QCA: nil award for past loss of income varied and subsequent impact on PIPA costs

Nichols v Curtis & Anor [2010] QCA 303

I refer to my earlier posting on the trial decision and costs. The issue on appeal was past loss of income, which his Honour Andrews J awarded no allowance.

McMurdo P and Chesterman JA concurred with Fraser JA allowing the appeal and past loss of income in the sum of $8,000.00, which reduced for contributory negligence increased the primary award by $4,800.00. The effect of this was to take the judgment to $52,418.00 and costs on a standard basis, not the limit of $2,500.00. His Honour rejected the argument for indemnity costs on the basis of an informal offer made. Nevertheless, the impact of the increase in recoverable cost would be substantial, probably in the order of $40,000.00 – $50,000.00.

Fraser JA

[27]

That evidence required that an award for past economic loss should be very moderate, especially for the period up to about two years before the trial, but it did not suggest that the applicant had not sustained any such loss.

[28]

It is also relevant that the applicant was vague about specific employment opportunities. If the applicant’s injury had caused her to rule out any specific employment it might be expected that she could have given evidence to that effect. Such evidence would have been very useful, at least in eliminating or reducing the uncertainty in one of the variables in the assessment of damages for past economic loss which ordinarily must remain uncertain in relation to future economic loss.21 However the point loses some of its significance on the facts of this case, since it does not seem surprising that this applicant was vague about specific employment opportunities in a field of work which was substantially foreclosed to her by her injury.

[29]

In McDonald v FAI Insurance Thomas J said that, “When a plaintiff is shown to have had at least some earning capacity, and to have suffered some physical disability from an accident which might be expected to make the maintenance of employment somewhat more difficult, it is usual to make some allowance for economic loss.”22 In this case the applicant had also given evidence that she had been required to preclude from her search for employment the category of work for which she seemed most suited.

[30]

Thomas J went on to categorise many of the cases typically encountered:23

“In a case where damage is capable of precise proof, and a plaintiff fails to produce such proof, no assessment (or a nil assessment) will be made (Sunley and Co. v. Cunard [1940] 1 K.B. 740, 747; Woodham v. Rasmussen (1953) St.R.Qd. 202, 215; Holmes v. Jones (1907) 4 C.L.R. 1692, 1703, 1717; Ted Brown Quarries v. General Quarries (1977) 16 A.L.R. 23 37). In cases where some loss has apparently been suffered but the plaintiff has failed to take the trouble to produce evidence that would reasonably be expected to be available, no more than a very conservative estimate of damages will be made (Minchin v. Public Curator (1965) A.L.R. 91, 93; Ashcroft v. Curtin [1971] 3 All E.R. 1208; Aerial Advertising Co. v. Batchelors Peas [1938] 2 All E.R. 788, 796). This may be contrasted with the familiar exercise of assessing damages upon issues which of their very nature are incapable of precise proof, such as future economic loss, and, quite frequently, past economic loss, where the Courts do the best they can on necessarily imprecise matter. (Malec (above); Chaplin v. Hicks [1911] 2 K.B. 786, 795; Wheeler v. Riverside Coal Transport [1964] Qd.R. 113, 124; Biggen and Co. v. Permanite Ltd [1951] 1 K.B. 422, 438; Dessent v. The Commonwealth (1977) 13 A.L.R. 437, 447). Even in cases of that kind a plaintiff is expected to place before the Court the essential facts upon which the necessary inferences and projections are to be made. There is no difference in the approach of the Courts according to whether the case is based on contract or tort. In all cases the extent of proof required depends upon the nature of the issue to be proved.”

[31]

The present case does not fall neatly into one of those categories, but in my view it certainly does not fall into the first category, both because the applicant’s claim for past economic loss was inherently insusceptible of precise proof and because the applicant adduced the quite extensive evidence relevant to that claim which I have endeavoured to summarise. That evidence might well have been more precise in some respects but, as I have indicated, that imprecision was understandable. Despite the obvious reasons for substantially discounting the claim, I am unable to accept that the applicant did not establish that she suffered some economic loss during the period between the accident and the trial, a period in which the primary judge found that she had made significant and effective efforts to improve her employability. The primary judge referred to the applicant’s earnings from her employment at the abattoir where she earned $307.2024 and at the nursery where she earned $6,834.00,25 despite her difficulties in performing the work. Bearing in mind also the quantum of the primary judge’s award for future economic loss, and that it related to a far longer period which commenced when the applicant had substantially improved her employability, the evidence I have endeavoured to summarise justified an award for past economic loss of $8,000.

[32]

In many cases such an assessment would be too insignificant to justify any alteration to the damages, especially because the main components of such an award are necessarily estimations. In this case, however, the primary judge assessed future economic loss quite separately and there is no suggestion that it was other than an appropriately conservative estimate. The only reason for the primary judge’s rejection of any additional component for past economic loss was his Honour’s finding that the applicant did not give any evidence that supported it. In light of my different conclusion it is appropriate here to treat the component for past economic loss as being separate from the component which the primary judge awarded for future economic loss.

[33]

I would increase the primary judge’s assessment of the applicant’s loss by $8,000 from $79,363.50 to $87,363.50. Applying the agreed apportionment, the amount of the judgment should be increased by $4,800 from $47,618.10 to $52,418.10.

21 McDonald v FAI General Insurance Co Ltd [1995] QCA 436 per Thomas J at p 4 referring to Harold Luntz, Assessment of Damages for Personal Injury and Death (3rd Ed, 1990) at para 5.1.13.

22 McDonald v FAI General Insurance Co Ltd [1995] QCA 436 at pp 5 to 6.

23 McDonald v FAI General Insurance Co Ltd [1995] QCA 436 at pp 6 to 7.  

24 Nichols v Curtis and QBE Insurance (Australia) Limited [2010] QDC 34 at [30].

25 Nichols v Curtis and QBE Insurance (Australia) Limited [2010] QDC 34 at [31].

Brisbane Barrister – David Cormack  

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