On 16 February 2021, Justices of Appeal Fraser, McMurdo and Mullins, allowed an appeal by Daniel Peebles to vary the judgement made on his claim for damages for personal injuries. The Queensland Supreme Court: Court of Appeal, varied the judgement sum from $764,345.12 (after a deduction of the refund to WorkCover Queensland) to $967,052.92, amounting to an increase of $202,707.80.
Mr Peebles’ claim arose from a significant back injury sustained on the course of his employment as a truck driver with Kutz Transport Pty Ltd. The key issue giving rise to the appeal was the method used by Justice Jackson in the Supreme Court to determine past and future economic loss, which formed the largest components of the Mr Peebles’ claim for damages.
On appeal Mr Peebles, sought a variance of the amounts awarded for economic loss and associated superannuation contributions. His submissions before the Court of Appeal were as follows:-
- The application of a 50% discount by Jackson J was so unreasonable that an error had been made, claiming that a discount of no more than 20% should have been applied for future economic loss, and 10% for past economic loss; and
- Jackson J erred in using the amount of $1,200.00 as a basis to assess future economic loss, as there was no evidence supporting the use of that amount.
In our previous article on the original decision we provided a summary of the outcome and noted that the discount seemed quite high. Mr Peebles and the Court of Appeal appear to be of the same opinion, albeit not to the same degree.
In the judgment given by McMurdo JA, to which Fraser and Mullins JJA agreed, he found that:-
- The discount on past economic loss should not be the same as that used for future economic loss as Mr Peebles’ health and circumstances for the time period were known (being in the past) and the period in question covered a shorter length of time when compared to that for future economic loss. Accordingly, past economic loss and the related loss of superannuation contributions were re-assessed by applying a discount rate of 10%; and
- While concluding that it was open to Justice Jackson to impose a discount rate of 50% for future economic loss, there was sufficient evidentiary basis for a loss of $1,300.00 per week and future economic losses should be assessed at that amount (but still discounted at 50%), with future loss of superannuation being adjusted on the same basis.
In deciding not to change to the discount rate applied to future economic loss, McMurdo JA noted that issue was whether Jackson J was obliged to apply a lower discount. As no specific error in principle was identified by Mr Peebles, an obligation to apply a lower discount was not found. McMurdo JA further concluded that an inference could not be made that the 50% discount applied was so unreasonable that an error was made.
The decision at the Court of Appeal led to a variance of the award as follows:-
| Future economic loss, adjusted to a multiplicand of $1,300 per week | $526,500.00 (from $486,000) |
| Future loss of superannuation benefits, adjusted on the same basis | $61,811.10 (from $57,056.40) |
| Past economic loss | $313,560.00 (from $174,200) |
| Past loss of superannuation | $29,788.20 (from $16,549.00) |
| Interest on past economic loss | $10,921.29 (from $6,067.39) |
| Total change | $202,707.80 |
While the decision had led to a higher award for Mr Peebles, the decision to uphold the 50% discount on future economic has important implications on future cases where judges use their discretion to apply similarly high discounts. It appears that arguments against high discounts cannot be won on the basis of unreasonableness alone and additional or alternative grounds, as in Mr Peebles’ case should be given.
The writer notes that Mr Peebles was successfully represented by Travis Schultz Law.
The full decision can be found here.
