McKay v Palmers Removalists & Storage Pty Limited  NSWCA 83 (20 April 2010)
In this matter the court was asked to consider whether work experience gained by an appellant after the injury should impact on his claim for future economic loss. The appellant obtained the necessary qualifications to become an interstate truck driver post-injury. He submitted that his future economic loss claim should be assessed on the basis of those earnings, rather than on the basis of his pre-injury job as a removalist.
The Court held that in assessing future economic loss, it was necessary to assess the degree of probability that had the appellant been uninjured, he would have exercised his earning capacity as an interstate truck driver, in accordance with the principles laid down in Malec v JC Hutton Pty Limited  HCA 20.
On 19 August 2005, the appellant was injured whilst carrying a marble table top, weighing approximately 100kg, in the course of his employment with the respondent as a furniture removalist. The appellant injured his neck, arm and back.
At the time of the injury, the appellant was 28 years old. His job required the appellant to hold a heavy combination (HC) licence.
The appellant's submission was that prior to his accident, he had plans to obtain a multiple combination (MC) licence, so as to do long-haul interstate driving and obtain a better future earning capacity. It was also his submission that prior to the accident he had made enquiries about obtaining the MC licence, which required him to undertake a two-day course at a cost of $1,100.
However, given the cost of the licence, he conceded that it would have taken to at least 2006 to save enough money to complete the course and obtain the licence. The injury then intervened.
Following the injury, the appellant secured alternate employment with JMA Brothers, undertaking interstate car-carrying work. The job required the appellant to hold a MC licence. JMA Brothers paid for the appellant to obtain the MC licence, which he did in January 2006. The appellant said he had difficulties driving the truck and with loading and unloading the truck. The appellant resigned from his employment with JMA Brothers after two weeks, citing ill health as a result of the injury sustained whilst employed by the respondent.
At hearing, there were issues raised as to whether the appellant had in fact resigned because his employment with JMA Brothers required him to be away from home for extended periods of time.
NSW District Court Judgment
At trial, it was not contested that the appellant was not capable of returning to his pre-injury employment as a furniture removalist / truck driver in an unrestricted capacity. Nor was it in dispute that the appellant had an MC licence and the rates of pay with respect to same were higher than for HC licence holders.
Gibson DCJ noted that the appellant failed to report to the vocational assessor that he wanted to be an interstate truck driver. When questioned about his job preferences he could not identify any preferences for work and appeared disinterested in further study to improve his job prospects. Gibson DCJ also felt that the appellant resigned from his job with JMA Brothers because it required him to be away from home for three months.
As such, Her Honour considered that the appellant's work intentions were to remain in the removalist trade, and assessed future economic loss on that basis.
Gibson DCJ found the respondent negligent and assessed damages in the sum of $372,699.33, comprised of: past economic loss of $124,987.58; future economic loss including superannuation of $234,867.75; and Fox v Wood of $12,844.00.
The decision was appealed on the basis that Her Honour erred in two respects. Firstly, in relation to Her Honour's reliance on the fact that the appellant had failed to tell the vocational assessors of his intention of becoming an interstate truck driver, and secondly, on the basis that the appellant's future economic loss should be assessed in accordance with the principles of Malec. That is: 'where proof [of an event] 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 Court of Appeal upheld the appeal on both grounds. It being found there was evidence that the appellant had disclosed his pre-injury intention of obtaining an MC licence.
In relation to the second ground, the Court of Appeal stated that the trial Judge, although not required to accept the appellant's evidence of intending to obtain a MC licence, was required to consider it. The appellant was not cross examined on being untruthful, nor was he cross examined on not being prepared to be away from home for extended periods of time. The appellant's evidence was unchallenged, and as such, the trial Judge was required to assess the degree of probability that, had he been uninjured, the appellant would have exercised his earning capacity as an MC licenced driver.
The appellant's claim was remitted to the District Court for reassessment of future economic loss.
This decision serves as a reminder that in the assessment of future economic loss, it is necessary to consider any reasonable assertions made by the plaintiff as to intentions to improve future earning capacity. It is necessary to investigate what steps a plaintiff has undertaken towards an alleged new vocation. Where there is a chance of, and evidence to support, the plaintiff achieving that outcome, economic loss win may be assessed on the basis of that chance before then being adjusted to reflect the degree of probability of it being achieved.
The decision is not inconsistent with the High Court's recent decision in Tabet v Gett  HCA 12. It is not recognising loss of chance as a cause of action. Rather, the decision applies Malec. That is, once liability is established, the Courts are required to assess the probability of what would have occurred, but now cannot occur.
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