MVA: child pedestrian and lost earning capacity under s.55 CLA

Perfect v MacDonald & Anor [2012] QSC 11

Issues: contributory negligence and quantum, in particular future loss of earning capacity.

Background:

The plaintiff was 14 years at the time and 16 years of age at trial. He was a pedestrian who was walking partly on the road when he was struck by the extended mirror of the defendant’s motor vehicle.  McMeekin J preferred the evidence of the plaintiff and his witnesses who were walking with him. His Honour found the evidence of the driver to be “…a most unimpressive witness. She was argumentative and defensive, and, perhaps unconsciously, plainly putting the best light on matters that she could.” Whereas Ms Connors for the plaintiff “…conceded matters that she must have appreciated had the capacity to adversely affect her credit. She was most impressive.” Appreciably, where the accounts differed his Honour preferred the plaintiff’s version. Helpfully, McMeekin J provided an overview of the principles in pedestrian claims involving minors. In addition, given the age of the plaintiff there was some considerable agitation as to what loss of earning capacity, if any, was to be considered under the Civil Liability Act 2003 (CLA). The defendant contended that no loss was demonstrable and the effect of the s 55 of the CLA was that no award could be made. Justice McMeekin reaffirmed the approach to be adopted under Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

His Honour in a footnote, also made a pointed statement about costs since the change in jurisdictional limits [[23]] and accordingly, care should be taken when commencing proceedings.  

McMeekin J:

[20] The defendant’s argument is that, acting reasonably, Mr Perfect was obliged to get off the road surface entirely – as Ms Connors did. That would have kept him safe. While the conclusion is undoubtedly true I am not persuaded that the exercise of reasonable care required so much.

[21] First, I observe that Mr Perfect had every right to walk on the road surface if he wished. In doing so he must exercise ordinary care and prudence but he does not do so at his peril: Alldridge v Mulcahey[1] per McTiernan J. Secondly, in deciding what ordinary care and prudence demanded the plaintiff’s age is relevant: McHale v Watson [1966] HCA 13; (1964) 115 CLR 199 at 213-4 per Kitto J. He was then a minor, not quite 15 years of age. While there is no evidence about the matter it seems to me plain that a boy of not quite 15 does not have the same degree of “experience, understanding, judgment and thoughtfulness to be expected of an adult”: Broadhurst v Millman [1976] VR 208 at 218 per Gowans and Menhennitt JJ. Thirdly, what is relevant in determining what is “just and equitable having regard to the extent of that person’s responsibility for the damage”[2] requires consideration both of the degrees of departure from the standard of care expected of a reasonable man and the causative effect of the conduct of each party. By that latter statement it is meant that weight is to be given to the degree of danger created by the conduct in question.[3] Hence, in pedestrian cases, typically a heavier share of responsibility falls on the motorist even if the degrees of departure from the standard of reasonable care be more or less equal.[4] On any view the first defendant’s departure from the standard expected of her was gross. Fourthly, the onus lies on the defendant on this issue.

[22] With those considerations in mind I turn to the facts here.

[23] There was nothing negligent in the plaintiff initially walking along the far right hand side of the road. When the vehicle first emerged over the brow of the small hill it was positioned sufficiently far out on the road surface that it represented no danger to the plaintiff if it maintained its course. The plaintiff was in clear view. He could expect that he would be seen by the driver. There was no traffic or other contingency that would require the driver to take her attention anywhere else or move her vehicle closer to the left side of the road. The vehicle then commenced to veer to the left. Mr Perfect was still in plain view. He remained safe so long as the driver did not move within say two feet of the kerb. There was no reason for the driver to move so far and the presence of three pedestrians provided good reason why she would not. Mr Perfect moved to his left to get a little further into the gutter and off the bitumen surface. In my view he was then acting reasonably and as a normal 14 year old was likely to do. That he did not move as far as Ms Connors is hardly unreasonable, but the counsel of perfection. He was not to know, and indeed remained completely unaware, that this vehicle had protruding from it an extended mirror that required him to get even further off the road to keep himself safe.

[24] At some point it should have become apparent that the driver was intending to pass very close to Mr Perfect and his companions. The danger was thus created. The issue is whether, at that point, Mr Perfect had time to react and remove himself. The onus lay on the defendant to show that he did have sufficient time. It is not possible to make a finding as to how much time elapsed between that point of time and the impact but it was very short. Mr Perfect in his evidence spoke of the “shock” of the car coming. That can readily be accepted. That he failed then to react sufficiently quickly involved no departure from the standard expected of him. And to have acted earlier would have required a superior level of vigilance. Ordinary care and prudence does not, in my judgment, call for the exercise of such vigilance.

[25] It is true that the plaintiff was not entitled to disregard the possibility of negligent acts on the part of an oncoming driver[5] but the defendant’s submission would require the plaintiff to guard against the possibility that the defendant would not only not drive with due care but would drive as if the pedestrians were not there at all. The defendant’s argument really amounted to this proposition – upon the approach of a vehicle all pedestrians ought to remove themselves from the bitumen surface of the roadway until the vehicle has passed, irrespective of the margin for safety that might reasonably be thought to be present. That is not how citizens conduct themselves in daily life. If the proposition is right then other vulnerable road users, such as cyclists, have no business being upon the road surface. Such an approach effectively means that such vulnerable road users, pedestrians included, have only “a theoretical right to walk on the road: it could hardly ever not be rash for him to exercise his legal right”.[6]

[26] I find that the plaintiff acted with all reasonable care for his own safety.

QUANTUM

[45] Section 55 of the CLA is relevant in these circumstances. It provides:

“When earnings can not be precisely calculated

(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.”

[46] Mr Crow of senior counsel for the defendant submitted that the section had altered the common law and where, as here, it was impossible to demonstrate that the plaintiff will, as opposed to may, suffer loss nothing could be allowed. I said of that proposition in Brooks v Zammit & Anor [2011] QSC 181 at [34] where I, not counsel, raised the issue:

“Whether that section alters the common law was not debated. Arguably the restriction that damages should only be awarded “if [the court] is satisfied that the person has suffered or will suffer loss” means that the loss must be established on the balance of probabilities as more likely than not. Thus a loss of a chance that falls below 50% is not to be compensated. However no authority was cited where any court has taken that view and the matter, as I say, was not the subject of argument. Such a contention would run into the same difficulties as were raised in cases involving the interpretation of other provisions of the CLA such as Kriz v King [2006] QCA 351 and Grice v State of Queensland [2005] QCA 272. It was there pointed out that if it was Parliament’s intention to take away well established common law rights then it had to do so “clearly and unambiguously”.[14] It has not done that here. I assume then that the common law applies.”

[47] On further reflection I adhere to that view.

[48] Damages were awarded at common law for loss of or diminution in earning capacity only where it was established, on the balance of probabilities, that any demonstrated impairment “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347 per Dixon CJ, Kitto and Taylor JJ (emphasis added). How one approached that question of “may be” was discussed in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. The reasoning of all the judges in Malec would require an assessment of damages for economic loss at common law where the chance of loss of earnings post accident was more than negligible but significantly less than 50%. That is the approach of the common law and remains the approach under the CLA.

[49] There is a further reason why that approach should be preferred. The defendants’ submission would produce unfairness. As the majority in Malec at 643 explained:

“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 174; Davies v Taylor [1974] AC 207, at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543, at 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.” (emphasis added)

[50] I would not readily impute to the legislature a readiness to work such unfairness without very clear words mandating that approach. Hence when the legislature uses the word “will” in s 55 in the phrase “will suffer loss”, it is doing no more than asserting that these common law tests need to be satisfied.

[51] While the precise point may not have arisen in the past Mr Crow SC has referred me[15] to three decisions where the section has been considered, two of the Court of Appeal. In both of those latter decisions[16] the Court plainly accepted that it was appropriate to adopt the principles explained in Malec when arriving at a global assessment. There was no suggestion that there had been any alteration of the common law brought about by the enactment of s 55.

[52] I turn then to the facts here.

[53] It is hardly unreasonable for the plaintiff to follow his intended career path. The defendant did not contend otherwise. His school results show that he is not academically minded. He is apparently reasonably proficient with his hands. His manual arts teacher, Mr Acworth, thought well of him and would support his career choice. He has the support of his father who is particularly well placed to give him guidance. Assuming he pursues a career involving manual work then on any view the plaintiff runs a real risk of being disadvantaged through his life. Diesel fitting particularly may cause him significant problems. Mr Perfect (Snr) explained it can involve substantial demands:

“…at certain times, you – you need a lot of lifting, heavy – heavy equipment, heavy tools, you need to be able to, you know, move pretty well. A lot of these machines, for example, might be two or three stories off the ground, you have to have good contact with the – with the ladder, or whatever, good three point contact all the time, and make sure that you don’t fall off, obviously.”[17]

[54] I will assume that the plaintiff will eventually qualify in his chosen field as the evidence supports that approach but I observe that the plaintiff may have trouble getting an apprenticeship, no matter how great the demand for apprentices, simply because he has a history of injury. If he is honest with prospective employers he will need to disclose his potential weaknesses. In a competitive market he will be less attractive as an employee. So if he finds himself out of work he may have difficulty getting re-employed. It is likely that his deficiencies will become perfectly obvious in a workplace over time. He is likely to be slower than an able-bodied man. If he chooses to operate his own business then he will need to work longer hours to achieve the same return and even so he may not satisfy his clients or customers with the speed with which he can attend to tasks. As well, as Mrs Coles pointed out, he has an increased risk of injuring himself.

[55] The plaintiff has reported suffering cramping and soreness after working for a very limited time. Full time work with the commercial demands of an employer is a very different thing to being given a “go” for 10 to 15 minutes as work experience.

[56] The parties agree that a self employed diesel fitter can presently earn between $90 and $120 per hour.[18] The current Hastings Deering Enterprise Bargaining Agreement provides for wages for a tradesman at $1,332 per week with substantial increases agreed for the year commencing 1 July 2012 to $1,412 and then $1,497 for 2013.[19] Overtime is available.

[57] The period for which compensation should be provided is in the order of 50 years – from age 18. The 5% discount tables must be applied in considering any future loss.[20]

[58] I observe that if the plaintiff is slower by only one hour in a 38 hour week – about 12 minutes a day – taken up with securing lifting devices, coping with awkward tools, resting a cramped arm, climbing two storey machines a little more carefully, seeking help and so on – a very modest allowance, then if he was self employed he could be losing $90 to $120 per week and the award would be approaching $50,000.[21] That allows nothing for the multiple other risks that ought to be accounted for.

[59] It is said on the defendants’ side that he may get through without loss. That is so. He might never have wished to seek to be self employed, injured or not. He might have benevolent employers to whom time is not money and who will indulge his relative inefficiency. He might avoid injury. But that prospect must be weighed in the balance with the prospect of a very much worse future than my allowance assumes.

[60] That worse future could include various contingencies: most self employed people work a good deal longer than 38 hours and so the lost time might be much more than an hour a week; he will be less likely to pursue overtime if sore at the end of a day or week of work; if his reputation suffered because he was slower then he could lose whole contracts and so a great deal more than I have envisaged; there is presumably a reduced likelihood of obtaining promotions for the less efficient; and if he suffered injury for the reason Ms Coles envisaged then he could be disabled for weeks or permanently.

[61] I would rate the chances of the plaintiff suffering some loss of earnings over his lifetime due to the restrictions and weaknesses that his accident caused injuries have imposed as virtually certain. I would rate his chances of getting by without significant loss as very low and his chances of a worse future than I have assumed as significantly greater.

[62] Obviously I must assess the prospective loss on very imprecise materials. The nature of the case permits no more. Doing the best I can I assess the future loss at $100,000.

Summary

[66] In summary I assess the damages as follows:

Pain, suffering and loss of amenities of life $18,000.00[1]
Future loss of earning capacity $100,000.00
Miscellaneous future expenses $5,000.00
Special damages $775.55
Interest on special damages[22] $37.55
Total Damages $123,813.10

 

Brisbane Barrister – David Cormack



[1] [38] – [42]: Item 97, ISV 10 and increased to 15 to accommodate multiple injuries, but no uplift.

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