some undefined error in reasoning or approach on the part of the learned trial Judge. It is not to the point that I, or some other Judge, may have awarded a different amount. No basis has therefore been established on which this Court should interfere with the assessment made, and the appeal should be dismissed with costs. -- 18 of 18 --