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- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Towers v Hevilift Ltd (No 2)  QSC 77
SC 180 of 2009
Supreme Court at Cairns
15 April 2020
24, 26 and 27 February 2020
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff was the pilot in a helicopter crash caused by the negligence of the defendant – where liability determined at previous trial – where quantum in issue – where dispute as to plaintiff’s life expectancy – whether evidence of expert medical witness based on published actuarial evidence establishes life expectancy – whether appropriate to take into account further deduction to life expectancy on the basis of the medical expert’s opinion about individual plaintiff’s conditions
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff was competent but not exceptional helicopter pilot – where plaintiff was working as a helicopter pilot in the PNG Highlands – whether plaintiff would have continued to work until 70 – whether plaintiff would have advanced in his career – whether plaintiff would have continued to work with the defendant or returned home to Australia
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGE – where plaintiff claims damages for household maintenance costs – where plaintiff claims damages for mowing and gardening – where evidence consists of two tax invoices and minimal oral evidence – where plaintiff claims expenses for household cleaning – where plaintiff’s evidence of cleaning amounts to no more than an estimate – where no documentary evidence of cleaning - whether conservative approach should be adopted
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – OTHER MATTERS – where defendant contends there should be a discount of 10 per cent on damages awarded for recurrent future expenses for vicissitudes – whether 10 per cent appropriate figure in the context of grave injuries and risk of undercompensation
Bevan v Wagner Industrial Services Pty Ltd  2 Qd R 542;  QCA 246, cited
Black v Lipovac (1998) 217 ALR 386, cited
Bresatz v Przibilla (1962) 108 CLR 541, considered
Gerrard v Royal Infirmary of Edinburgh NHS Trust 2005 1 SC 192, applied
Golden Eagle Trading v Zhang (2007) 229 CLR 498, cited
Hevilift Ltd v Towers  QCA 89, cited
Jones v Dunkel (1959) 101 CLR 298, applied
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, cited
Minchin v Public Curator of Queensland  ALR 91, cited
Nunan v Gerblich (1974) 10 SASR 39, cited
Robert Bax & Associates v Cavenham Pty Ltd  1 Qd R 476;  QCA 177, cited
Schiffman v Jones (1970) 92 WN (NSW) 780, cited
Sherwood v Guneser (1992) 110 FLR 459, cited
Thurston v Todd  1 NSWR 321, applied
Towers v Hevilift Ltd & Anor  QSC 267, cited
H Luntz, Assessment of Damages for Personal Injury and Death (LexisNexis, 4th ed, 2002
G Mullins with L Neil for the plaintiff
T Matthews QC for the defendant
Slater & Gordon Lawyers for the plaintiff
Miller Harris Lawyers for the defendant
- On 20 April 2006 the plaintiff Mr Towers was piloting a helicopter for the defendant’s business in the Papua New Guinea highlands when it unexpectedly became enveloped in cloud and crashed. Mr Towers was rendered an incomplete quadriplegic. He sued the defendant in negligence, alleging the defendant had failed to adequately warn of the danger of rapid cloud envelopment in the locality in question.
- The liability component of the case was tried in 2016. On 17 November 2016 I gave judgment for the plaintiff against the defendant (formerly the first defendant) for damages, to be assessed.
- The further component of the trial, to assess the quantum of damages, has finally been heard. The parties agree the law applicable to the assessment of quantum in this case is the law of Papua New Guinea but do not suggest that law is materially different from the common law of Australia.
- Many aspects of the assessment have been agreed between the parties. Before making the final assessment, it remains to determine:
- life expectancy;
- economic loss; and
- household maintenance costs.
- Mr Towers was born on 27 September 1950. He was 55 at the time of the crash and is now 69. The assessment of how many more years he is likely to live bears upon the calculation of future care and assistance and future special damages.
- There are two obvious potential sources of evidence of life expectancy. One is medical opinion founded upon the medical condition of the individual plaintiff. The other is actuarial opinion founded upon statistical information about the death rates of the broader populous, commonly expressed in the form of life expectancy tables.
- The Australian Bureau of Statistics’ (“ABS”) life expectancy tables have come to be so widely accepted that judicial notice has been taken of them. In this case the parties accepted their use without requiring evidence of them. However, the parties do not agree on to what extent, if any, Mr Tower’s life expectancy should, on account of his medical condition, be adjudged lower than his life expectancy calculated according to the ABS life expectancy tables.
- Mr Towers’ counsel submits Mr Tower’s life expectancy should simply be determined by reference to the ABS life expectancy tables for a male born in 1950. That expectancy, accepted by Mr Tower’s counsel as accurately stated in the report of the defendant’s expert Dr Peter McCombe, is that Mr Towers will live another 16.7 years (“the ABS life expectancy”).
- The defendant relies upon the evidence of Dr McCombe, a consultant orthopaedic surgeon, to contend for a lower life expectancy. Dr McCombe opined that those with permanent spinal cord injury (“SCI”) average a lower life expectancy than the general populous. I accept that unremarkable and unchallenged aspect of his opinion, which was well supported by publications he cited.
- It is thus unsurprising that Dr McCombe had regard to the average mortality experience of sufferers of permanent spinal cord injury in formulating his opinion. He relied upon an article by Middleton et al, “Life expectancy after spinal cord injury: a 50-year study” (“the Middleton article”). Dr McCombe opined, by calculations founded upon that article, that a male of Mr Towers’ age and level of SCI would ordinarily live another 11.8 years (“the Middleton/McCombe life expectancy”).
- More controversially, Dr McCombe opined the Middleton/McCombe life expectancy should be further reduced, to 9.8 years (“the McCombe life expectancy”), to make allowance for extra risk posed by specific conditions arising from Mr Towers’ tetraplegia (another word for quadriplegia).
- There are three main issues to be resolved in respect of Mr Towers’ life expectancy:
- Should Dr McCombe’s opinion based on the Middleton article be taken into account additionally to ABS life expectancy information to determine Mr Towers’ life expectancy?
- To what extent, if any, should the life expectancy determined by taking account of the Middleton article be further reduced on account of Mr Towers’ individual medical problems?
- If Dr McCombe’s opinion based on the Middleton article should be taken into account, what life expectancy should be attributed to Mr Towers for the purposes of assessing damages?
Issue 1: Should Dr McCombe’s opinion based on the Middleton article be taken into account additionally to ABS life expectancy information to determine Mr Towers’ life expectancy?
- Mr Towers’ counsel submitted there should be no lowering of the ABS life expectancy because it is already founded on a data set including people with permanent spinal cord injuries. I reject that reasoning. It ignores that the ABS life expectancy represents the predicted average mortality of a general populous. It would inevitably indicate a longer life expectancy than the average for the relatively small proportion of that populous represented by sufferers of permanent spinal cord injury.
- Mr Towers’ counsel submitted in the alternative that, if there is to be a reduction from the ABS life expectancy, the Middleton/McCombe life expectancy involves too great a reduction. It was submitted no weight should be attached to Dr McCombe’s opinion founded upon the Middleton article. This was said to be because there were anomalies in the article and Dr McCombe did not have the expertise to explain them.
- Dr McCombe’s evidence was premised on the reliability of the Middleton article. It was implicit in his use of the Middleton article that it is, in his opinion, a reliable work.
- In calculating the Middleton/McCombe life expectancy Dr McCombe imported the current ABS age-related mortality rates and adjusted them by application of age-specific standardised mortality ratios (“SMRs”) for patients with permanent spinal cord injuries. Those SMRs derived from the Middleton article.
- The methodology for the study on which the Middleton article reported was, in summary:
“Data for patients with traumatic SCI admitted to a spinal unit in Sydney, Australia between January 1955 and June 2006 were collated and deaths confirmed. Cumulative survival probability was estimated using life-table techniques and mortality rates were calculated from the number of deaths and aggregate years of exposure. Standardised mortality ratios (SMRs) were estimated from the ratio of observed to expected number of deaths. Life expectancy was then estimated using adjusted attained age-specific mortality rates.”
- The SMRs appear in Table 5 of the Middleton article. Table 5 sets out various level of injury categories against which a variety of age-bracketed mortality ratios appear. The injury categories are headed:
- C1-C4 ABC,
- C5-C8 ABC,
- T1-S5 ABC,
- All D
- Dr McCombe explained when using Table 5 he adopted the C5-C8 ABC category of injury as the descriptive category most closely matching Mr Towers’ incomplete quadriplegia. Dr McCombe explained Mr Towers’ incomplete tetraplegia involves complete paralysis of his lower limbs and partial paralysis of the upper limbs. He noted some sensory and motor neuronal transmissions survived at the level of impact of the injury at the spine’s C5-6 level but no transmission occurred further down. It follows his selection of the “C5-C8 ABC” category in Table 5 as the source of the relevant SMR is uncontroversial.
- Perusal of the Middleton article demonstrates the methodology of the study and analysis on which it reported involved actuarial and medical expertise. Half of the article’s six authors were actuaries and half were medical experts. Dr McCombe’s calculation of the Middleton/McCombe life expectancy involved an application of his medical expertise, particularly the identification of Mr Towers’ level of injury. It also involved some cross-discipline understanding, going beyond lay knowledge, of the requisite process of mathematical calculation. However, Dr McCombe is not an actuary, with the consequence that when cross-examined on some alleged anomalies in the Middleton article he was not qualified to proffer a fully informed response.
- Before addressing the submission about those alleged anomalies and Dr McCombe’s difficulty in explaining them, it is relevant to note the way in which the evidence on this issue came before the court. None of the articles referred to in Dr McCombe’s report were annexed to it when the report was tendered by the defendants and admitted as an exhibit. Nonetheless, it would have been readily apparent to the plaintiff’s lawyers from the report’s content that Dr McCombe’s opinion was founded in a material way upon the Middleton article. There was no objection to the admissibility of Dr McCombe’s expert report on the ground it lacked demonstrable foundation or relied upon the expertise of and data gathered by experts, namely the authors of the Middleton article, who were not expert witnesses in the proceeding. Moreover, any reservations as to a want of apparent evidentiary foundation for Dr McCombe’s evidence were rendered academic when the plaintiff’s counsel, during cross-examination of Dr McCombe, tendered the entirety of the articles referred to in Dr McCombe’s report. The eight articles, which included the Middleton article, were admitted into evidence as a single exhibit on their tender, the plaintiff’s counsel indicating he would be asking Dr McCombe about all of them. In the end result he only cross-examined Dr McCombe about three of the articles, but the Middleton article was one of them and it featured prominently in that cross-examination.
- Having both exhibited and cross-examined upon the Middleton article the plaintiff’s counsel chose not to argue that Dr McCombe’s opinion in reliance upon the article lacked evidentiary foundation. Rather, counsel’s approach was to argue the article contained anomalies Dr McCombe could not explain, with the consequence no weight should be given to his opinion, founded as it was upon the Middleton article. Some reference to the Middleton article is necessary in considering that argument but it should be borne in mind it is not for the court to embark upon its own interpretation of the article – that interpretative task was for the expert to perform. The focus of present attention is the weight to be attributed to Dr McCombe’s opinion to the extent it is founded upon the Middleton article.
- Argument focussed upon alleged anomalies in Table 5 of the Middleton article. The plaintiff’s counsel highlighted in cross-examination of Dr McCombe, and in closing submissions, that the so-called “central estimate” of the SMR for persons in the C5-C8 ABC category in Table 5 appears to suggest a worse survival rate than for persons in the C1-C4 ABC category. For instance, in the age categories 60-69, 70-79 and 80-89 the central estimate SMRs for the C1-C4 ABC category are 3.6, 2.0 and 1.1 respectively, whereas for the C5-C8 ABC category they are 4.7, 2.2 and 1.6 respectively. A similar anomaly is reflected in the 20-29 and 50-59 age brackets. These appear to be anomalies in that they are inconsistent with the medical expectation that, because the C1-C4 ABC category involves a more serious level of injury than the C5-C8 ABC category, it should average a higher SMR than the C5-C8 ABC category. Dr McCombe held that expectation, which was also consistent with the findings in another article to which he referred, “Long-term survival after traumatic spinal cord injury: a 70-year British study” by De Vivo et al.
- Cross-examination on the seeming anomaly that central estimate SMRs in the C1-C4 ABC category are lower than the C5-C8 ABC category for the aforementioned age brackets, included the following exchanges:
“That data is entirely inconsistent with your experience – your clinical experience that we discussed before in the De Vivo case that C5 to C8 had a lesser risk of dying than a C1 to C4 tetraplegia?---So you’re talking about the central estimate or the number of deaths.
The central estimate?---The central estimate. Yes, and thank you for pointing that out in the – in the spreadsheets that you sent to me overnight and I agree that it appears to be inconsistent, and I’ve thought what would be the reason and I can’t say that I can give you a terrific answer except to point out that we’re dealing with ratios, not numbers and not percentages. So if the ratio – the central estimate changes in a way that you would think would be counterintuitive. I would accept that, but nevertheless we’re dealing with a ratio and it could be that there is a higher or lower number of deaths that have occurred in the past in that age group because of the point you were making before.
So if we could just work through the central estimates. For C1 to C4, 20 to 29, central estimate’s 5.4. C5 to C8 it’s 6.4, which is again an – it appears to be an anomaly in the context of your clinical experience. The next one is 30 to 39, 8.3 for the central estimate for C1 to C4 compared to 4.8 for C5 to C8. That would be consistent with your clinical experience and research wouldn’t it? … Now, that’s consistent with the fact that the risk of a C1 to C4 dying earlier is going to be higher than a C5 to C8 dying earlier, isn’t it?---Just pose that to me – question again. You are comparing the C1 to C4 to the C5 to C8, central estimate of standardised mortality ratio at aged 30 to 39. Am I correct in---
Yes?--- ---what you were just saying? And that does suggest – well, what that says is a standardised mortality ratio is higher in the C1 to C4 than the C5 to C8. That’s correct.
Then 40 to 49 is – 9 is the central estimate for C1 to C4, and 5.3 is the central estimate of C5 to C8?---Yes.
At 50 to 59 it’s 4 for C1 to C4 and 5.4 for C5 to C8?---That’s correct.
That’s a little surprising that the C5 to C8 has a higher [central estimate] in that range of 50 to 59; you agree?--- …[Y]es, well, I do see the apparent anomaly, yes.
Yes?---I would accept that there is an apparent – something that requires an explanation. Yes, I accept that.
And you can’t give that explanation because (a) you’re not a statistician and (b) you didn’t create the data?---Well, that’s correct.
Can I suggest---?---But I did consider some possibilities and because it’s a ratio it could be consistent with the fact that death[s] are occurring earlier than later – earlier or later in that particular bracket of patients for reasons we don’t understand, but I do accept that there is an apparent anomaly---
Can I suggest---?--- ---and the anomaly – the anomaly is probably best understood in terms of the ratio. Standardised mortality ratio reduces with age in all patients and that would initially appear to be counterintuitive, but it does so because the natural death rate in the population catches up with the death due to the particular condition of paraplegia. So I just exhibit some caution in drawing conclusions from ratios rather than raw data.
Just---?---You started this argument by looking at survivorship curves which is raw data. We’re now delving into ratios of one divided by another and you can get some unusual mathematical results.
The point about the ageing population, though, is really counter to what the research has found. If you look at the bottom of page 808 [of the Middleton article] in the four lines down in the text it says: A consistent trend of reduction in SMR with advancing age was evident?---Which is what you would expect.
Yes?---It’s expected because it’s a ratio because the – when you’re a young person there’s very little reason for you to have – a young person’s mortality is lower than an older person’s mortality, and the extra mortality with advanced age with a perhaps continuing added mortality from your spinal cord injury you expect the ratio to go down. …
Well, if – on your calculation of life expectancy that appears in exhibit 57 it’s the reality, isn’t it, that Mr Towers’ life expectancy as a C5-8 tetraplegic is worse than a C1 to C5 tetraplegic based upon your calculation?---That is what the calculations say.
Yeah, and it would be significantly worse?---By some years, yes.
And that just does not make sense, does it, that he would have a worse life expectancy than a C1 to C5 tetraplegic?---I honestly don’t know. On the face of it it does seem unusual, but I go back to my point about we’re dealing with life expectancy calculated on standardised mortality ratios and an explanation would be that most people who were going to have died from their C1 to C4 injury have already died. So I do accept the point that there is an apparent discrepancy … that requires some explanation. One observation is simply to say that the actuarial data has been collated by this, has been presented like this and that’s the way it’s meant to be used and you could argue that the actuarial consultants who collected this data, and that’s how it was performed, are wrong, or you could simply use it. There are other potential explanations that I cannot fully grasp, but one is that people who are already going to die in the more high risk age groups have already done so …
Can I suggest to you there’s another explanation and that goes back to the purpose of the data is that it focussed on admissions to spinal cord injury units and what it’s designed to do is to assist in the calculation of a life expectancy soon after the injury so that insurers or families or whoever can plan for the future. That’s what this data of Middleton is for?---I don’t believe so, no.
I also gave---?---Because the data, because the data involves follow-up from – all spinal injury units keep registries of deaths and this data is calculated based on death occurring at any time. So whatever the reason that it’s calculated for, it’s calculated from deaths that occur at all time points.” (emphasis added)
- In summary, Dr McCombe:
- (a)conceded it was an apparent anomaly that the central estimate SMRs in the C1-C4 ABC category are lower than the C5-C8 ABC category for age brackets including Mr Towers’ age;
- (b)conceded the apparent anomaly required explanation;
- (c)posited as a possible, but not necessarily the only, explanation that more people in the C1-C4 ABC category die earlier, resulting in a more favourable mortality ratio vis a vis the general populous than for those in the C5-C8 ABC category.
- These are important qualifications to Dr McCombe’s opinion founded upon the Middleton article. It does not follow from them that Dr McCombe’s opinion founded upon the Middleton article should be given no weight. Dr McCombe’s concessions were reasonable. However, his concessions herald a need for caution regarding the accuracy of the Middleton/McCombe life expectancy.
- It may be that Dr McCombe’s posited possible explanation is correct, although it would not explain similar anomalies in some younger age brackets. In any event it was implicit in the delivery of his explanation that the provision of a reliable explanation was beyond his field of expertise. The explanation, which he conceded was required, would have needed to address whether Middleton et al made adequate allowance for any distorting effect upon later year SMRs of a proportionately earlier numbers of death occurring in the C1-C4 ABC category. It would also need to have explained the anomalies in some younger age brackets. In the absence of further expert explanation the above qualifications preclude acceptance of the accuracy of the Middleton/McCombe life expectancy.
- The upshot is I am satisfied Dr McCombe’s opinion based on the Middleton article should be taken into account additionally to ABS life expectancy information to determine Mr Towers’ life expectancy. His evidence satisfies me that Mr Towers’ life expectancy is likely materially less than the ABS life expectancy of 16.7 years. However, in light of the above qualifications to Dr McCombe’s opinion founded upon the Middleton article, I do not accept the Middleton/McCombe life expectancy of 11.8 years is a reliable estimate of Mr Tower’s further life expectancy. The consequences of those findings will be taken up in dealing with issue 3 below.
Issue 2: To what extent, if any, should the life expectancy determined by taking account of the Middleton article be further reduced on account of Mr Towers’ individual medical problems?
- It will be recalled Dr McCombe opines Mr Towers’ life expectancy ought be reduced from the Middleton/McCombe life expectancy of 11.8 years to the McCombe life expectancy of 9.8 years because of extra risk, over and above the average risk posed by Mr Towers’ underlying tetraplegia.
- This extra risk is said to arise in connection with conditions, and the treatment of these conditions, that Mr Towers developed as a causal consequence of being an incomplete tetraplegic. They are a deep grade four ischial pressure wound with osteomyelitis and a uretic stricture. Dr McCombe opines:
“In my view, the claimant has an extra risk, above the average risk, of death from bacteremia from urinary tract infection as he has had a ureteric stricture repair, which is associated with a small (under 10%) risk of recurrence (Breyer, B.)
In my view, the claimant also has an extra risk, above the average risk, of death from pressure injury, either from bacteremia or from the general effects of pressure injury because of a higher than average risk of recurrence of his deep pressure injuries. This is partly because there is a scoliosis of the spine, which will likely be associated with higher sitting pressure over one buttock, and the fact that there is up to a reasonably high reported rate of recurrence of between 20.5% (Paker et al. 2018) and 48% (Relander and Palmer 1988).”
- It is to be appreciated Mr Towers’ conditions are inevitably part of the broad mix of possible conditions which combine to result in the earlier death of tetraplegics on average in comparison to the general populous. It is because of such conditions that incomplete quadriplegics have the reduced expectancy reported by Middleton et al.
- This seems to be acknowledged by Dr McCombe, who opines of calculating the reduction of the ABS life expectancy to the Middleton/McCombe life expectancy:
“The above calculations of life expectancy should take into account regular causes of mortality associated with complications from tetraplegia. These would normally include an average risk of death [from] urinary tract infection and pressure injuries from septicaemia due to either urinary tract obstruction or deep pressure injuries with bone infection.”
- I infer that, by the first sentence quoted above, Dr McCombe means deaths from regular causes associated with tetraplegia would (not merely “should”) have been taken into account in the substantial data sample on which Middleton et al drew in calculating their reduced life expectancy tables. By the second sentence quoted above Dr McCombe appears to acknowledge that deaths from urinary tract infection and pressure injuries from septicaemia due to urinary tract obstruction or deep pressure injuries with bone infection are within the regular causes of death associated with tetraplegia. However, what he means in that sentence by “average risk of death” is obscure.
- There is nothing in the Middleton article to suggest deaths resulting from the aforementioned conditions were only included when those conditions involved an “average” risk of death. There is a flaw inherent in Dr McCombe opining in favour of a reduction of the Middleton/Mccombe life expectancy because of his view that Mr Towers has an “above average” risk of death arising from those conditions.
- That such conditions may heighten Mr Towers’ risk of death compared to the total male population is uncontroversial. But Dr McCombe did not purport to apply his discrete knowledge of Mr Towers’ conditions to arrive at his own expert view of Mr Towers’ individualised likely life expectancy. Nor could he have. He did not examine Mr Towers. Nor did he conduct any inquiry into the multifactorial aspects of Mr Towers’ health and resilience which may bear in positive as well as negative ways upon his likely life expectancy.
- Rather, having explained Mr Towers’ conditions heightened the average risk of death, he purported to estimate “how much this extra risk would be”, working from the Middleton/McCombe life expectancy of 11.8 years as a base. He opined:
“It is, of course, difficult to know how much this extra risk would be. Using the same life table calculations, an extra 1% mortality risk per year due to these extra factors would reduce his life expectancy from 11.8 years to 10.9 years. A 2.5% increase in mortality rate per year would reduce his life expectancy from 11.8 to 9.6 years and a 5% per year increase in mortality rate due to these extra factors would reduce his life expectancy to 5.7 years.
It is a matter of speculation, though I would be of the opinion that a reasonable estimate of his current life expectancy, taking into account both the general risk due to tetraplegia and the increased risk, as defined above is 9.8 years.”
- I reject this opinion for two reasons. Firstly, as the above passage shows, no foundation has been provided for the selected life expectancy. To the extent there is any scientific reasoning exposed, it is merely that, by reason of the risk of recurrence of symptoms of Mr Tower’s conditions, Mr Towers’ life expectancy would be less than the Middleton/McCombe life expectancy. But no scientific basis is identified for the quantifying of the extent of the reduction. Indeed, Dr McCombe acknowledges the proffered life expectancy estimate of 9.8 years is “a matter of speculation”.
- The second and more substantive reason for rejecting Dr McCombe’s opinion that Mr Towers’ life expectancy is 9.8 years is the absence of foundation for his opinion that Mr Towers’ life expectancy would be less than the Middleton/McCombe life expectancy.
- The foundation proffered is flawed because, as explained above, it wrongly assumes the methodology of Middleton et al was to only include deaths in connection with the conditions focussed upon by Dr McCombe when those conditions involved “an average risk of death”.
- The methodology of Middleton et al was to gather and assess data in order to calculate, in effect, the average age at which it can be expected a person of a given age with a given category of spinal cord injury will die. But the data which gives rise to that actuarial calculation included a wide array of deaths and a wide array of causes of death of persons who suffered spinal cord injury. It is reasonable to infer that would have included instances of death from septicaemia due to a urinary tract obstruction or deep pressure injuries with bone infection. Indeed, Middleton et al specifically discussed how their methodology classified deaths of SCI sufferers from septicaemia. It is likewise reasonable to infer the data used by Middleton et al would have included instances of death from conditions Mr Towers is not known to be at particular risk of.
- This exposes in two ways the illogic in Dr McCombe drawing upon an actuarially founded life expectancy as a base from which to discount downwards because of purportedly clinically founded concerns regarding a specific individual. Firstly, deaths in connection with conditions of the kind Mr Tower’s has suffered would likely have already formed part of the dataset which support the actuarially calculated Middleton/McCombe life expectancy. Secondly, even if an individual’s health could result in a correctly individualised variation to an actuarially calculated base, the whole of the individual’s health would need to be considered as part of that process. This would include the positive aspects of the individual’s health. Those positive aspects may enhance that person’s prospect of living longer than the actuarially calculated life expectancy, despite the negative aspects of the person’s health. Dr McCombe only had regard to negative aspects.
- For all of these reasons I reject the McCombe life expectancy of 9.8 years.
Issue 3: If Dr McCombe’s opinion based on the Middleton article should be taken into account, what life expectancy should be attributed to Mr Towers for the purposes of assessing damages?
- Dr McCombe’s opinion based on the Middleton article compelled the conclusion, reached above, that Mr Towers’ life expectancy is likely materially less than the ABS life expectancy of 16.7 years. However, I have rejected the Middleton/McCombe life expectancy of 11.8 years as a reliable estimate.
- The Middleton/McCombe life expectancy was calculated inclusive of the SMR of 4.7 for Mr Towers’ 60-69 age bracket in the C5-C8 ABC injury category. The relevant SMR for that age bracket in the C1-C4 ABC category is 3.6 and for all categories of Tetraplegia it is 2.7. Use of those lower SMRs would result in a longer life expectancy.
- Illustrating this, the plaintiff’s counsel assembled a spreadsheet, exhibit 60, which adopted the calculation process undertaken by Dr McCombe but drew on Table 5 data in respect of all categories of tetraplegia, on the premise it would flatten out inconsistencies. Dr McCombe accepted the spreadsheet adopted his calculation method. Applying the Table 5 data for all tetraplegia to Dr McCombe’s calculation method gave rise to a life expectancy for Mr Towers’ age bracket of 15.4 more years.
- Such use of the all tetraplegia SMR ignores the more specific SMRs developed by Middleton et al in respect of specific tetraplegia injury categories. That was a point made by Dr McCombe in the following exchange in cross-examination:
“Now, I’ve sent you a copy of your figures reworked---?—Yes, I saw that.
That’s exhibit 60, and in order to try to smooth out the curve, to use a statistician’s term, I’ve adopted the figures for all tetraplegia … now, that data can I suggest to you is a little more smoothed out and a fairer representation of what Mr Towers’ life expectancy truly is. Do you agree with that?---I’m not sure that I would and there wouldn’t be any point in publishing this data if that were correct. I’m not certain that I would accept that.”
- Dr McCombe’s point would ordinarily be correct. SMRs developed for the more specific categories should provide a more accurate life expectancy estimate for those specific categories than the all tetraplegia SMR. However, it will be recalled the qualifications Dr McCombe’s conceded in evidence cast doubt upon the SMR for Mr Towers’ specific injury category. For instance, Dr McCombe acknowledged using the SMRs in Table 5 for Mr Towers’ injury category (category C5-C8 ABC) had the result, contrary to his expert medical expectations, of a life expectancy which was worse by “some years” than would be arrived at using the SMR for the more serious injury category, C1-C4 ABC.
- Having rejected a life expectancy figure calculated using the specific C5-C8 ABC injury category I accept the next best source in aiding estimation of life expectancy is the all tetraplegia category in Table 5. Exhibit 60 was properly raised with Dr McCombe in evidence. He accepted it used the same calculations he adopted in his expert evidence and that it was founded upon the all tetraplegia SMRs in the Middleton article, the article upon which his opinion was founded. Applying it using Dr McCombe’s calculation method suggests a life expectancy of 15.4 more years.
- I favour some modest adjustment of that figure downwards to 15 years given that the tetraplegia category is broad and includes data for individuals with less severe levels of tetraplegia than Mr Towers’. The numbers of years of exposure and deaths in Table 5 against the all tetraplegia category as compared to more specific categories does suggest the cohort of less severe levels of tetraplegia than Mr Towers’ C5-C8 ABC injury category is sufficiently substantial to warrant some reduction. I am however disinclined to drift more substantially downwards from what is prima facie the best available evidence, as if the imprecision attending it should somehow warrant an especially conservative approach in the defendant’s favour. Neither the general onus of proof born by the plaintiff nor the imprecision in the evidence of reduced life expectancy requires life expectancy to be resolved by a deliberately conservative estimate in favour of the party who occasioned the reduced expectancy.
- An expectancy that Mr Towers will live a further 15 years represents a reduction of 1.7 years of the ABS life expectancy. I am satisfied that represents a sufficiently material reduction to allow for Mr Towers’ reduced life expectancy on account of his spinal cord injury. I am fortified in holding that view by Mr Towers’ resilience and age. Mr Towers suffered his spinal cord injury in April 2006. The reality that in the meantime Mr Towers has lived on, despite his spinal cord injury and despite suffering the conditions highlighted by Dr McCombe, bespeaks a strong degree of resilience. The standard mortality ratio decreases as sufferers of SCI draw proportionately closer to the life expectancy of a member of the general populous. This was described by Middleton et al as a consistent trend and by Dr McCombe as “what you would expect”. Mr Towers is 69. His advanced age and the resilience he has demonstrated since being injured 16 years ago tells against a more significant reduction of his life expectancy.
- In my conclusion, I assume for the purpose of assessing damages that Mr Towers will live another 15 years.
- Economic loss will for reasons explained below be constituted by awards for lost past income and lost past superannuation.
- Mr Towers’ spinal injury left him permanently incapacitated for work as a helicopter pilot. Mr Towers had been on a one-month-on, one-month-off work cycle with Hevilift under a three year contract. He intended, in the off-work part of the cycle, to also generate income from work for companies owned by him, namely Towers Lighting Company Pty Ltd and Highlights Australia Pty Ltd, a film and television lighting businesses. However, his potential claim for lost income from that line of work was not pressed.
- The defendant did not contend Mr Towers was fit for or qualified to successfully pursue any line of full-time work. Mr Towers’ inability to perform tasks for his film and television lighting businesses meant they had to close. He did pursue some work, performing an administrative role in a friend’s business for a while in 2009 and doing some ad hoc part-time work as an aviation tutor during 2009 to 2013. His net income from that work was $18,448.
- Mr Towers claims past economic loss premised on loss of income as a pilot from the accident to the present. The defendant submits Mr Towers’ past economic loss ought be assessed on the basis he would not have worked as a pilot beyond age 65. Mr Towers’ counsel submits on the other hand that Mr Towers would have worked as a pilot until the age of 70 and thus submits he will suffer some future economic loss associated with his incapacity to work as a pilot.
- The topic of Mr Towers’ likely career and remuneration as a helicopter pilot but for his injury informs consideration of his likely retiring age. It will therefore be dealt with first.
- But for the accident, Mr Towers intended to continue helicopter work with Hevilift for as long as possible. He contends that for that work he would have received an income of approximately $1,500 net per week.
- It will be recalled from my reasons for judgment on liability that payment slips for Mr Towers’ work with Hevilift show he was paid in part by Hevilift and in part by Aviation Services Pty Ltd. It was an arrangement which saw his income paid half in Kina taxed at PNG rates and half in Australian dollars taxed at Australian rates, with the latter component additionally attracting a nine per cent employer superannuation contribution.
- This complexity was considered as part of a broader expert analysis undertaken by Ms Ann Stratikopoulos, a chartered accountant engaged by the defendant. She undertook calculations of three scenarios about Mr Towers’ prospective after-tax earnings from 9 March 2006, when he commenced employment with Hevilift, to 26 September 2015, when he turned 65, a period of about 498 weeks. She undertook calculations for a fourth scenario continuing to when he would turn 70, a period of 707 weeks. Her four different scenarios were:
- Scenario One – Mr Towers was paid, as an employee of the defendant pursuant to his three year contract and later at line pilot rates similarly to employee Don Guthrie, entirely in Kina in PNG for the period 9 March 2006 to 26 September 2015 (the eve of his 65th birthday) and taxed appropriately as an Australian resident;
- Scenario Two – for the period 9 March 2006 to 8 March 2009, Mr Towers would have been paid, as an employee of the defendant pursuant to his three year contract and later at line pilot rates similarly to employee Don Guthrie, 50 per cent in Australian Dollars and 50 per cent in PNG Kina, and from 9 March 2009 to 26 September 2015 entirely in PNG Kina;
- Scenario Three – for the period 9 March 2006 to 8 March 2009, Mr Towers would have been paid, as an employee of the defendant pursuant to his three year contract, and from 9 March 2009 to 26 September 2015 would have been employed by an Australian entity for work done in Australia and remunerated under the Air Pilots Award;
- Scenario Four – for the period 9 March 2006 to 8 March 2009, Mr Towers would have been paid, as an employee of the defendant pursuant to his three year contract and later similarly to employee Craig Rose, 50 per cent in Australian Dollars and 50 per cent in PNG Kina, and from 9 March 2009 to 26 September 2020 (the eve of his 70th birthday) entirely in PNG Kina.
- It is unnecessary to recite detail of the foundational evidence for the scenarios, there being no issue taken about the information relied upon for the purposes of the scenario calculations.
- The net total income for the scenarios is:
- Scenario one: $613, 777.85;
- Scenario two: $613, 777.85;
- Scenario three: $454,554.25 (including superannuation guarantee charge);
- Scenario four: $1,096,604.47.
- The totals in scenarios one and two are identical because PNG non-resident withholding tax is assessable on wages paid to employees despite wages, or a portion of wages, being paid in Australian currency.
- The total in scenario three was the only total expressed as including the superannuation guarantee charge, in connection with the Australian based component of employment. If scenario three is reduced by the amount attributable to superannuation, which I will consider separately from lost income, its total amends to $424,661.36. Pursuant to Mr Towers’ contract, superannuation was to be payable only on the Australian currency half of his salary but that is not referred to in any of the scenarios explained in the report of Ms Stratikopoulos. The scenarios assume that any continued employment in Papua New Guinea after the three year contract would have attracted payment entirely in Kina, making it unlikely the contemplated payments should be interpreted as inclusive of superannuation.
- The above scenarios involve variable annual income, but it is illustrative to consider the hypothetical weekly net income average calculated as if those totals were received in uniform weekly amounts. So calculated, the scenarios give the following average weekly net income:
- scenarios one or two (based on Mr Towers’ contract and Hevilift employee Guthrie, working to 65): $1,232.49;
- scenario three as amended (based on Mr Towers’ contract and then the Australian Air Pilots Award, working to 65): $852.73;
- scenario four (based on Mr Towers’ contract and Hevilift employee Rose, working to 70): $1,551.06.
It is also illustrative to note that according to the report of Ms Stratikopoulos:
- during the three year contract with Hevilift Mr Towers’ average net weekly income would have been: $1,036.70; and
- in scenarios one and two the average net weekly income for the years after the end of the three year contract would have been: about $1,300.
- Mr Towers contends for an assessment premised on him working for Hevilift until retirement, averaging a weekly net income of $1,500. He contends that figure would be conservative, drawing on a comparison with income earned by Hevilift employee Mr Craig Rose, as illustrated in scenario four.
- The nature of Mr Towers’ flying qualifications, his flying history and employment history as a helicopter pilot were canvassed in my reasons for judgment on liability and need not be repeated. There was some elaboration upon that history in the quantum component of the trial.
- It will be recalled Mr Towers had a long interruption to his flying career, returning to it at about the age of 40. As time went on, he aspired to work at a higher skill level but did not enjoy particular success in doing so. He did not exhibit sufficient competencies to complete his probation as a marine transfer pilot with Helicopters (Australia) Pty Ltd in 2004 and failed his IFR flight test in 2005.
- A reference was exhibited in the quantum component of the trial from Mr Towers’ flying operations supervisor when Mr Towers performed work in Antarctica. It spoke highly of Mr Towers’ work performance. However that reference was so effusive about Mr Towers’ “daring” as to undermine its apparently complementary intent. It seemed to be a less considered commentary on Mr Towers’ skills than exhibit 19, his employer’s written explanation that Mr Towers failed probation with Helicopters (Australia) Pty Ltd in 2004 as a marine transfer pilot due to “lack of demonstrated fundamental flying technique”.
- Mr Michael Van Der Zypp, of a business known as the Helicopter Group, gave evidence of having encountered Mr Towers in the aviation industry over the years. He testified Mr Towers’ reputation in the industry “was good” and recalled one person speaking “very highly and professionally of him”. His business employed Mr Towers for charter and fire-bombing work. He described Mr Towers as “an above average helicopter pilot”, noting that because “of his fixed wing experience he was good in controlled air space”. As to Mr Towers work prospects but for the accident Mr Van Der Zypp testified:
“Bruce has the qualifications – especially with his instrument rating in the aeroplane would allow him to get high qualified jobs than most because of his history in instrument flying. So he would have been able to get jobs on rescue machines, oil rig work. Nowadays they have – marine pilot transfers are doing all right. So as the industry’s upgraded to more sophisticated machinery Bruce’s licence would have allowed him to upgrade to those positions.”
- This appeared to be an overly optimistic forecast. Mr Towers had failed his probation endeavouring to work as a marine transfer pilot in 2004, less than a year before the accident. His fixed wing experience and his qualifications do not appear to have translated into any outstanding level of success in his 15 years as a helicopter pilot prior to the accident. His income as a helicopter pilot in the years preceding his employment with Hevilift appears to have been variable and materially less than he was to earn with Hevilift.
- None of this is to criticise Mr Towers but my strong impression on the whole of the evidence is that Mr Towers was a competent rather than outstanding helicopter pilot
- The attempted comparison with Mr Rose’s career trajectory and income is unrealistic. Mr Rose was more youthful and better experienced than Mr Towers and likely to have progressed to earning a more substantial income than Mr Towers would have but for the accident. Mr Rose exhibited a superior aptitude for technical knowledge and training than Mr Towers, being promoted to the role of Training Captain in 2012. This is hardly surprising when his experience is considered against Mr Towers’. When Mr Rose commenced with the defendant, in a similar era to when Mr Towers did, Mr Rose was 43 and had amassed over 8,000 hours in rotary wing aircraft. In contrast Mr Towers was 55 and had only 2,885 hours in rotary wing aircraft, with only 126 hours thereof in twin-engine helicopters. The defendant’s chief pilot Mr McCaughan, who has been with the defendant for many years, explained the defendant’s approach generally was to recruit younger pilots, because of their adaptability. He explained fixed wing experience was not an advantage because it tended to ingrain habits which were not helpful in utility helicopter operations. The defendant tended to select the best performing of their pilots to upgrade to multi-engine work, which improved career prospects. Mr Towers’ professional competency level does not suggest he was a likely future successful contender for such selection. In any event he had no realistic prospect of advancing to piloting multi-engine helicopters in the term of his first contract and, for reasons explained below, I think it unlikely he would have wanted to continue working for Hevilift beyond the term of three year contract.
- Mr Towers was competent to work at the level he was employed working in at Hevilift from March 2016, at age 55. He may in due course have attained some skills and qualifications to work at a moderately higher remunerative level as a helicopter pilot. However, considered collectively, none of the evidence relevant to Mr Towers’ ability and experience suggests he would have enjoyed as favourable a career trajectory as Mr Rose.
- A more realistic income projection comparison, assuming Mr Towers would have completed his three year contract and remained working with Hevilift in Papua New Guinea, would be with Mr Don Guthrie, as per scenarios one and two.
- Mr Towers’ contends his economic loss ought be assessed on the premise he would have remained employed by Hevilift until retirement. That premise assumes both that Hevilift would have continued to employ him and that he would have chosen to remain working for Hevilift. The first component of that premise is the least controversial. Of course, it is possible Mr Towers would not have completed his probationary period under the contract or been offered continuing work beyond the contract’s three year term. The only modest indication as to what was probable in that regard is that Hevilift recruited and inducted Mr Towers as a line pilot, so, on the face of it, he was suitable for employment with Hevilift as a line pilot. Despite calling evidence from its chief pilot Mr McCaughan, the defendant did not adduce evidence from him that it was common for employees to fail their probationary period or not be offered further employment on completion of their contracts. This makes it easier to infer, as I do, that it is more likely than not Mr Towers would have completed his probation and, had he sought employment as a line pilot with Hevilift beyond his three year contract, been offered further employment.
- It is however most unlikely that Mr Towers would have chosen to remain working with Hevilift until he retired. Mr Towers had worked for an array of different employers in the preceding 15 years. The notion he would have chosen to stay with Hevilift for at least the next decade is contrary to that past pattern of variability.
- Further, Mr Towers’ work for Hevilift involved travelling back and forth from Victoria to Papua New Guinea and staying in workers’ accommodation while there. That accommodation would sometimes be in tents or camps. It is doubtful such a working lifestyle would have held long term appeal to a man already well into his fifties.
- It is reasonable to infer that within the first few years of Mr Towers’ contract the advantages of the job’s remuneration and opportunity for flying experience would have diminished relative to the long-term disadvantage of the job’s unappealing working lifestyle. That inference is certainly consistent with the reality that most of the defendant’s pilots usually only stay for short terms. The chief pilot of the defendant, Mr Mark McCaughan, has worked on and off for the company since 2004 and consistently so for the last ten years. He testified that in his time several hundred pilots have come and gone. Of the 55 pilots who were with Hevilift when he started, only four, including himself and Craig Rose, remain. As to how long pilots typically stay with the company he testified:
“Generally they stay two to three years and then there will be some that stay up to five years, but there’s very few who stay over that.”
- I do not overlook Mr Towers’ professed fondness of Papua New Guinea, the home of his youth and the country in which he had long ago flown fixed wing aircraft and done some parachuting. However, he had not worked there in any of his preceding 15-year career as a helicopter pilot. It is difficult to avoid the impression Mr Towers took the job with Hevilift not because he longed for a fly-in fly-out career in Papua New Guinea, but because it was a relatively well paid job in which he could accumulate further experience.
- It is reasonable to infer that within the first few years of his contract Mr Towers would have been looking to use the experience gathered to secure employment at a similar level of remuneration in full time employment closer to home back in Australia. His chances of securing such employment, having accumulated some years experience as a line pilot with Hevillift, would have been good. I infer Mr Towers would have held on and completed his three year contract with Hevilift but then reverted to working as an employed helicopter pilot in full time employment in Australia.
- I will assess Mr Towers’ economic loss on the basis he would have worked for Hevilift for three years earning $1,036.70 net weekly, and then, from 9 March 2009 to his retirement, worked in Australia as a helicopter pilot.
- In allowing for Mr Towers’ likely remuneration had he returned to working in Australia after the expiry of his three year contract, scenario three used the Australian Pilots Award. In the era from 2009 to 2015 Ms Stratikopoulos’ report shows the award progressively increased from about $45,000 per annum to about $56,000 per annum, which would result in a net income under $1,000 a week.
- Mr Van Der Zypp, who testified his business paid its employees well above the award, estimated they paid their grade three junior instructors $75,000 per annum and their grade one instructor $110,000. Those amounts would roughly translate to respective net weekly incomes of $1,100 (or $1,025 if the gross included superannuation) and $1,531 (or $1,419 if the gross included superannuation).
- When asked what income Mr Towers with his qualifications might be on now with Mr Van Der Zypp’s business, Mr Van Der Zypp answered, somewhat unresponsively, that Mr Towers probably would not want to be an instructor and with his qualifications “would’ve gone down the oil gas platforms or the rescue platforms … and he would’ve possibly been on 120, 140 grand a year”. This was an overly optimistic forecast, to which I give no weight. Implicit in the response however is that Mr Van Der Zypp considers Mr Towers at least had skills apt for his potential employment as an instructor.
- It is reasonable to infer that Mr Towers would have enjoyed some modest improvement in his qualifications during his three-year contract with Hevilift. More particularly his employability would likely also have improved by virtue of his three years flying experience in Papua New Guinea. Those considerations suggest that he would have been able to command an income materially in excess of the award, likely in the vicinity of his average net weekly income during his contract with Hevilift and ranging upwards over time.
- As to the extent of that range, it is important to bear in mind that much of this exercise is premised upon Mr Towers’ success and self-improvement during a three year term of employment which had barely begun at the time of the accident. In light of Mr Towers’ history of comparatively modest remuneration prior to his time with Hevilift I would take a conservative approach in forecasting the extent by which his income was likely to have ranged upwards after returning to work in Australia. I will assume there would have been a moderate rather than significant increase.
- In my conclusion, Mr Towers is likely, in the years between the completion of his Hevilift contract and retirement, to have averaged a weekly net income of $1,200, not including the employer superannuation contribution. In annual gross income terms that equates to an annual income of about $82,500, not including the employer superannuation contribution. It should be noted that some of the scenarios urged upon me by the parties did not factor in superannuation. The approach I have taken will require that lost superannuation be considered additionally to lost income.
- Turning to the topic of retiring age, there is no specific support in the evidence for the contention that Mr Towers would have continued in helicopter flying work at full earning capacity until the age of 70. No evidence was adduced from him as to what age he intended to work to. Admittedly a bare assertion on that topic without more would have carried little weight anyway.
- Mr Van Der Zypp explained pilots must pass medical tests every six months, rather than every 12 months, once one they turn 65. Mr Van Der Zypp also explained companies requiring helicopter pilots to service oil platforms do not employ pilots over 65. However, Mr Towers is unlikely to have been involved in that type of work.
- Flying a helicopter does not involve physical effort of the kind that raw labouring does but it does require a level of coordination as between mind and body involving physical qualities such as reaction times that are likely to dwindle with age. Bearing in mind those considerations, and the reality that Mr Towers’ helicopter flying talent fell into the competent rather than outstanding category, I do not accept Mr Towers would have remained a viable prospect for paid employment until the age of 70.
- That said, it is clear that Mr Towers was an industrious person who obviously loved flying. His commitment to a continued pursuit of a career flying helicopters was well demonstrated by his preparedness in his mid-fifties to take on the privations of the fly-in fly-out work lifestyle with Hevilift. The same commitment was evidenced by his admittedly unsuccessful pursuit of additional qualification in 2005. Mr Towers had led an adventurous working life and was by nature unlikely to hanker for an inactive existence. He was in apparently robust health and would likely have been able to pass the requisite medical tests to continue flying beyond 65. He remains mentally astute. The probability is that he would have continued flying helicopters for a full-time living beyond age 65, and probably to an age somewhat closer to 70 than 65.
- I do not overlook the prospect that he may have increasingly taken on contract work in the twilight of his career, gradually easing into part-time work before complete retirement. However, it is inevitable that as he aged he would have become less competitive with other pilots in the contract market. There would likely be a near coincidence between his employability as an employee or as a contractor once he approached his late sixties. I will therefore assess lost income on the premise he would have worked full time to a given age and then retired.
- In my conclusion, Mr Towers would have retired when he turned 68. I will therefore assess his economic loss as running to and including 26 September 2018. This date having passed, there will be no award for future economic loss.
- The above reasons will result in Mr Towers’ loss of income being assessed using the likely net weekly income figures identified above of $1,036.70 for his likely further time with Hevilift and of $1,200 thereafter.
- It is to be borne in mind that Mr Towers did receive income from Hevilift for a time after the accident. The evidence on this is sketchy. It will be recalled Mr Towers was paid by two entities. Mr Towers’ quantum statement indicates that both entities continued to pay him until 30 November 2006. A bundle of payslips was tendered in evidence. One payslip records a payment from Aviation Services Ltd, the entity which paid him for the Australian currency half of his income and superannuation. It records payment to Mr Towers on 15 November 2006 for the pay period 1 November 2006 to 30 November 2006. A PAYG summary seems to confirm this. There is no corresponding payslip relating to a payment from Hevilift for the same period. Nevertheless, the information contained in Mr Tower’s quantum statement concedes he continued to be paid his whole wage until 30 November 2006. Accordingly, I will commence the count of lost weekly net income as running from 1 December 2006.
- There should be some discounting for contingencies, albeit that I have already built in a conservative approach to forecasting likely income after Mr Tower’s three years with Hevilift. In my judgment a discount of 12.5 per cent is appropriate.
- I would assess lost income as follows:
Number of weeks
Net per week
01.12.06 – 08.03.09
09.03.09 – 26.09.18
Less $18,448 net income between 2009-2015
Less 12.5% for contingencies
- The award for loss of income (not including interest) should be $614,636.04.
Interest on past loss of income
- It is common ground, based on assessment practices in Papua New Guinea, that past economic loss should attract interest at five per cent. The defendant contends that rate should be halved to fairly reflect the reality that the total loss accumulated over time. Mr Towers’ counsel eventually accepted that was appropriate but that acceptance was obviously in the context of his submissions having contended Mr Towers would still be in employment. I have found he would have ceased his employment and thus ceased any further accumulating economic loss on 26 September 2018.
- I will accordingly assess interest payable on economic loss from 1 December 2006 when a loss began accumulating to 26 September 2018, the eve of Mr Towers’ 68th birthday, at 2.5 per cent. However, from 27 September 2018, by which time Mr Towers had sustained the whole of his economic loss, I will award interest on that amount at five per cent. That is because he is entitled to be compensated through interest for being put out of the full amount of his economic loss from then.
- This results in the following calculation of interest on lost income of $614,636.04:
Interest on $614,636.04
01.12.06 – 26.09.18
27.07.18 – 15.04.20
- I will award $234,589.76 as interest on lost income.
- For the three year contract with Hevilift Mr Towers would have received superannuation at nine per cent of half of his income. His total gross income for that three years, according to the report of Ms Stratikopoulos, would have been $251,123.53 of which $125,561.76 would attract the superannuation contribution. This would have equated to a total superannuation contribution in that three years of $11,300.56, a weekly average of $72.44. For reasons explained above, the count of the loss would commence on 1 December 2006.
- When later working as a full time employee in Australia, Mr Towers’ weekly net income of $1200 would have equated to a gross annual income of about $82,500 or a weekly gross of $1,586.54. He initially would have received superannuation at nine per cent (or $142.79 a week), increasing to 9.25 per cent (or $146.76 a week) from 1 July 2013 and to 9.5 per cent (or $150.72) from 1 July 2014.
- This results in the following assessment:
Number of weeks
Weekly employer superannuation contribution
01.12.06 – 08.03.09
09.03.09 – 30.06.13
01.07.13 – 30.06.14
01.07.14 – 26.09.18
Less 12.5% for contingencies
- I will allow past loss of superannuation (not including interest) in the sum of $71,497.47.
Interest on past loss of superannuation
- I will adopt the same approach to calculation of interest on loss of superannuation as with interest on lost income.
- This results in the following calculation of interest on lost superannuation of $71,497.47:
Interest on $71,497.47
01.12.06 – 26.09.18
27.07.18 – 15.04.20
- I will award $27,288.67 as interest on lost superannuation.
Household maintenance costs
The issues and the evidence
- Of the special damages claimed by Mr Towers in his statement of claim, the following are in dispute:
“25.13 Mowing, garden and yard expenses on the basis of:
25.13.1 $45.00 per fortnight on average for the period since his discharge from hospital until January 2016 when he moved to Drysdale (484 weeks) for services rendered by Rob Wallace of Moonah Gardens for mowing lawns, whipper-snippering and general garden and yard maintenance) in the sum of $10,890;
25.14 Household cleaning expenses between the plaintiff’s discharge from hospital until January 2016 at the rate of $82.50 per week, being three hours per week paid cleaning at $27.50 per hour for a period of 484 weeks in the sum of $39,930.00.”
- The defendant’s counsel argued nothing should be allowed for the mowing or the household cleaning expenses. It was submitted there was no evidence as to whether Mr Towers used to do mowing or cleaning before his accident and that the claim made no allowance for the fact that Mr Towers was living with a number of other people – his separated wife and perhaps one son – for much of the period in question. It was argued they may have been the beneficiaries of mowing and cleaning just as much as Mr Towers was.
- Those submissions are unpersuasive in a case where the plaintiff was rendered a wheelchair bound incomplete quadriplegic. It is a reasonable inference that the need for him to pay for the work in question at the household in which he lived and received care arose directly from his incapacity to perform it and indirectly from the eroded availability of the balance of the household to perform it because of the impost on them of caring for him.
- More significantly, the defendant’s counsel submitted there been a failure to prove the claimed expenditure, with documentary evidence of all such expenditure not being produced. The defendant’s counsel submitted Mr Towers, the sole witness called on the topic, conceded he had no idea of the costs incurred or paid.
- The relevant evidence in support of the two claims was brief. In Mr Towers’ exhibited quantum statement, he relevantly stated:
“135. Between the time of my discharge from hospital and the time I moved to Drysdale in January 2016, Rob Wallace of Moonah Gardens performed mowing of our lawns, whipper-snipping and general garden and yard maintenance. I paid Mr Wallace about $45 per fortnight although I have kept no receipts in that respect. The cost of that work is approximately $10,890. …
137. Louise and I have also paid for household cleaning services from various cleaners since discharge from the hospital until about January 2016 when we moved to Drysdale. Prior to the accident, Louise and I undertook all of the house cleaning ourselves. I estimate the cost of household cleaning at about $82.50 per week (being three hours per week @ $27.50 per hour) since the accident in the total of $39,930.”
- That evidence was supplemented by some oral evidence-in-chief in respect of the mowing whereby Mr Towers agreed that two receipts put to him in evidence were receipts from the Moonah Gardens business. The documents are on their face invoices, although they also record the receipt of some payments made. It was implicit in Mr Towers’ responses that there were other receipts for the performance of such work which had been given to his solicitors who had changed addresses, the inference being that those receipts must have been lost. There was no evidence forthcoming from the solicitors regarding the provision and loss of receipts.
- The defendant’s counsel emphasised the following relevant exchange occurred in cross-examination:
“And, Mr Towers, apart from those two receipts, there are no others, are there, for any expenditure on mowing or whipper snippering whilst you were at Queenscliff or at Drysdale?‑‑‑I can’t recall, but there was several, because Rob did the lawns there, and my wife was more in charge of that section than I was.
Okay. So she’d know how she paid and when she paid and the regularity with which she paid and matters like that?‑‑‑I would say so. Yes, sir.
And that’s the same for engaging household cleaning services?‑‑‑I would say so, sir.
So you don’t really have any of the detail or particulars of it, to your own knowledge?‑‑‑Not that I know of. I do remember that when I went to one of the first Slater and Gordon offices, all receipts that we ever had kept being tallied into computers there.”
- That exchange does not eliminate the evidence in the above quoted passages from Mr Towers’ quantum statement. Those passages provide some evidence there were payments made for the services and of the estimated quantum of those payments. The main complaint here though is not that there has been a complete failure of proof. Rather it is that the force of the evidence of expenditure is undermined by its imprecision and by the absence of better evidence which it should have been within the plaintiff’s capacity to produce. It is inevitably a matter of degree, depending on the undermining force of those considerations, as to whether they should cause such evidence as there is of expenditure to be given no weight at all. A less dire outcome is that such evidence as there is of expenditure might still be given weight as establishing the fact loss has occurred but that the quantification of that loss requires estimation. In that event, bearing in mind the plaintiff bears the onus of proof, such estimation ought be conservative. If that in fact results in under compensation a plaintiff who has failed to provide better evidence has no ground to complain.
Mowing and gardening
- Turning firstly to the claim for mowing and gardening expenses, Mr Towers acknowledged in cross-examination that his wife was “more in charge of that section” and would know how and when she paid. However, I did not understand his responses to amount to an abandonment of his asserted knowledge in the quantum statement of the fact of expenditure and the average amount. That is knowledge of a kind which more than one adult member of a household may readily have. Fairly considered his responses involved a concession he did not have the specificity of knowledge that his wife would have as the most directly involved party. I understood his response above, “Not that I know of”, to mean he could not produce the evidentiary detail of the expenditures because he thought the receipts had been handed to his solicitors.
- Mr Towers and his wife have separated however she still actively assists him. Her unexplained absence as a witness supports the inference she could not have assisted Mr Towers’ evidentiary position. But given she may not have been able to produce records for the same reason mentioned by Mr Towers that is hardly fatal to his evidentiary position. He explained in his quantum statement that mowing and gardening work was performed by Moonah Gardens and he asserted an estimated average payment to that entity of $45 per fortnight.
- Of the two gardening invoices which were exhibited, both were from Moonah Gardens. The first invoice lists services described variously as “lawns and edges”, “lawns and edges (extra whip)” and “general garden maintenance”. It identifies 11 dates in an unidentified year on which such services were provided. Those dates range from 5 February to 6 August, a period of about 26 weeks or half a year. The amounts vary, with the most commonly charged amount being $45.
- The second mowing and gardening invoice lists services described variously as “lawns and edges”, and “general garden maintenance”. It identifies four dates in an unidentified year, inferentially different than the year of the first invoice, on which such services were provided. Those dates range from 14 February to 11 April, a period of about eight weeks. The amounts charged vary.
- The total of the charged amounts in the first invoice is $617, which for 26 weeks represents an average payment of $23.73 a week or $47.46 a fortnight. The total of the charged amounts in the second invoice is $230, which for eight weeks represents an average payment of $28.75 a week or $57.50 a fortnight. In combination the two invoices total $847, which for 34 weeks represents an average payment of $24.91 a week or $49.82 a fortnight.
- All of this comfortably supports Mr Towers’ assertion in his quantum statement that he paid about $45 a fortnight, which would be $22.50 a week, for mowing and gardening maintenance.
- This evidence obviously cannot confirm there was a pattern of such payments throughout the period claimed for. The claimed period of 484 weeks is said to be the period from Mr Towers’ discharge on 23 September 2006, when he lived at the family home on a quarter acre block in suburban Queenscliff, to when there was a move to more rural living in Drysdale. Counting 484 weeks from 23 September gives an end date of 1 January 2016. The quantum statement varies as to when the move to Drysdale occurred. The above quoted paragraphs put it at January 2016, which supports the nomination of 484 weeks, whereas earlier in the quantum statement Mr Towers says, “We ultimately moved to Drysdale in about 2015”. That does not indicate approximately when in 2015 the move occurred. Allowing that Mr Towers elsewhere nominated January 2016 it is reasonable to infer that if the move was actually in 2015 it was likely in the second half of that year.
- Taking a conservative approach in light of such imprecision I will allow $22.50 per week for 4574/7 weeks from 23 September 2006 to 1 July 2015. This will result in an award for mowing and gardening, before interest, of $10,295.36.
- Turning to the claim for cleaning, there exists the same issue regarding the period of the claim, but there are more problems than that. Mr Towers’ quantum statement did not identify the relevant cleaners which his quantum statement asserted were paid. Further, while he estimated the “cost” of household cleaning at $27.50 per hour for three hours a week, he did not actually assert cleaners were paid at about that rate for work performed for three hours every week. Perhaps he intended his words to carry that meaning but there lingers another possibility, namely that he has simply made a generalised weekly estimate without knowing whether paid cleaning work was performed for that long in every week of the long period claimed.
- The uncertainty attending Mr Towers’ evidence about cleaning is compounded by the absence of any documentary record at all in respect of an amount alleged to total almost $40,000. I infer from the absence of Mr Towers’ former wife that her evidence not have assisted him, though I would not carry that reasoning to the point of concluding there must not have been any paid cleaning service provided at all. I regard Mr Towers’ testimony on this topic not as dishonest but as vague, grounded upon some general knowledge as a member of the household that paid cleaning services were provided and otherwise grounded on assumption.
- The upshot is I am satisfied some payments would have been made for paid cleaning services from time to time during 4574/7 weeks from 23 September 2006 to 1 July 2015. It might be that occurred weekly, as I am urged to find. It might be that it was more sporadic. Given the uncertain state of the evidence I would take a very conservative approach, only allowing for cleaning occurring every four weeks at an average payment of $75 each time. This will result in an award for past cleaning services before interest in the amount of $8,579.46.
- Adding those two awards gives a total award before interest, for cleaning, mowing and gardening services, of $18,874.82.
- In applying interest to the above total, it should be borne in mind that, while the amount was accumulating from 23 September 2006, Mr Towers has remained uncompensated for the full amount since 1 July 2015. As with economic loss the interest calculation should therefore be at 2.5 per cent during the accumulating period and five per cent afterwards.
- This results in the following calculations:
Interest on $18,874.82
23.09.06 – 30.06.15
01.07.15 – 15.04.20
- I will award interest of $8,662.27 on past cleaning, mowing and gardening expenses.
Calculation of damages
- It is 730 weeks since the date of the accident on 20 April 2006 and 7074/7 weeks since Mr Towers was discharged from hospital on 23 September 2006.
- Applying the above findings in combination with matters agreed between the parties results in the assessment of damages tabulated below. There are some miscellaneous issues to be determined before that assessment.
- An aspect of the assessment not directly addressed by the parties is when interest should begin accumulating in respect of the past miscellaneous special damages set out in the assessment table below. The difficulty is that despite it being common ground they ought to attract interest, at five per cent, it is not clear when each amount of loss occurred. Some of them are expenses of a character likely to have been incurred within the first few years of the accident but some may not have been incurred until much later. Given the evidentiary deficiency I will take the conservative approach of not commencing the interest count until seven years after the accident, namely 20 April 2013 and apply an interest rate of 2.5 per cent to allow for the accumulating nature of the expenses, as explained above.
- A further aspect requiring consideration is that past pharmaceutical, medical & rehabilitation expenses have been agreed in the sum of $50 per week between 23 September 2006 and judgement, a period of 7074/7 weeks. This gives rise to a total of $35,378.57, which I will award. That total has been accumulating throughout the calculation period from 23 September 2006. Consistently with the above approach taken above with accumulating totals I will apply an interest rate of 2.5 per cent to that total. This gives rise to an award of interest payable on $ 35,378.57 of $11,996.46.
- The final miscellaneous issue is what discount for vicissitudes ought be applied to recurrent future expenses. The defendant’s counsel submitted for a 10 per cent discount but the topic was not the subject of argument. A discount for vicissitudes accounts for a number of possibilities including that a plaintiff might still have an early death or have had to, in any case, pay recurring medical costs in later life even if an injury had not occurred. It could also reflect the possibility of cheaper health care alternatives being developed in the future. In this case the possibility of cheaper medical and care costs in the future seems remote. The very grave nature of Mr Towers’ injury makes it unlikely there will be any material easing in his medical and care costs with time. As to the possibility that Mr Towers may still suffer an early death, that contingency has to an extent been accounted for by my findings in relation to life expectancy. Of course, there remains the possibility Mr Towers may die earlier than the lowered life expectancy I have estimated; a topical illustration of which could be death from COVID-19 virus. On the other hand there remains the possibility, highlighted by Windeyer J in Bresatz v Przibilla, that he may outlive that period. Mr Towers’ future medical and care costs are very substantial. A discount as high even as 10 per cent represents a very significant monetary reduction of expenses for medical needs and care which will be required until Mr Towers dies. The risk that discounting, which ostensibly safeguards the defendant against the awarding of overcompensation, might result in significant undercompensation for the cost of adequate care and assistance for a plaintiff in grave need of such care and assistance justifies a circumspect approach. In the circumstances of this case a discount of five per cent is in my judgment appropriate.
- I calculate damages as set out in the table below:
Head of Damage
Interest on general damages
Interest agreed at the rate of 2% on $125,000 between the date of the accident and judgment
Past loss of income
Interest on past loss of income
Past lost superannuation
Interest on past lost superannuation
Past cleaning, mowing and gardening expenses
Interest on past cleaning, mowing and gardening expenses
Past care & assistance
Admitted at the rate of three hours per day at $30 per hour, ie $630 a week, for 7074/7 weeks between 23 September 2006 and judgment (inclusive of interest).
Past travel expenses
Agreed inclusive of interest.
Past special damages refunds (not attracting interest):
Total past special damages refunds (not attracting interest)
Past miscellaneous special damages:
Total past miscellaneous special damages
Interest on past miscellaneous special damages
Commencing per reasons from 20 April 2013, at 2.5% per reasons.
Past pharmaceutical, medical & rehabilitation expenses
Interest on past pharmaceutical, medical and rehabilitation expenses
Future special damages:
Agreed at the rate of $530 per week at 3%, during life expectancy of 15 years per reasons, resulting in a present day value of $334,960. Discount of 5% to be applied for vicissitudes as per reasons.
Agreed at the rate of $600 per week at 3%, during life expectancy of 15 years per reasons, resulting in a present day value of $379,200. Discount of 5% to be applied for vicissitudes as per reasons.
Future care & assistance:
One-off set-up for homecare and assistance
Current need for paid care until aged 75
Agreed at the rate of $2,876.40 per week at 3%. Allowing that Mr Towers will turn 75 in about 284 weeks the present value of those weekly payments is $753,284.95. Discount of 5% to be applied for vicissitudes as per reasons.
Need for paid care and assistance after the age of 75
Agreed at the rate of $5,087.40 per week at 3%. Allowing that Mr Towers’ life expectancy of 15 years means he should live about a further 498 weeks beyond when he turns 75 in about 284 weeks, the present value of those weekly payments accruing from age 75 is $1,868,894.41. Discount of 5% to be applied for vicissitudes as per reasons.
- It will be necessary to hear the parties as to costs if costs are not agreed.
- My orders are:
- The defendant pay the plaintiff damages in the sum of $5,652,072.74.
- The parties will be heard as to costs at 10.00 am on 24 April 2020, by audio or audio-visual link, if the parties have not by then informed the Registry that costs are agreed.
Towers v Hevilift Ltd & Anor  QSC 267; affirmed on appeal in Hevilift Ltd v Towers  QCA 89.
As distinct from statutes such as the Civil Liability Act 2003 (Qld).
See, for example, Golden Eagle Trading v Zhang (2007) 229 CLR 498.
See, for example, Schiffman v Jones (1970) 92 WN (NSW) 780, 792.
Ex 48 p 6.
Ex 48 p 4.
Ex 48 p 5; Ex 63.
Ex 48 p 6.
Ex 48 p 7.
Ex 48 p 6.
Ex 63, Middleton article, p 803.
Ex 63, Middleton article, p 808; Ex 58.
See for example counsel’s reversion to Dr McCombe’s work in this context when asked to explain the mathematics at T3-35 L24 – T3-36 L20.
During the trial I indicated I favoured removing the articles which were not referred to in cross-examination if they were not further referred to at the trial (T2-52 LL20-35). They were not further referred to at the trial. I overlooked returning to the issue of their removal before reserving my decision. I subsequently had my associate ascertain the parties’ attitude to the removal of the unreferred to articles and in the absence of common ground all of the articles remained part of exhibit 63 (the email exchanges are on the court file marked “J” for identification).
Such an argument may have required consideration of whether Dr McCombe had the requisite expertise to adopt a multi-disciplinary study as reliable and of the tension in some authorities about the standing of hearsay information in exhibited documents (Cf. Robert Bax & Associates v Cavenham Pty Ltd  1 Qd R 476, 488; Bevan v Wagner Industrial Services Pty Ltd  2 Qd R 542, 544–5 , 542–60 -).
Gerrard v Royal Infirmary of Edinburgh NHS Trust 2005 1 SC 192, .
T2-30 L10 – T2-33 L46.
Ex 48 p 6.
Ex 63, the Middleton article, including the discussion of causes of death at pp 805 and 809 and Table 7.
Ex 48 p 6.
Ex 48 pp 6-7.
Ex 48 p 6.
Ex 63, the Middleton article, p 805.
T2-32 L26 – T2-33 L5.
Thurston v Todd  1 NSWR 321, 326–7. Compare the conservative approach sometimes apt to estimating special damages a plaintiff should be in a position to prove more precisely, discussed below at .
Ex 63, Middleton article, p 808.
Ex 44A p 11.
Towers v Hevilift Ltd & Anor  QSC 267, .
Per Ex 13 App B. That the superannuation was additional to, not included in, the net income is also confirmed by the payslips in Ex 55.
Using net income figures in Ex 49 table 6 (apportioning the 08/09 net figure to allow for the contract ending on 8 March 2009).
Again using net income figures in Ex 49 table 6.
Including Ex 44A, the quantum statement.
See Towers v Hevilift Ltd & Anor  QSC 267, –.
T2-44 LL 20-24.
T 2-44 Ll36-41.
Ex 44A, .
T2-56 LL14-16, 32-34.
Ex 49, p 12, table 9.
2019/20 tax rates and Medicare levy applied.
Ex 49, p 12, table 9.
Ex 44A p 27.
T1-35 L43 – T1-36 L9.
See for example Nunan v Gerblich (1974) 10 SASR 39, 52 where Bray CJ suggested estimating at “the most exiguous figure consistent with the acceptance of the appellant’s evidence…”.
Minchin v Public Curator of Queensland  ALR 91, 93 per Barwick CJ.
Jones v Dunkel (1959) 101 CLR 298.
Ex 44A, .
Black v Lipovac (1998) 217 ALR 386, 431 .
Sherwood v Guneser (1992) 110 FLR 459, 466 which draws an analogy to discounts for contingencies generally, citing the leading case Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
Black v Lipovac (1998) 217 ALR 386, 427 .
See Lipovac v Hamilton Holdings Pty Ltd (1997) 136 FLR 400, 403, affirmed on appeal Black v Lipovac (1998) 217 ALR 386, 386 . Cf. Nominal Defendant (NSW) v Gardikiotis (1994) 19 MVR 307, 312.
(1962) 108 CLR 541, 546. See also, H Luntz, Assessment of Damages for Personal Injury and Death (LexisNexis, 4th ed, 2002) 378 [6.4.4].
Applying formula C x
Applying formula POrdinary x
- Published Case Name:
Towers v Hevilift Ltd (No 2)
- Shortened Case Name:
Towers v Hevilift Ltd (No 2)
 QSC 77
15 Apr 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 267||17 Nov 2016||Judgment for the plaintiff against the first defendant (plaintiff's claim against second defendant dismissed): Henry J.|
|Primary Judgment|| QSC 77||15 Apr 2020||Trial on damages (following on from the trial on liability where judgment was given for the plaintiff against the first defendant:  QSC 267 affirmed on appeal in  QCA 89); judgment that the defendant pay the plaintiff damages in the sum of $5,652,072.74: Henry J.|
|Notice of Appeal Filed||File Number: Appeal 13091/16||15 Dec 2016||Appeal from  QSC 267.|
|Notice of Appeal Filed||File Number: Appeal 4980/20||08 May 2020||Appeal from  QSC 77.|
|Appeal Determined (QCA)|| QCA 89||11 May 2018||Appeal dismissed: Fraser and Philippides JJA and Flanagan J.|