Christopher Damien Layt v Rubie Marhaba [1995] ACTSC 105 (14 September 1995)

SUPREME COURT OF THE ACT

CHRISTOPHER DAMIEN LAYT v. RUBIE MARHABA
No. SC907 of 1992
No. SCA20 of 1995
Number of pages - 4
Damages

COURT

IN THE FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ, GALLOP AND HIGGINS JJ

CATCHWORDS

Damages - personal injury - appeal from the Master.

Damages - assessment - award for past and future loss of income or earning capacity - discretionary nature of award in case of young person - no error in judgment found - award not excessive.

Devries and Anor v Australian National Railways Commission and Anor [1992] HCA 41; (1993) 177 CLR 472 Todorovic v Waller (1981) 150 CLR 403 House v R [1936] HCA 40; (1936) 55 CLR 499 Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190 Paul and Anor v Rendell (1981) 34 ALR 569 (PC) Gamser v Nominal Defendant [1977] HCA 7; (1976) 136 CLR 145

HEARING

CANBERRA, 18 July 1995
14:9:1995

Counsel for the Appellant: Mr G Richardson, SC
Instructing Solicitors: Mallesons Stephen Jacques

Counsel for the Respondent: Mr G Stretton

Instructing Solicitors: Snedden Hall and Gallop

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent's costs.

DECISION

MILES CJ, GALLOP AND HIGGINS JJ This is an appeal from a decision of the Master, handed down on 24 February 1995, to award to the respondent/plaintiff damages for personal injury in the sum of $273,081.00.

2. The appellant/defendant complains that the award for past and future loss of income or earning capacity, was excessive.

3. The collision in which the plaintiff was injured occurred on 28 March 1991. The Master's factual findings as to the way in which the accident happened and the injuries sustained by the plaintiff are not challenged.

4. She suffered, as a result of those injuries, chronic pain syndrome, related to post traumatic stress disorder with some evidence of a posterior intervertebral disc bulge at L5/S1.

5. It was contended that the Master had failed to make sufficient allowance for the plaintiff's intermittent work history in awarding damages for loss of income or earning capacity.

6. The plaintiff was born on 25 December 1970. She commenced work in September 1989 after completing secondary school. She was employed by the Hyatt Hotel as a waitress until 4 July 1990. The defendant contended that she left because of her unsatisfactory work performance. The Hyatt's records suggested that, whilst the plaintiff was considered competent, she had been guilty of certain disciplinary breaches. Her employment was terminated accordingly.

7. Although the plaintiff presented that period of employment in a more favourable light in the course of her evidence, the Master, whilst not persuaded that the plaintiff was deliberately fabricating, did not accept that more favourable version.

8. In September 1990, after a planned holiday of two months, the plaintiff gained employment as a waitress at Hayman Island.

9. That employment was interrupted by the accident. Before the accident she had been twice warned about disciplinary breaches, once for being late and once for relying on others to perform some of her duties. There were, therefore, two lapses over the six month period prior to the accident. The employer had a policy of dismissal for a third breach.

10. After the accident, the plaintiff was on sick leave for two weeks. She resumed work in April 1991. She said that the effects of her injuries caused difficulty for her in performing her duties. Her supervisor noticed no apparent difficulties. The plaintiff received another warning in November 1991, for lateness, another disciplinary breach. She was invited to resign and agreed to do so. Again, her perception of that event was that it was only her injuries which rendered her work performance unsatisfactory. The Master, again, was not persuaded that she would, but for the accident, have continued to be employed at Hayman Island. He accepted that if she had not resigned, she would have been dismissed and that such a result might well have followed whether she had been injured or not.

11. Notwithstanding that, her supervisor on Hayman Island gave evidence that he regarded the plaintiff as "a very good waitress, really" and a "good employee" notwithstanding her occasional disciplinary lapses.

12. She then gained employment with M.I.L. Security Co. as a receptionist and clerical assistant commencing 21 January 1992. That employment was terminated after eight weeks on 17 March 1992. She was told that she was being dismissed to make way for the proprietor's brother. However, her employer expressed the opinion that her attitude to the job was poor. He said that was the real reason for termination, although he had told the plaintiff she was simply being replaced by his brother.

13. She subsequently obtained employment similar to that with M.I.L. Security from time to time. She had suffered periods of unemployment totalling about 13 months during a period of about two and a half years. As at the date of the hearing, she was employed part-time at the Southlands Fitness Club. It appeared that she had a relationship with the proprietor. He gave evidence that her work capacity appeared to him to be limited by the effects of her injuries.

14. It was the Master's view that, although the plaintiff was less than reliable as a witness that assessment did not imply,

... that she was not good at her job, or, that she had an insecure
future in the hospitality industry.

15. The Master identified the real issue as being whether the plaintiff had really suffered the disabilities of which she complained both in her evidence and to various doctors. The defendant had suggested that her presentation was, at least to a substantial degree, fabricated. It was open to the Master, having duly noticed the legitimate criticisms of the plaintiff's evidence, to have accepted her complaints as genuine. That was the finding which the Master made.

16. That finding was based upon the Master's assessment, not only of the plaintiff as a witness but also of those witnesses who gave evidence supporting the plaintiff's claimed level of disability.

17. It was the Master's assessment of the plaintiff, notwithstanding her perceived unreliability as a witness, that "since the accident she has worked as often as she could". It may be assumed that meant that she worked as much as her disabilities permitted her to do.

18. It is not open to this Court to set aside those findings unless it forms the view that they are "inconsistent with facts incontrovertibly established by the evidence" or based on evidence which was "glaringly improbable": see Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472, 479 per Brennan, Gaudron and McHugh JJ.

19. The Master's findings as to the plaintiff's level of disability and her pre-accident work history do not warrant any such criticism. It is not appropriate for this Court to adopt a contrary view.

20. The Master calculated the plaintiff's net earnings between accident and judgment, had she not been injured, at $60,000.00. Had she been employed full-time in the hospitality industry, the actuarial evidence, which was not challenged, was that her net earnings up to 7 November 1994 would have been $64,340.34. The plaintiff's further potential net earnings up until the date of the Master's decision, assuming the net earning rate per week adopted by the Master of $350.00 (she had been earning approximately $380.00 per week net at Hayman Island), would have been at least $5250.00. Therefore, the Master, in allowing potential past earnings at $60,000.00 net was discounting the past earnings figure theoretically open, had the plaintiff been continuously employed, by approximately 15%. That is a reasonable discount to reflect the Master's finding that, but for the accident,

... she would probably have travelled to other positions, with some
breaks in between.

21. That assessment does not seem to have been an unsound exercise of discretion. The figure for actual earnings was deducted from the potential earnings figure of $60,000.00 so as to reflect appropriately the past loss of net income which then was awarded.

22. As to loss of future earning capacity, the Master calculated that, if the plaintiff's current rate of earnings of $100.00 net per week represented her then current future earning capacity, there was, accordingly, a net loss of $250.00 per week. That represented a loss of $305,938.00 if calculated according to the High Court's decision in Todorovic v Waller (1981) 150 CLR 403 for a 40 year period. In 40 years the plaintiff would have attained her 64th birthday but two months previously.

23. It was appropriate, of course, for that figure to be discounted at least for usual contingencies. The Master recognised that. He said,

There must be taken into account the possibilities that she might
not have been in constant employment, that she might not have worked
to anything like the age of 65, that she may, in 5, 10, or 15 years
recover to the point where she could work full time again at some
suitable form of employment, and the usual contingencies of life.

On the other hand, it is obvious that there will be a substantial
diminution in her income earning capacity for a substantial period,
and some diminution for the whole of her working life.

24. Counsel for the appellant did not suggest any matter of substance which the Master had failed to consider. The weight to be given those various factors was a matter of discretionary judgment. There being no apparent error in that judgment, this court should not substitute its view unless the sum awarded is so far beyond the exercise of sound judgment as to be unreasonable: see House v R [1936] HCA 40; (1936) 55 CLR 499; Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190; Paul v Rendell (1981) 34 ALR 569(PC); Gamser v Nominal Defendant [1977] HCA 7; (1976) 136 CLR 145.

25. An award is not unreasonable merely because it is substantially greater than the members of the appellate court individually or collectively would have awarded.

26. The Master discounted the total value of loss of future earning capacity by slightly more than 50%, awarding only $150,000.00. Whilst, no doubt, even this sum could be seen as generous, both in the favourable findings of fact underlying it and the sum itself, it is not manifestly excessive.

27. In consequence, we dismiss the appeal with costs.