Covington-Thomas v Cth of Australia [No 2] [2007] NSWSC 1059

Covington-Thomas v Cth of Australia [No 2] [2007] NSWSC 1059

The earlier formulation applying a 25% Malec discount to the most probable naval-career future would under-compensate the plaintiff because the finding was that he would have pursued one or other of two likely work futures. The proper calculation was to account for both futures and apply only appropriate vicissitudes. The assumptions underlying the second future were generally reasonable, but uncertainty about retirement justified reducing the mathematical product to $255,000 for loss of earning capacity. The plaintiff would have commuted his naval pension, past pension loss should be discounted only for vicissitudes, and future pension loss should be calculated by normal life expectancy...

Jurisdiction
Australia
Judgment Date
25 September 2007
Procedural Posture
Negligence Claim for Damages Arising From the Melbourne/voyager Collision / Further Judgment on Damages Following Verdict for the Plaintiff and Correction of Damages Calculations
Outcome
Verdict and judgment for the plaintiff in a sum to be calculated reflecting the reasons; defendant to pay the plaintiff's costs.
Legal Topics
['loss of Earning Capacity' 'malec Discount' 'vicissitudes' 'naval Pension and Superannuation' 'interest on Damages' 'slip Rule' 'future Loss of Pension' 'life Expectancy']
['negligence' 'personal Injury Damages'] ['loss of Earning Capacity' 'malec Discount' 'vicissitudes' 'naval Pension and Superannuation' 'interest on Damages' 'slip Rule' 'future Loss of Pension' 'life Expectancy']

Case Brief

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Procedural Posture

Negligence Claim for Damages Arising From the Melbourne/voyager Collision / Further Judgment on Damages Following Verdict for the Plaintiff and Correction of Damages Calculations

Legal Issues

  1. 1 ['How loss of earning capacity should be calculated after correction of an error in applying the Malec v J C Hutton discount.' "Whether the plaintiff's likely alternative career futures should be combined by probability rather than selecting one future and discounting it." "What assumptions should be made about the plaintiff's civilian earnings, retirement age, and superannuation if he had left the Navy after 20 years." 'Whether the plaintiff would have commuted his DFRDB pension.' 'What discount, if any, should apply to past and future naval pension loss.' 'Whether the plaintiff was entitled to interest on past loss despite delay associated with amendment proceedings.']

Ratio Decidendi

The earlier formulation applying a 25% Malec discount to the most probable naval-career future would under-compensate the plaintiff because the finding was that he would have pursued one or other of two likely work futures. The proper calculation was to account for both futures and apply only appropriate vicissitudes. The assumptions underlying the second future were generally reasonable, but uncertainty about retirement justified reducing the mathematical product to $255,000 for loss of earning capacity. The plaintiff would have commuted his naval pension, past pension loss should be discounted only for vicissitudes, and future pension loss should be calculated by normal life expectancy...

Court Disposition

Verdict and judgment for the plaintiff in a sum to be calculated reflecting the reasons; defendant to pay the plaintiff's costs.

Orders

  • ['There should be a verdict and judgment for the plaintiff in the sum to be calculated reflecting these reasons.' "The defendant should pay the plaintiff's costs."]