This NSWCA of decision is a timely reminder of the principles in Malec v JC Hutton Pty Ltd  HCA 20 and in the context of the recent High Court decision of Tabet v Gett  HCA 12 (21 April 2010) it is useful to refresh the relevant standard of proof and degrees of probability subject to what is being sought to be proved.
The appellant was a furniture removalist and at the time of sustaining his significant back injury he had experience as a truck driver, but not with the necessary MC licence. The trial judge assessed future economic loss on the basis of remaining as a furniture removalist and rejected the claim as a “long-haul” interstate truck driver on a number of grounds, including credit. The appellant had since the injury upgraded his licence to a MC licence, however, he had only been able to work for 2 weeks. There was some considerable debate as to whether he gave up the work because of the pain and lack of being able to obtain pain relief medication or whether it was because of the hours of the work and the months away from home. This was further clouded by some inconsistency in his reporting to doctors and specialists who had provided reports.
The appellant gave evidence that prior to the accident, he had planned to obtain an MC licence. Whilst her Honour did not have to accept that evidence, she was required to consider it, together with: the evidence of his statements to the assessors that it had always been his vocational aspiration to be a truck driver, in particular, to be an interstate truck driver; that he in fact had an MC licence which enabled him to drive B doubles; and that he had obtained that licence after the accident for the purposes of his employment with JMA. As I have already stated, a person driving B doubles is able to earn at a higher rate than persons driving vehicles for which only an HR or HC licence is required. The appellant was not cross-examined to the effect that he was not being truthful when he said that prior to the accident he had an intention to obtain his MC licence. Nor was he cross-examined to the effect that he was not prepared to be away from home whilst undertaking long haul work, or at least that he was not prepared to do that work whilst his family was young.
Given the unchallenged evidence of the appellant’s intentions and the absence of cross-examination on critical aspects of his claim, I am of the opinion that her Honour erred in basing the assessment of the appellant’s future economic loss on his being a removalist. Rather, her Honour was required to assess the degree of probability that, had he been uninjured, the appellant would have exercised his earning capacity by driving B doubles, in accordance with the well known principles in Malec v JC Hutton Pty Ltd.
Per DEANE, GAUDRON AND McHUGH JJ:
When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle (1970) AC 166, at p 174; Davies v. Taylor (1974) AC 207, at pp 212, 219; McIntosh v. Williams (1979) 2 NSWLR 543, at pp 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.
Brisbane Barrister – David Cormack