Australia: Road blocks to challenging future economic loss on appeal

Focus: RACQ Insurance Limited v Brennan [2013] QCA 150
Services: Insurance
Industry Focus: Insurance


The decision in RACQ Insurance Limited v Brennan [2013] QCA 150 is a reminder that an appeal court will be reluctant to interfere with a trial judge's assessment of damages unless the assessment meets the rigorous test of being "a wholly erroneous estimate of the damage suffered".

The appeal concerned the calculation of future economic loss and the interpretation of medical evidence relevant to the assessment.

At first instance

At trial, the respondent sued the appellant for personal injuries after a motor vehicle collided with her as she made her way across a marked pedestrian crossing in April 2009.

The Court found that the respondent's injuries had prevented her from returning to work as a locomotive driver at the Proserpine Sugar Mill until late June 2009.

In the 2012 financial year the respondent earned around $800 net per week in this role.

The Court found, as a consequence of the respondent's residual disabilities, that she would be unlikely to realise her ambition of progressing to the role of a locomotive driver with another company or within the mining sector where substantially higher income could be earned, and pursue the types of careers in that sector that her former colleagues had (earning, in the case of one of the respondent's former subordinates, $3,600 per week).

Consequently, the Court awarded the respondent $528,925.56 in damages, including $411,000 for future economic loss (calculated on the basis of a net loss of $500 per week over 30 years to retirement age), to reflect the loss of chance.

The appeal

The appellant appealed the decision. The appellant submitted that the decision should be overturned as the damages awarded, particularly in respect of future economic loss, were manifestly excessive considering the respondent's work history and lack of previous efforts to obtain higher earning positions.

The appellant also argued that, as there was pre-existing degeneration in the respondent's shoulder, the incident would not have been the cause of the respondent being prevented from moving into higher paying work in the future.

The appeal was unanimously rejected by the Court of Appeal.

In Chief Justice de Jersey's reasons for the decision, which were adopted by Muir J and Mullins J, his Honour confirmed that the trial judge had interpreted the medical evidence in a fashion that was reasonably open and not in a manner that was inconsistent with facts established by the evidence.

His Honour found the assessment of damages relating to the reduced earning capacity was not manifestly excessive, allowing for the extent of the respondent's whole person incapacity, noting that the weekly loss of $500 adopted was about 36% of the earnings of her former subordinate colleague ($3,600) and noting the demand for such roles in the mining sector.

Chief Justice de Jersey also found the trial judge adequately evaluated the loss of chance given the necessary uncertainties around that.

Chief Justice de Jersey reiterated that an appeal court will be slow to reverse a decision of the trial judge on questions of quantum. His Honour confirmed the trial judge's findings and found them on a factual basis reasonably open, and stated they were not an example of a wholly erroneous estimate of the damages.


This decision provides a cautionary reminder that appeal courts will be hesitant to interfere with quantum assessments by a trial judge.

In particular, it reinforces that where the means by which a trial judge assessed ongoing loss can be plainly identified and medical evidence has been reasonably interpreted, the appellate court will not be satisfied that the onerous requirements for intervention of a "wholly erroneous estimate" or "glaringly improbable" interpretation of facts will be met.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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