Read the full judgment text of on BabelCite. was delivered on 11 November 1998 before Mortimer VP, Wong JA, Le Pichon JA.
Personal injury – assessment of damages – pre-existing degenerative spinal condition – discount for pre-existing condition – future loss of earnings – multiplier – workplace accident – carpenter – construction site – appeal against quantum – The plaintiff, a carpenter, sustained back injuries in two workplace accidents on 25 June 1988 and 6 September 1988 while employed by the defendant during the construction of the Conrad Hotel – He had a pre-existing degenerative condition of the spine which was symptomless until the accidents – The trial judge (Deputy Judge Woolley) found the defendant fully liable and exonerated the plaintiff from contributory negligence – The plaintiff complained of total disability, but the judge found he was exaggerating, supported by a video showing him walking normally, and concluded he was disabled for any work for one year, then fit for light work only – The judge found that, absent a further accident, the plaintiff's pre-existing condition would probably have forced him to give up his heavy pre-accident occupation by age 55 – Applying the approach of Fisher J in Jason v Batten (1930) Ltd [1969] 1 Lloyd's Rep 283 and Findlay J in Cheung Fat Tim v Wong Siu Ming HCA 5079/1991 (unreported), the judge applied a 45% discount to general damages and pre-trial loss of earnings, and a 75% discount to future loss of earnings, awarding total damages of $535,383.38 after deduction of an employee's compensation award – Whether the trial judge erred in principle in taking 3.5 years as the multiplier for future loss of earnings for a man aged 53–54 at trial – Whether the 75% discount applied to future loss of earnings was consistent with the 45% discount for the pre-existing condition applied to other heads of damage – The Court of Appeal held that the trial judge erred in principle: deriving a multiplier of 12 years at the time of the accident at age 45 and subtracting the elapsed 8.5 years was the wrong approach; the correct multiplier for a man aged 53–54 on the same basis would be about seven years, and after a further reduction for the inherent risks of heavy construction work, the appropriate multiplier was not less than five – The 75% discount on future loss was inconsistent with the 45% discount for the pre-existing condition applied to general damages and pre-trial loss, and the figure was rectified to 45% to maintain consistency with the judge's original careful assessment – The Court of Appeal also corrected the employee's compensation figure from $439,749.68 to $425,449.68 – The appeal was allowed; the award for future loss of earnings was reassessed at $404,910 (continuing loss of $12,270 per month x 60 months, less 45%), giving total damages of $1,251,208.06 – After deduction of the corrected employee's compensation of $425,449.68, the net judgment sum was $825,758.38, substituted for the trial award of $535,383.38 – Costs of the appeal were ordered to the plaintiff, nisi, to be taxed if not agreed
Legal issues: Multiplier for future loss of earnings · Consistency of discount for pre-existing condition
Outcome: Appeal allowed; award for future loss of earnings reassessed; net judgment sum increased to $825,758.38 after correction of employee's compensation figure.
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