CLA: economic loss and determining the chance of a probability

Balnaves v Neil Clifford Smith & Anor [2012] QSC 192

Background

The plaintiff was injured in a boating incident and a prior trial had apportioned liability at 65% against him. Damages had since been agreed save economic loss. The Plaintiff was the Executive Chairman of Southern Star Group Ltd (“SSG”) and considered he had “founded and built” it. In issue was whether the company was sold because of his injuries and his ability to perform, together with the value of his shares in the company and his diminution in remuneration following the boating incident. The decision highlights the difficulty in establishing a capital loss and the need for evidence concerning competing assumptions, together with determining the percentage of the chance of the loss claimed.

Byrne SJA

The probabilities

[100] There is often reason for caution in evaluating the evidence of a plaintiff who testifies that he would have acted differently had he not been injured[11], and:

“inferences from surrounding circumstances, other objective facts and the probabilities may be a more reliable guide on questions of causation than ex post facto evidence from an interested party”[12].

Damages

[126] The plaintiff’s case is that as a result of the SCB takeover, he lost opportunities to:

• continue to work as SSG’s Executive Chairman and to earn income through the salary and other payments he would otherwise have received; and

• obtain an increase in the value of his 31.03% shareholding in SSG by building up its businesses.

[149] Instead, the new damages case is advanced on the basis that the circumstances in 2007 afford some evidence of the value of SSG and its likely share price since then and into the future.

[150] But in the flimsy state of the evidence, it is a serious question whether the plaintiff’s shares in SSG would have been worth more after 2008 – the year of the onset of the global financial crisis – than the value he extracted from disposing of them in the SCB takeover.

Approach to assessment of capital loss

[151] In principle, mere difficulty of assessment of a loss is no impediment to an award of damages: the Court must do the best it can[27]. And although information concerning the activities and profits of SSG and its subsidiaries after 2007 might have been expected to have been adduced in support of the case now propounded, the absence of such information, although it would not sustain an indulgent approach to the assessment, does not necessarily preclude an award for the lost economic opportunities[28].

[152] In Montemaggiori v Wilson[29], Buss and Newnes JJA said:[30]

“…the assessment of damages for personal injuries in an action for negligence is not an exact science. The process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case. In a similar vein, in Paul v Rendell (1981) 34 ALR 569 the Privy Council observed:

… the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.

The plaintiff who seeks damages has the legal onus of proving loss of earning capacity and the extent to which that loss produces, or might produce, financial loss: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 412; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 3. If it is determined that there has been a loss of earning capacity it is then necessary, having regard to the established facts of the past and the probabilities of the future, to determine the damage that will flow from the loss of that capacity: Medlin v State Government Insurance Commission (19). As the plurality pointed out in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643, when the law takes 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. Unless the chance is so low as to be speculative or so high as to be practically certain, the court will take that chance into account in assessing damages. The inquiry – the process of estimation of probabilities – is thus an imprecise and indeterminate one to be carried out within very broad parameters: State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, 553. Accordingly, damages for financial loss likely to result from personal injury can only be an estimate, often a very rough estimate, of the present value of the prospective loss: Todorovic (413).

Whilst it is desirable for a plaintiff to call precise evidence of what he or she would have been likely to earn but for the injury, where earning capacity has unquestionably been reduced the failure to call such evidence, particularly in relation to future loss, does not mean that the plaintiff is not entitled to damages or is entitled only to nominal damages: State of New South Wales v Moss (552, 554). But where evidence ought to have been available, it is hard for a plaintiff who fails to call evidence, or calls incomplete evidence, to complain of a low award: State of New South Wales v Moss (552); Minchin v Public Curator of Queensland (93).”

[159] In the circumstances, especially given the volatility of SSG’s productions and the regularity of mergers and acquisitions involving entertainment ventures in Australia, the paucity of evidence concerning post-2007 values and prospects means that the assessment of the value of the lost opportunity for the plaintiff to have retained his shares in SSG is essentially a speculative exercise. [32]

No capital loss established

[160] In short:

• the evidence does not sustain a conclusion that the plaintiff was worse off – after 2007 at any rate – because he had disposed of his shares in the SCB takeover; and

• as the case was conducted at trial, this means that no loss associated with his shareholding has been proved.

Remoteness?

[161] Mr Diehm contended[33] that the damages sought to be recovered for the plaintiff’s loss of the opportunity to have retained his shareholding in SSG is too remote. Mr Stewart SC asserted the contrary. No case or commentary in point was cited on either side.

[162] In view of my conclusion that no loss of the character claimed has been established, it is not necessary to decide the question. But there is no harm in addressing the point.

[163] It is notorious that many an individual uses a corporation to conduct a business or carry on a vocation. It is, therefore, reasonably foreseeable that personal injury may adversely affect the value of shares in a corporate vehicle the fortunes of which depend to an appreciable extent on a plaintiff’s personal exertion. So the loss related to the shares is not too remote.[34]

Section 54 Civil Liability Act 2003

[164] The parties are agreed that, for the purposes of the ceiling imposed by s.54 of the Civil Liability Act 2003, three times average weekly earnings is $3,786.06.[35]

[165] Mr Stewart contended that the cause of action in respect of the claim relating to the shares accrued on the day of the accident. Mr Diehm did not suggest otherwise.

[166] So, as the matter was argued, it may be taken that the “period of loss of earnings”[36] begins with the accident even though there was no loss of remuneration before 1 January 2004.

[167] Had the plaintiff not been injured and not sold his shares in the meantime, it seems reasonable to approach the assessment on the footing that he would have retired as SSG chairman, and sold his shares, by the end of the financial year in which he turned 65. That accords with Mr Kingston’s impression that he would have worked to his mid-60s. It also acknowledges the incentives to retire before 70 associated with the many other interests in his life: in business and at leisure.[37]

[168] On that approach:

• the “period of loss of earnings” may be taken to have ended on 30 June 2009;

• the s.54 cap is $1,446,815.78.

Income loss

[169] The next consideration is the component of the award for diminution in earning capacity. It is to be assessed on the assumption mentioned: that, uninjured, the plaintiff would have left SSG on 30 June 2009.

[170] The amount of remuneration foregone depends on the level of remuneration the plaintiff would have received had he continued as SSG’s full-time Executive Chairman.

[171] The report of Mr Thompson, one of the accountants, has a calculation that assumes notional pre-tax earnings of $1,050,000 p.a. That assumption is not unrealistic. It broadly accords with remuneration paid to the plaintiff’s successor. Although the remuneration the plaintiff might have received may have been more or less than $1,050,000 annually, that figure presents as a reasonable basis for assessing lost income.

[172] On that approach, the after-tax amount of lost remuneration between 1 January 2004 and 30 June 2009 is $2,376,560.

Assessment

[173] In my judgment, there was roughly a 1-in-10 chance that the plaintiff would not have facilitated SCB’s takeover in 2004 had he not been injured.

[174] On this basis, rounding up to reduce any risk of under assessment of fair compensation, the economic loss is assessed at $250,000.

Brisbane Barrister – David Cormack

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