Some cases awarding future economic loss beyond the age of 67

General Facts

Mr Roumanos (“the claimant”) was injured in a motor vehicle accident on 21 August 2009. He was driving a truck at the time when a motor vehicle failed to stop and give right of way resulting in a heavy collision.

The claimant was a self employed delivery driver operating primarily with his son in a partnership delivering white goods. At the time of the accident, the claimant was 62.8 years of age and was 66 years at the time of the assessment. The partnership in which the claimant and his son worked ceased trading after the accident because of the claimant’s injuries.

The claim was assessed by Mr Alex Bolton ("the assessor"), who issued a Certificate in accordance with s 94(4) of the MAC Act setting out his findings on the assessment on 16 May 2013, together with his reasons for his decision.

By a Summons filed on 28 June 2013, the insurer as plaintiff sought to set aside the decision and for an order to remit the claimant’s application back to the Motor Accidents Authority of NSW for a fresh assessment.

The Assessor made the following findings with regards to past and future economic loss. The Assessor divided this into three periods:

1.    The first period of a little over 21 weeks immediately following the accident, up to 18 January 2010. The assessor found that throughout this period, the claimant was totally incapacitated for work, and awarded him the sum of $27,394.14.

2.    The second period between 19 August 2010 and the date upon which the assessment was concluded, namely, 16 May 2013. For this period, the assessor determined that a sum of $81,341.70 was an appropriate figure for the claimant’s past economic loss. 

3.    The third period dealing with future economic loss from 16 May 2013 to 31 December 2013. The assessment identified a period up to the claimant’s 67th birthday for the claimant’s future economic loss. In addition, the assessor found that given the very heavy nature of the delivery work, the claimant would have ceased trading by the age of 67 and then taken other less strenuous work that he could obtain to age 70. The sum assessed was $17,097.30.  

Future economic loss and dispute under section 126 of the MAC Act

The insurer submitted that the assessor did not adequately adhere to the terms of section 126 of MAC Act with respect to allowing for future economic loss. The Court went on to consider this issue.

Section 126 reads:

1) A court cannot make an award of damages for future  economic loss  unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future  economic loss  that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future  economic loss , it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

It is useful to note the Assessor had this provision in mind in his assessment when he wrote:

“Section 126 of the Act says that I cannot make an award of damages for future economic loss unless the claimant first satisfies me that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury”

The Court was satisfied with the Assessor’s application of section 126(1) from this paragraph.

The next issue was whether the assessor had set out the assumptions about future earning capacity or other events on which the award was to be based according with the claimant’s most likely future circumstances as required under section 126(3).

On this issue, the Court referred to the Assessor’s findings in paragraph 49 of the report.

“The claimant on my finding must be compensated for his loss from 18 January 2010 to about 31 December 2013. This would take the claimant to age 67. I assess that given the very heavy nature of the delivery work, the claimant would have ceased trading by this time and then taken whatever other, less strenuous, work that he could obtain to  age 70 ."

The Court conceded that the Assessor’s findings were not expressed in the precise terms of the assumptions on which the award was based. Nevertheless, the Court was satisfied that the findings adequately set out the basis of the claimant’s likely future course. On that basis, the requirements under section 126 in setting out the award were met.

1.    The claimant’s injuries gave rise to a total incapacity for work for a period of 21 weeks approximately, until 18 January 2010

3.    The claimant would have worked to about age 67 (at the end of 2013) in the work in which he was engaged at the time of the accident in his own business, and continued to receive income at a level he was earning at the time of the accident. The claimant then would have ceased undertaking the work due to the heavy nature of it and would have continued to engage in whatever less strenuous work he could obtain to age 70.

Walker & Anor v Hamm & Ors, Walker & Anor v Carter & Anor [2008] VSC 596

The plaintiffs, Donald walker and Marcus Walker claimed damages for the alleged assault and battery on 15 August 1993 by two police officers, Graeme Carter and Mark Sesin. The plaintiff, Donald Walker suffered from numerous injuries.

According to a report dated 13 December 1993 by Dr Thomas, in which he examined Donald Walker on 17 August 1993 – approximately two days after the incident, the following injuries were noted:

• a number of bruises and abrasions consistent with an alleged assault.
• three large bruises on his trunk which was consistent with being hit with a baton.
• A large bruise over the medial aspect of his distal (R) thigh and knee

• abdominal tenderness and reduced movement of both shoulders.
• Rib fractures of the eleventh and ninth ribs.

Impact of the incident on Donald Walker’s earning capacity

Donald Walker was born in Tasmania on 10 May 1951. He worked at the ANZ Bank after leaving school. Subsequently he was called to National service. He remained in National Service in 1972 for another six months. On discharge he returned to his employment at the bank and joined the CMF. He continued for some 14 or 15 months. He then made the move into the insurance industry. He left for Melbourne in August 1978 because he believed Melbourne offered better business prospects. He remained in Melbourne ever since continuing to work as an insurance agent. At the time of the incident he was one of the most successful insurance agents working for National Mutual.

Prior to the assault, Donald Walker had earnings of approximately $315,000 per annum and interest in five commercial ventures. As a result of the injuries, he could not carry on his work. His ability to continue with the commercial enterprises was significantly impaired, resulting in significant and continuing loss.

There was evidence indicative of Donald Walker’s performance as an insurance agent prior to the incident. According to National Mutual records as at 15 April 1984, there were 1650 agents in Australia and Donald Walker was ranked fourteenth in Australia. In 1985 he was ranked eleventh nationally.

Although there was evidence that showed Donald Walker recapturing his best performance figures for the years prior to the accident, this was achieved through short term solutions such as churning. Considering the injuries suffered by Donald Walker, namely physical and psychological injuries, the worsening of his physical condition over the intervening years, the effect of heavy medication on him and fatigued condition all suggested that his earning capacity as an insurance agent was severely affected.

Assessment of damages for loss of earning capacity in the future

Counsel for Donald Walker submitted that there were large numbers of self-employed people who remained in the workforce over the age of 65 and there was opportunity for Donald Walker to go much further and longer. Donald Walker had been in the top 1% among 300 agents and 11^th to 2^nd among a couple of thousand agents.

Counsel for Donald Walker assessed Donald Walker’s loss of future agency income as at April 2007, the year of the Court hearing. Counsel assessed a total loss of future capacity. Counsel assessed that Donald Walker would otherwise cease work at age 70.

An issue in this case involved determining the appropriate retirement age for the purposes of assessing future economic loss. The defendants submitted that Donald Walker’s intention to work to 70 was to be rejected. Evidence that most successful salespersons continue in the life insurance industry well after age 70 was criticised as being baseless without any supporting data.

Notwithstanding these contentions, the Court nevertheless accepted that Donald Walker had the capacity to work to age 70. Focusing on the evidence, the Court found Donald Walker to be a person with a very strong work ethic who over the years made the most of his opportunities and excelled in the industry.

The Court concluded that assuming Donald Walker was never injured, there was no reason to doubt he would have not worked until 70. There was a high probability that he would have worked beyond that. The Court found no evidence in the financial records produced that suggested Donald Walker had any substantial assets to fall back on retirement. On the evidence, the Court accepted that Donald Walker was someone who would work, as long as he was able to provide for himself.

This is an interesting case as it highlights that the Court is prepared to accept a person’s working capacity beyond the age of 67, provided there is sufficient and strong evidence to demonstrate a person’s intention to continue to work, without falling back on retirement. Alternatively, this case may have raised the bar on the level of proof required in pointing towards a person’s ability to work beyond 67, as Donald Walker in this case was found to be an exceptional achiever in the insurance industry. Nevertheless, there is no reason why economic loss cannot be awarded beyond the age of 67 provided there is clear, strong and sufficient evidence to justify this assertion.

Bridge Printery Ltd v Mestre [1999] NSWCA 342

In this case, the Court did not conclude that the plaintiff had the ability to work until 70. Nevertheless, the judges in this case offered a good insight into the tests relevant to a person’s retirement age.

Mason J concluded that there is no fixed rule with regards to a person’s age of retirement. It is not necessarily the case that a person is deemed to retire at the age of 65 or 67, even though this is the eligible age for acquiring a pension. On this issue, it is helpful to highlight Mason’s J view:

“A Court may assume without specific evidence that a plaintiff would, in the ordinary course, probably have continued to work in the pattern exhibited before injury until reaching the age at which the age pension became payable (Dykstra v Head (1989) Aust Torts Rep 80-280). But there is no fixed rule. In a particular case there may be a basis for finding that early retirement was likely or that the plaintiff might have continued to work beyond the ordinarily accepted age of retirement. As McHugh J put it in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 24:

There is no reason why the plaintiff’s impairment of earning capacity should be treated as ceasing at the age of sixty-five. However, the financial loss which flows from that impairment in respect of the period beyond age sixty-five is of a different measure from the loss for the period up to age sixty-five.

It will be necessary to look at all the circumstances, including the intentions of the plaintiff, to determine what, if any, post-retirement remunerative activities the plaintiff would probably have engaged in if the accident had not occurred and for how long he would have continued engaging in those activities. Once that has been done, the court must determine the extent to which the plaintiff’s capacity to engage in these activities has been impaired and the loss which flows therefrom”

Similarly, Davies J provided a view that accorded closely with the view provided by Mason J. Davies J also concluded that there is no definition as to the retirement age of a plaintiff when assessing economic loss.

“A finding that an injured plaintiff would have worked beyond the usual retirement age ought not to be made unless there are facts from which an inference can be drawn that probably that would have happened. The age of sixty-five for males is not just an arbitrary age. It is a usual and customary age for employees to retire. Experience has shown that the ability of employees to function at an adequate level beyond that age tends to be much reduced, particularly if any physical work is involved.”

Although this case is dated back to 1999, it nevertheless highlights the perspective of the Court on the issue of retirement age. The significance in the Judges’ reasoning is that there is no fixed rule as to a person retiring at age 65 when assessing economic loss. A person’s earning capacity can be asserted beyond the pension age of 67 and there is no bar to a person claiming for future economic loss past the eligible pension age of 67.