Hillier v Hewett No. Scciv-00-1141

HILLIER v HEWETT
[2001] SASC 225
Full Court: Olsson, Perry and Gray JJ

OLSSON J This is an appeal against an assessment of damages by a District Court Judge. It is complained that the learned trial judge erred in concluding that an injury to the respondent’s L4-5 disc was caused by her involvement in a relevant motor vehicle accident; that a finding that back pain was experienced by the respondent at about the time of the accident and has remained much the same ever since was against the weight of the evidence; that the award made for pain and suffering was manifestly excessive; and that the award for future economic loss was also manifestly excessive – specifically because, it was said, the learned trial judge did not have particular regard to the respondent’s capacity to take on a second part time job and her capacity to retrain in sedentary work.
The narrative facts
It was never disputed that, on 17 December 1994, the respondent was involved in a motor vehicle accident whilst driving an old Toyota Celica in a northerly direction along a street in Mt Gambier. She was then 22 years of age.
At the time of the accident the respondent was in the process of making a right turn into the driveway of the house where she was living. Her vehicle was struck by a heavy motor cycle which had been travelling in the opposite direction, along the same street. The learned trial judge pointed out that the configuration of the road made it difficult for the respondent to see the oncoming motor cycle. The extent of damage to the car was suggestive of excessive speed on the part of the appellant.
When the proceedings came before the learned trial judge he was informed that liability had, earlier. been determined in the Magistrates Court. It was there ordered that the respondent receive 70% of her damages to be assessed. The matter came before the learned trial judge for that assessment, consequent upon the transfer of the action to the District Court.
In the course of his reasons the learned trial judge made these specific points:-
.the respondent believed that, on impact, her vehicle was, literally, lifted from the ground and pushed a few metres to her left;
.photographs taken post accident revealed that the damage to the vehicle was extensive;
.the impact was clearly violent enough to have caused the injuries complained of by the respondent;
.neither door to the vehicle could be opened and the respondent was extricated through the driver’s side window;
.the respondent had been taken completely by surprise and had not been prepared for the impact which had occurred. She was shocked and upset;
.she was wearing a seat belt at the time of impact and, as her vehicle was pushed to the right, her body would have moved left, relative to the interior of the car;
.it is likely that she did so with considerable force;
.prior to the accident the respondent was of slim build and an accomplished athlete. She had vigorous employment, enjoyed good health and there was no evidence of any relevant pre-existing physical problem;
.much later, on 5 October 1998, an MRI scan was taken of the respondent’s lower back, for the first time. This revealed “degenerative changes in the L4-5 and L5-S1 discs and a ‘small central disc protrusion’ at L4-5, consistent with an annular tear at the rear of the disc and towards the left side”. There was no evidence of any traumatic incident, subsequent to the date of the accident, which might account for the tear;
.the respondent testified that, immediately after the accident, she experienced headache and low back pain. She was taken from the scene to the local hospital, where she was diagnosed as suffering from muscle strain in her lower back;
.the respondent had a number of physiotherapy treatments thereafter and also visited her GP. It was assumed that she would recover in the relatively short term;
.the respondent said that, contrary to such expectation, she has never improved much.
Having so summarised the relevant history the learned trial judge commented:-
“If it is true that the plaintiff did suffer continuous low back pain after the accident, it is probable that that was the cause of it. If she had a significant pain-free period, it is argued that one should look to some later event which brought that to an end and which is responsible for the bulge in the disc. In determining whether or not the plaintiff did suffer continuous pain, one is almost entirely dependent on her. Her truthfulness is crucial. It is clear that she was not accurate in everything she said in evidence. Can I trust her on this crucial matter?”
He thereafter embarked upon a careful and detailed consideration of evidence bearing upon that issue.
It is unnecessary to traverse his analysis in detail in the course of these reasons. Some general remarks will suffice.
The first point to be made is that there can be no doubt that the learned trial judge fully reminded himself of both the deficiencies in the respondent’s evidence, as traversed by the appellant, and also the evidence as to the respondent’s involvement with prohibited drugs and her absconding whilst on bail.
He also directed his mind to the various types of employment in which the respondent had engaged and the circumstances in which each had come to an end. He undoubtedly appreciated that a significant element of a number of forms of employment undertaken involved considerable manual exertion and, at times, a fair degree of constant, repetitive lifting, bending and twisting. What emerged from all of this material was that, unlike many persons with back symptoms, the respondent was a fairly stoic personality. She did not readily succumb to a persistent level of pain and discomfort.
The respondent was in the witness box for a lengthy period of time and subjected to considerable cross examination.
A perusal of the transcript of her evidence reveals that she was a plainly spoken, forthright witness who did not hedge in cross examination. Not unsurprisingly she appears to have emphasised her lower back symptoms in relation to the termination of some forms of employment, whereas they may well not have been the dominant reason for cessation of the work in question. The learned trial judge was clearly well aware of this and made due allowance for that aspect. Her desire not to ventilate a somewhat unfortunate earlier history before her present partner, with whom she has been in a stable relationship, provides a fairly ready explanation for her attitude.
At the end of the day the learned trial judge (inter alia) expressed these views:-
(1)the respondent is a determined, persistent person, who is generally able to find work in an area and at a time when many others fail to do so;
(2)she has fairly constantly deliberately suppressed any details of her medical history and not complained of pain or discomfort because she has appreciated that, if she made disclosure, this would seriously prejudice employment possibilities;
(3)she has been a steady employee, who is prepared to take training courses to fit her for work;
(4)[he appears to have accepted the propositions that] the respondent “is a quiet woman, not given to complaint, who simply soldiers on”, despite any symptomatology;
(5)there is some extraneous evidence to support the proposition that she has experienced lower back pain over a long period of time and taken analgesics for it – given that this support may have emanated from her partner;
(6)there is no evidence of any specific incident, other than the accident, which led to any alteration or exacerbation of the respondent’s pain. As he put it, “There must have been incidents which could have affected a degenerate disc. There have been periods of work which could have done so. There is no evidence it did”.
For present purposes the critical conclusions of the learned trial judge were expressed in these terms:-
“Despite the reasons for caution which I have detailed, I accept her and conclude that it is probable that she did injure her L4-5 disc in the accident and that the appearance in the later MRI is the result.
However, there is no predictable correlation between what the MRI reveals and the precise level of disability or pain suffered by the plaintiff.   It seems that many people may have similar looking bulges but be free from symptoms.   Others will not be so fortunate.   I must assess, largely on her evidence alone, how it has affected the plaintiff.
I accept that there is an underlying level of virtually constant pain.   I expect that level of pain is increased when she works (or otherwise exercises), presumably broadly in proportion to the level of, in particular, bending, lifting and twisting.   When the level of work is more than moderate, she gets pain sufficiently serious to cause her to take major analgaesics and to rest.   She neglects duties at home which I am sure she would not otherwise neglect.   I do not see her as a lazy person, hanging on any excuse to avoid work.   She has, albeit with difficulty, coped with jobs which might have deterred fitter people.   She has recently returned to netball at a social level.   At school she had been a good player.   She says she is now careful in her movements.
The bulge in her disc will not get better.   It may stay the same, at least for a long time.   There is a significant chance that, at some unpredictable time in the future, it will further degenerate, or some other incident will precipitate a worsening.   Such incident may well be one which, but for the original injury, would have posed no problem. She will be wise to try to avoid work involving excessive bending, lifting or twisting.   She will judge for herself what level of pain she can tolerate and select her activities accordingly.   From time to time she will overdo it and will have periods of increased pain and incapacity.
If she is lucky, she will develop a greater tolerance for pain.   If she is unlucky she may find that the bulge increases in size, even to the extent of requiring a discectomy.   That could cost many thousands of dollars and involve at least 6 months off work.
If she has children, I expect her back will be painful.   She may be restricted in how she plays with and raises them.
In short, although the future is not at all clear cut, she has been changed from a person free from disability to one who will suffer a fair bit of pain and who would be wise to restrict her area of employment.   It appears that she was always destined for unskilled and semi-skilled manual work.   In that field her disability is significant.   There is no great dispute about the doctor’s expectations for her.   They are reflected in my findings, but do not need to be set out at length.”
The assessment of damages
The learned trial judge ultimately assessed damages in the sum of $135,000, arrived at as under:-
Non economic loss        $28,600.00
Special damages
     past  $400.00
     future  $1,000.00
Loss of earning capacity
        past  $5,000.00
        future                   $100,000.00
TOTAL  $135,000.00
For the purposes of arriving at damages for non economic loss he selected the figure of 20 on the 0-60 scale. Plainly this was the product of a consideration of facts such as the young age of the respondent, his assessment that she has continuously suffered and will continue to suffer an ongoing level of pain and discomfort, the fact that she has some existing limitations on her activities and the possibility that her condition will get worse. He bore in mind that, as earlier recited, “If she is unlucky she may find that the bulge [in her L4-5 disc] increases in size, even to the extent of requiring a discectomy”. I have also recited his further conclusion that, if she has children, the expectation is that her back will be painful and she may be restricted in how she plays with and raises them.
The learned trial judge approached his assessment of economic loss on the footings that, whilst past loss has been relatively small, “the chances that she will deteriorate in future greatly outweigh those that she will learn to cope better, or not deteriorate”. She will probably need to retrain to less vigorous employment than that which she has been undertaking. Certainly, even though she has been in the habit of not revealing her true medical history to doctors examining her for employment purposes, she will need to “limit herself in what work she applies for”.
Although he carried out some empirical calculations based on a notional weekly monetary loss, he did so merely as a guide and check against gross error. His final reasoning was to the following effect:-
“More probably she will remain in her present 20 - 30 hours per week employment for the foreseeable future. But for her injury, I expect she would look for full time work. Last year she earned (nett) nearly $20,000. If I assume 50 weeks per year of 25 hours per week, that gives an hourly rate of about $16 per hour. A further 15 hours of work at that rate would generate $240 per week. At least when she finishes her present 3 month posting, she is, theoretically, able to do other work - as she did for a while. Again, this gives some guidance.
There are contingencies that she will retrain to get more lucrative work. There are contingencies that she will get worse. If so, it is not possible to guess when that might be. There is no reason to expect it in the immediate future, though it is possible. Equally, she may remain virtually unchanged for the rest of her life. There is little point in further reciting the obvious, but imponderable contingencies.
Doing my best to weigh them fairly, I assess future loss of earning capacity, as reflected in likely lost earnings, at $100,000.”
Issues arising on the appeal
In arguing the appeal, Mr Kourakis QC, of senior counsel for the appellant, first joined issue with the conclusions of the trial judge that it was probable that the injury to the respondent’s L4-5 disc was the product of the accident of 17 December 1994 and that her back pain began at the time of the accident and remained much the same ever since. He submitted that those conclusions were against the weight of the evidence, with the necessary consequence that the award for pain and suffering was manifestly excessive in the circumstances.
He primarily sought to found those contentions on what, he argued, was the manifest lack of credit of the respondent and what he termed the glaring improbabilities in light of the respondent’s lies and some relatively heavy work which she had performed at times since the accident.
In the course of his submissions Mr Kourakis QC strongly contended that, in the course of her evidence, the respondent had patently perjured herself. He went so far as to infer, if not directly assert, that not only did her lies fundamentally undermine the evidence of the respondent to the extent that it could not logically be concluded that her evidence of continuous pain and discomfort following the accident could be accorded weight; but, also, that, seemingly, the learned trial judge had simply failed to appreciate and adequately take into account the nature, extent and significance of the lies told.
The first premise of that submission begs the question as to whether it can fairly be said that it is manifest that the respondent did perjure herself in the manner suggested, or that, as I took Mr Kourakis QC to suggest, the true situation only emerged on cross examination. In my opinion, neither propositions were made good.
Mr Kourakis QC said that the “high water mark” of his contention as to perjury could be perceived by contrasting the respondent’s evidence-in-chief recorded at AB 30-31 (bearing on the circumstances in which she ceased work as a millhand) and what emerged in cross examination on that issue, as recorded at AB 95-97.
The short riposte to that argument is that, the evidence-in-chief of the respondent, properly construed, in fact disclosed that the factors touched on in cross examination did have a bearing on the cessation of the relevant employment.
In examination-in-chief, the following exchanges occurred at AB 30:-
“Q.How did you come to stop working there.
A.Due to the back pain and because I’d actually gotten the written warning and because of my warnings and stuff, they’d made it so – they were going to close down a shift of the LVL anyway and some of us had to be transferred over to the sawmill to work over there.
Q.Did you have some other personal problems affecting you at that stage.
A.Yes, I did.
Q.What were they.
A.My boyfriend and I had actually been accused of breaking into people’s houses.
Q.Did you have another problem during this period that you were working at the mill.
A.No, just my back and the days off and just the written warning. When I went over to the sawmill it was just heavy, the work over there was just heavy and I wasn’t prepared to stick with it.
Q.Where did you go after you left the sawmill.
A.I actually went to Brisbane to start fresh.
Q.When you say ‘start fresh’ what do you mean by that.
A.Because at the time my boyfriend and I had actually gotten into the wrong crowd and started taking speed and it got that bad that the dealer was coming to my place and having it all there and my father was home and so we fled to Brisbane to get away from it.”
(Emphasis added)
It seems to me that, with respect, Mr Kourakis QC overlooked the true significance of the words “and stuff” in the first answer recited above. It was plainly intended to advert to what immediately followed. There was simply no logical purpose in leading the evidence as to personal problems if this was not intended to “flesh out” the initial reference to “and stuff”.
It follows that it was never correct to suggest that, in evidence-in-chief, the respondent maintained the stance that cessation of the particular employment was solely due to her back problems or was other than the consequence of a complex or causative factors, including her then drug problems.
There is no doubt that, on this and certain other matters, the respondent was something of a reluctant dragon, but, as already pointed out, there was a clear reason for this.
The suggestion that the learned trial judge somehow failed to appreciate the appellant’s contentions as to the respondent’s credit and the significance of them as to the issue of causation really verges on the fanciful.
Mr Kourakis QC was constrained to concede that, in his final address, trial counsel for the appellant drew no punches. He did not hesitate to seek to brand the respondent a “liar” whose assertions as to the existence of continuous back pain from the time of the accident ought to be rejected. Indeed, it was firmly put to the respondent in cross examination that she had lied.
There can be no doubt that the learned trial judge had well in mind both these assertions and the details of what were said to be other lies told by the respondent. Equally, it is plain that, in assessing the evidence, he appreciated that there were some inconsistencies in the respondent’s evidence and that what she said needed to be reviewed with caution.
However, at the end of the day, cognisant of the criticisms advanced on behalf of the appellant but having had the advantage of hearing the respondent give evidence over a lengthy period of time and considering what she said in the context of the balance of the evidence, the learned trial judge had no hesitation in accepting her as a witness of truth on the causation issue. Bearing in mind his careful, analytical reasons, as I have attempted to summarize them, I find it impossible to conclude that, on its own appraisal of the evidence, this Court ought to take the quantum step of characterising the findings made as a glaringly improbable result. On the contrary, I consider that the assessment made was fairly open and ought not to be disturbed. I would reject this ground of appeal.

I move on to the criticisms advanced concerning the actual assessment of damages made.
Mr Kourakis QC declaimed that the adoption of the figure “20” on the 0‑60 scale for non economic damage was manifestly too high. It was, he said, a level properly attributed to situations in which the injured person had had to undergo something of the nature of a discectomy, with its sequelae. It was too high for the degree of pain, suffering and disability which had been occasioned to the respondent in this case, even accepting the findings of the learned trial judge at face value.
It seems to me that this argument does not give sufficient recognition to the fact that the respondent’s consistent, somewhat stoic, adherence to the work ethic tends to mask the real present and likely future impact of her injuries upon her. A figure is to be chosen on the bases that:-
.she has experienced a not inconsiderable, constant level of discomfort since the time of her injury. The clue to the degree of that impact is to be derived from the evidence of her present partner as recorded at AB 220-221. After a full day’s employment she suffers significant pain and needs to rest;
.she has attempted use of a TENS machine to reduce her symptoms;
.there are real limitations on the range of her activities and her doctor has advised her not to resume active sport which will put her back at risk;
.she is still a young woman who has a long future vista of constant pain and discomfort, even if she stoically attempts to live with and overcome it. She is vulnerable to further injury or aggravation and may need to have a discectomy in the future. As the learned trial judge put it – “the chances that she will deteriorate in future greatly outweigh those that she will learn to cope better, or not deteriorate”;
.if she has children this may well cause an exacerbation of her symptoms; and
.the physical limitations caused by her injury will not only restrict the scope of her general social and desired sporting activities, but will also prevent her from participating in the types of employment which she might otherwise prefer and enjoy.
These features combine to indicate that, although the learned trial judge may have elected for a figure at the top end of the scale which could reasonably be attributed to the sequelae of the injury, it cannot be said that his selection was so extreme or idiosyncratic as to warrant interference by this court. I would reject the criticisms advanced.
Finally, I turn to the submission that an assessment of $100,000 for non economic loss is manifestly excessive.
Mr Kourakis QC argued that the empirical data before the learned trial judge, adjusted in light of relevant contingencies, did not justify an assessment in excess of about $58,000.
He pointed out that, as is common ground, the calculations set out in paragraph 54 of the reasons published by the learned trial judge were erroneous because they did not calculate the deduction for income tax in a correct manner. The weekly rate should be about $184, rather than $240. This could, he inferred, have led to an inflated end result in the reasoning of the learned trial judge.
As I understood his submission, the correct commencement point ought to be the net earnings of the respondent in the 1999-2000 year as a part time contract worker for Australia Post. This, on the undisputed figures put to the learned trial judge, indicated a net loss of the order of $66 per week. When the actuarial multiplier of $877 was applied to this, the resultant computation was of the order of nearly $58,000. A proper balancing of contingencies indicated that adverse contingencies were about in balance with favourable contingencies. Thus the assessment should be reduced to a sum no greater than $58,000.
I consider, for a number of reasons, that this contention cannot withstand serious scrutiny.
First and foremost, it must be kept firmly in mind that the respondent is to be compensated for loss of earning capacity and not loss of earnings (Medlin v SGIC (1994-1995) 182 CLR 1). Any empirical calculation made is no more than a starting point for consideration and care must be taken to ensure the relevance and validity of any figures used.
In the instant case the learned trial judge was supplied with some details of actual earnings of the respondent between 1997 and 2000, which were virtual common ground as to their accuracy.
However, very real questions arose as to their significance and how they could profitably be used in the context of this case.
The figures supplied need to be considered against a background of the evidence touching on the respondent’s employment history. The major features emerging from this are:-
.the respondent’s employment has essentially been of an unskilled or semi skilled nature;
.she did not achieve high academic attainments, but, nevertheless, has a clear capacity for further training;
.there has been a fairly consistent history of employment instability, although, in the past, some, if not much, of this was attributable to her then involvement in the drug scene – a situation which, currently, no longer exists;
.since the accident, and particularly of recent times, her employment has been of a part time or casual nature. She has, at times, attempted what appears to have been relatively heavy work and/or tasks involving repetitive bending, twisting or lifting, which are really inappropriate to her physical condition and likely either to exacerbate her physical problems, or at least precipitate marked levels of pain and discomfort;
.since February 1998 she has been employed at Mt Gambier by Australia Post in its mail sorting operations. In this area the work has been essentially of a part time nature. The number of hours worked and the precise duties involved (some of which encompass relatively heavy work) tend to vary with the shift in question. The respondent’s supervisor tends to employ part time workers on three monthly contracts, rotating them from shift to shift, so that they become multi skilled;
.the hours worked by the respondent in 1999 and 2000 have therefore varied to some degree. For the most part, she has been working a basic 30 hours per week. However, because she has been regarded as a good, willing employee, she tends to be offered additional hours at times – particularly when, for one reason or another, the staff is not up to full strength. At these times she may achieve up to 35 hours per week;
.her present type of employment seems reasonably secure at the moment, because she is regarded as a good employee. On the other hand, as a matter of plain common sense, I think that Mr Martin, of counsel for her, is undoubtedly correct when he says that, having regard to developing and changing technology and (perhaps) different management personnel who may seek to erect new staffing arrangements, it is unlikely that she will remain in her present situation indefinitely;
.if, for any reason, she cannot continue in her present employment environment, she will, as the learned trial judge appreciated, be competing in a restricted country employment environment at a marked comparative disadvantage, having regard to her injury and limitations on the type of physical activities which she can undertake. Superimposed on that situation is the practical consideration emerging from the conclusion that the chances are that the respondent’s condition may well deteriorate in the future.
As Mr Martin, counsel for the respondent, pointed out, there is a note of unreality attendant upon adopting a weekly loss figure of the order of $66 per week as a commencement point, as the appellant would have this court do. Whilst it is true that, in the immediate pre trial period, that was a reflection of the respondent’s then actual earnings, it must be borne in mind that her hours had been inflated because here had been a vacant, unfilled position in Australia Post for some time. There is no guarantee that this will continue indefinitely. More importantly, the evidence disclosed that the respondent was suffering substantial discomfort from attempting quite heavy work during those additional hours. It appears that it was not until he appeared at trial as a witness that her supervisor realised this situation. The probabilities are that some adjustment will be made to reduce her workload and, potentially, her hours. Incidentally, his ignorance of the situation is somewhat eloquent testimony to the stoicism exhibiting by the respondent in simply pressing on with her assigned tasks without complaint, notwithstanding discomfort experienced by her.
For that reason I would accept Mr Martin’s contention that a more realistic approach is to use the average net loss derived from earnings over the last two or three years. This is of the order of $107 pa, which throws up an actuarial capitalised sum of about $94,000. However, that is only an indicative commencement point. As earlier stressed, we are here concerning ourselves with loss of earning capacity.
Additionally there are important contingencies to be borne in mind. Some of the salient features of these are:-
.it is possible that she may be able to perform a limited amount of supplementary work such as in the hospitality area or child minding – although past history suggests that this is relatively minimal.
.she may be able to train for more skilled work, but there is little or no evidence as to what opportunities may be open to her and what other work would be available, with her physical capacity, in the Mount Gambier area.
.if she has a child or children she may necessarily lose work opportunity in any event.
.there is a significant possibility that, as time goes by, there may well be a deterioration in her condition, with a consequent diminution in earning capacity. She is clearly vulnerable, in the physical sense, and it is well within the bounds of possibility that she may even require a future discectomy.
In my opinion it is to be inferred from the reasons expressed by the learned trial judge that he proceeded on the basis that, on balance, the adverse contingencies are likely to outweigh the favourable contingencies. Common sense suggests that this must be so. Loss of earning capacity therefore needs to be assessed from that perspective.
It follows, from the foregoing considerations, that an assessment of $100,000 for future economic loss, whilst being near the top end of the spectrum, is by no means extravagant or unrealistic. I consider that the appellant has fallen far short of demonstrating that it is manifestly excessive.
Conclusion
All in all, on an objective appraisal of the whole of the evidence, I am unable to perceive any substance in the various criticisms advanced by the appellant before this Court. I would dismiss the appeal.
PERRY J I agree with Olsson J that the appeal should be dismissed, substantially for the reasons given by him.
The award in this case, particularly for future loss of earning capacity, was at the top of the range, but the appellant has failed to demonstrate that it is manifestly excessive.
I would emphasis that ordinarily, it will be appropriate to assess future loss of earning capacity by reference to the level of earnings over the last twelve months or so before trial, with whatever adjustments and allowances the circumstances of the particular case might justify. But I agree that in this case, the respondent’s level of earnings over that period was not a reliable guide to her long-term future earning capacity.
I make the further point that while it is true that the award is for loss of earning capacity rather than loss of earnings, the assessment of damages on this head must reflect the extent to which the loss of earning capacity will more than likely be productive of financial loss. The award must compensate for projected financial loss, not for loss of a capacity which might never have been utilised, or loss of a capacity the application of which might in any event have been interrupted for reasons unassociated with the compensable injury.
GRAY J This is a defendant’s appeal against an assessment of damages.
I have had the opportunity of reading the reasons of Olsson J. I agree that the appeal should be dismissed but in part for different reasons. I adopt Olsson J’s detailed treatment of the facts. I recount them in summary form when necessary for my reasons.
Background
The Collision and Injury
A motor vehicle collision occurred on 17 December 1994 at Mount Gambier between the defendant’s motor cycle and a motor vehicle driven by the plaintiff.[1] The plaintiff was turning right into the driveway of her home and was travelling slowly at the time. The defendant was riding at considerable speed. A heavy impact occurred. Liability and apportionment were agreed. The plaintiff was entitled to recover 70 per cent of her damages to be assessed.
[1] I refer to the parties as “plaintiff” and “defendant” throughout this judgment.
The plaintiff claimed that she sustained an injury to her lower back. She attended the Mount Gambier Hospital outpatient department. She received physiotherapy treatment for three months. She claimed to suffer ongoing pain, in particular, when bending and lifting and when required to stand on hard surfaces for extended periods. In October 1998 magnetic-resonance imaging was undertaken. The scan revealed degenerative changes with a central disc protrusion at the lumbar 4-5 level. This was consistent with an annular tear of the disc. It was common ground that a motor vehicle collision could have led to such injury. It was also common ground that the existence of such a condition was consistent with the low back pain of which the plaintiff complained. An issue at trial was whether on the balance of probabilities, the negligence of the defendant was a cause of the disc protrusion, the annular tear and the plaintiff’s ongoing disability.
The Assessment
The trial judge made the following assessment:
“Non economic loss   $28,600.00
Special damages
past  $400.00
future   $1,000.00
Loss of earning capacity
past   $5,000.00
future  $100.000.00
TOTAL  $135,000.00
The plaintiff is to have 70% of that amount, which is $94,500.”
The defendant submitted that this assessment was excessive.
Findings and Conclusions of the Trial Judge
The trial judge summarised the central issue as follows:
“If it is true that the plaintiff did suffer continuous low back pain after the accident, it is probable that that was the cause of it. If she had a significant pain-free period, it is argued that one should look to some later event which brought that to an end and which is responsible for the bulge in the disc. In determining whether or not the plaintiff did suffer continuous pain, one is almost entirely dependent on her. Her truthfulness is crucial. It is clear that she was not accurate in everything she said in evidence. Can I trust her on this crucial matter?”
At trial counsel for the defendant submitted that the plaintiff should be disbelieved and her account of ongoing pain rejected. However the trial judge accepted the plaintiff as a truthful witness. In coming to that conclusion he considered the many criticisms made about her evidence. The trial judge gave detailed consideration to those criticisms and then made the following finding:
“Despite the reasons for caution which I have detailed, I accept her and conclude that it is probable that she did injury her L4-5 disc in the accident and that the appearance in the later MRI is the result.”
Having reached this conclusion the trial judge then made findings about the plaintiff’s ongoing level of pain and disability:
“I accept that there is an underlying level of virtually constant pain. I expect that level of pain is increased when she works (or otherwise exercises); presumably broadly in proportion to the level of, in particular, bending, lifting and twisting. When the level of work is more than moderate, she gets pain sufficiently serious to cause her to take major analgesics and to rest. She neglects duties at home which I am sure she would not otherwise neglect. I do not see her as a lazy person, hanging on any excuse to avoid work. She has, albeit with difficulty, coped with jobs which might have deterred fitter people. She has recently returned to netball at a social level. At school she had been a good player. She says she is now careful in her movements.
The bulge in her disc will not get better. It may stay the same, at least for a long time. There is a significant chance that, at some unpredictable time in the future, it will further degenerate, or some other incident will precipitate a worsening. Such incident may well be one which, but for the original injury, would have posed no problem. She will be wise to try to avoid work involving excessive bending, lifting or twisting. She will judge for herself what level of pain she can tolerate and select her activities accordingly. From time to time she will overdo it and will have periods of increased pain and incapacity.
If she is lucky, she will develop a greater tolerance for pain. If she is unlucky she may find that the bulge increases in size, even to the extent of requiring a discectomy. That could cost many thousands of dollars and involve at least 6 months off work.
If she has children, I expect her back will be painful. She may be restricted in how she plays with and raises them.
In short, although the future is not at all clear cut, she has been changed from a person free from disability to one who suffer a fair bit of pain and who would be wise to restrict her area of employment. It appears that she was always destined for unskilled and semi-skilled manual work. In that field her disability is significant. There is no great dispute about the doctor’s expectations for her. They are reflected in my findings, but do not need to be set out at length.
...
In my view, the chances that she will deteriorate in future greatly outweigh those that she will learn to cope better, or not deteriorate. This is particularly so if she attempts long term work like that in the mill or the meatworks - and that is the sort of work she is likely otherwise to have pursued.”
Causation
As earlier observed, the trial judge described the central factual issue as one of credibility. The resolution of this issue led to a consideration of the issue of causation. When addressing causation the trial judge said:
“The question is whether that condition was caused by the motor vehicle accident, or by other events between the time of the accident and the MRI.”
and
“If it is true that the plaintiff did suffer continuous low back pain after the accident, it is probable that that was the cause of it.”
It is sufficient for the defendant’s negligence to be a material cause of the plaintiff’s ongoing disability. The plaintiff need only establish that the defendant’s negligence materially contributed to her ongoing disability. The fact that there may have been other causes does not exonerate the defendant[2]. To suggest, as the trial judge did, that the issue was whether the accident was the cause was to place an unnecessarily onerous burden on the plaintiff. It was sufficient that the accident was a cause.
[2] March v E & M H Stramare Pty Limited (1990-91) 171 CLR 506 at 509, 524, 530; Bennett v Minister of Community Welfare (1992-1993) 176 CLR 408 at 429; Medlin v The State Government Insurance Commission (1994-95) 182 CLR 1 at 7; Chappel v Hart (1998-99) 195 CLR 232.
The Role of the Appellate Court
Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission[3] said at (479):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
[3] (1992-1993) 177 CLR 472 - see also Rosenberg v Percival [2001] HCA 18 per Gleeson CJ at [37-39]

These principles were approved in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)[4]. Kirby J said at (323):
“Appellate judges must necessarily perform their statutory function. They must rehear the matter and form their own conclusions on the evidence recorded at the trial. Rising to their duty, they must condescend to a re-examination of the facts, if their statutory charter so requires or permits. Yet that re-examination obliges appellate judges to take into account, and give full weight to, the advantages which the trial judge had and which, in the nature of their different functions and purpose, they may not have.
None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.”
Issues on Appeal
[4] (1999) 73 ALJR 306
Credibility of the Plaintiff
Counsel for the defendant submitted that the plaintiff had been guilty of “perjury”. It was said that this echoed a submission at trial that the plaintiff had deliberately deceived the court.
A review of the transcript shows that a suggestion in these terms on most of the issues raised was not directly put to the plaintiff in cross examination. I consider that this failure produced prejudice to the plaintiff. The remarks of Deane J in Smith v New South Wales Bar Association[5] at (271) are apposite:
“If the members of the Court of Appeal were convinced that the appellant had deliberately given false evidence, they were entitled to take account of that in their assessment of the effect of the evidence as a whole and in their decision about whether the particularized complaints of alleged professional misconduct against the appellant, which were the subject of the proceedings before them, had been made out. Those particularized complaints were that the appellant had sought to appear for Mr. Knight without the intervention of an instructing solicitor and that the appellant had deliberately misled the Penrith Local Court by informing it that he was instructed by Mr. McDonald and in certain other specified respects. They were not amended to include a specific complaint that the appellant had deliberately given false evidence before the Court of Appeal. Nor was the appellant ever called upon to answer such a specific complaint or given an appropriate opportunity of being heard in relation to it. In those circumstances, the members of the Court of Appeal were not entitled to make an adverse order against the appellant which was wholly or partly based on a finding that the appellant was guilty of professional misconduct in that he had deliberately given false evidence before them. I turn to explain why that is so.
There are many circumstances in which a trial judge ... is required to consider whether a party or a witness has been deliberately untruthful in the course of giving evidence before it. An obvious example of such a case is where there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake. Unless it be truly necessary for the purpose of disposing of the particular case, however, a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made. Ordinarily, a party or other witness will not be concerned or entitled to set out to establish that, if his or her oral evidence is ultimately found to be mistaken, the mistake was an honest one. As a consequence, material which serves only to establish that a party or other witness subjectively believes that his or her evidence is correct is likely to be inadmissible in the proceedings in which the evidence is given. And there is good reason for that. The length, cost and hazards of litigation would be intolerably increased if each party or other witness was required not only to deal with the issues before the particular court but also to anticipate the ultimate rejection of his or her evidence and seek to establish that, notwithstanding that it was mistaken, it was honestly given."
[5] (1992-93) 176 CLR 256
Counsel for the defendant provided four examples of alleged instances of “perjury” by the plaintiff. Counsel only explored one in detail as it was said to represent “the high water mark”. That issue concerned the plaintiff’s reasons for ceasing employment. Close analysis reveals consistency in the plaintiff’s evidence in chief and in cross examination. On both occasions she indicated that there were a number of reasons why she left work, one being back pain. It was not suggested to the plaintiff that she was telling lies, deliberately misleading the court, or giving “perjured” evidence.
An analysis of the remaining three examples provides no support for Counsel’s submission. Although a number of inconsistencies emerged between the plaintiff’s evidence in chief and in cross examination, on each occasion there was an explanation for the inconsistency. Those explanations negated the suggestion that the plaintiff was telling deliberate lies to enhance or boost her claim for damages.
The trial judge had careful regard to the inconsistencies in the plaintiff’s evidence. He accepted her explanations. Having found the plaintiff to be a credible witness it did not follow that she would be regarded by the trial judge as a totally reliable witness. By credibility I refer to the extent to which the evidence of a witness can be accepted in the sense of honest evidence. I use reliability in the sense of accuracy. An honest witness may give unreliable evidence in the sense that it is inaccurate or mistaken. The trial judge carefully weighed these matters in coming to his ultimate findings of fact.
The trial judge expressly considered the issue of “truthfulness”. He posed the question “can I trust her on this crucial matter?” When making his findings on credit he noted the “reasons for caution”. The trial judge considered each of the criticisms advanced by the defendant before accepting the plaintiff’s evidence. No error on the part of the trial judge has been demonstrated in regard to his findings on credit.
As observed, the trial judge’s findings depended primarily on the credibility of the plaintiff. It has not been established that the trial judge failed to use or palpably misused his advantage. It has not been shown that he acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence or that he acted on evidence which was glaringly improbable. I have reviewed the evidence, the submissions of counsel and the reasons of the trial judge. In my opinion, the trial judge’s conclusions were open on the evidence.
Loss of Earning Capacity
Counsel for the defendant submitted that the trial judge erred in his assessment of the plaintiff’s future economic loss. The written outline of argument provided:
“The learned Trial Judge assessed future economic loss on erroneous assumptions”
and that:
“The learned Trial Judge has assessed future economic loss on assumptions which lack any evidential foundation.”
It was contended that the trial judge used a loss of $100 per week to which he applied an actuarial multiplier to arrive at a lump sum of $90,000.00. It was complained that the evidence did not support a loss of $100.00 per week.
Counsel for the plaintiff emphasised that the trial judge made an assessment of loss of earning capacity. It was said that the trial judge did not embark on any strict mathematical calculation of economic loss and that the calculations were only used as a guide to the overall assessment.
Counsel for the plaintiff submitted that the evidence did not permit precise findings of a weekly loss to be made. It was said that the trial judge’s findings as to injury led to the inevitable conclusion that the plaintiff was unfit for heavy activity including, lifting and bending or standing for long periods. She had lost the capacity for heavy work but remained fit for light work. The trial judge faced the difficult task of assessing the loss of earning capacity of a young person. The assessment could only be made on a broad basis.
In Medlin v The State Government Insurance Commission[6] Deane, Dawson, Toohey and Gaudron JJ said at (4):
“... in this country an injured plaintiff recovers damages for loss or impairment of earning capacity as distinct from the direct recovery of past or future lost earnings. - Arthur Robinson (Grafton) Pty. Ltd. v. Carter (1968) 122 C.L.R. 649, at p. 658; O’Brien v. McKean (1968) 118 C.L.R. 540, at p. 546.)
McHugh J said at (16):
“In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings - See Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed. (1990), p. 224, esp. fn. 3. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because ‘an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss’ - Graham v. Baker (1961), 106 C.L.R., at p. 347. Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.”
[6] (1994-95) 182 CLR 1
As earlier observed counsel for the defendant’s submission focused primarily on future loss of earnings rather than loss of earning incapacity. This submission was coupled with an attack on the trial judge’s mathematical calculations. It distorted the approach of the trial judge. In his reasons the trial judge emphasised that his mathematical calculations were only of “some guidance”. His Honour said:
“There are contingencies that she will retrain to get more lucrative work. There are contingencies that she will get worse. If so, it is not possible to guess when that might be. There is no reason to expect it in the immediate future, though it is possible. Equally, she may remain virtually unchanged for the rest of her life. There is little point in further reciting the obvious, but imponderable contingencies.
Doing my best to weigh them fairly, I assess future loss of earning capacity, as reflected in likely lost earnings, at $100,000.”
These passages demonstrate that the trial judge assessed damages for the plaintiff’s future loss of earning capacity. In that process, regard was had to likely lost earnings. Consistent with authority, the trial judge treated his mathematical calculations (made with the aid of actuarial evidence) only as a guide.
As Aickin J said in Cullen v Trappell[7] at (38):
“A figure for loss of earning capacity can properly be arrived at only by reference to a number of factors, most of which involve an exercise of judgment and not mere arithmetic.”
[7] (1980-81) 146 CLR 1
This view finds overwhelming judicial support. In Todorovic v Waller[8] Gibbs CJ and Wilson J said at (412-413):
“It is true that as the assessment of damages has become more sophisticated, calculations are made in an attempt to achieve greater precision. Such calculations may sometimes give a false appearance of accuracy. Some of the figures on which they are based are the result of estimate or speculation. In the case of loss of earning capacity it is necessary to compare what the plaintiff might have earned if he had not suffered the injury with what he is likely to earn in his injured condition. In many cases this means that the court has to engage in ‘a double exercise in the art of prophesying’: Paul v Rendell (1981) 55 ALJR at p 372; 34 ALR , at p 571 ... For these reasons, damages for financial loss likely to result from personal injury ‘can only be an estimate, often a very rough estimate, of the present value of his prospective loss’: British Transport Commission v Gourley [1956] AC 185, at p 212 per Lord Reid. Ultimately the process must always be one of judgment rather than calculation.”
[8] (1981-82) 150 CLR 402
Considerable debate has taken place about the proper role of actuarial calculations in the process of assessing damages.
In Australia it has been generally been accepted that actuarial evidence can be of assistance as the evidence allows more accurate assessments to be made. However in Cullen Gibbs J said at (13):
“I can see no justification for using a method of an actuarial or mathematical kind in assessing damages, without making the allowances that the method itself requires in order to give the correct result.”
The issue of the assessment of damages arising from a diminished earning capacity arose in Todorovic. Gibbs CJ and Wilson J said at (414):
“The fact that a lump sum is being given instead of various sums over the years ‘does, of course, in every case demand that the product of the initial multiplication must be discounted at some assumed rate of interest to ascertain the present value of the notional future earnings’: Bresatz v Przibilla (1962) 108 CLR 541 at p 543. If the award is not discounted, the plaintiff will necessarily be over-compensated. The process of discounting can only be dispensed with if some other consideration completely offsets the advantage that a plaintiff gains by receiving at the date of a judgment a sum that if he had not been injured would have been paid to him at some time in the future, or a sum that he will be required to expend at some time in the future.
Different methods of discounting are used in different parts of the world, but they are of course intended to achieve the same result. The method that has been adopted in countless cases in Australia is to use tables, prepared by actuaries, which show the present value of a given amount, (e.g. a dollar) of income receivable periodically over a given number of years. The tables reveal the sum which, if invested at the discount rate, would suffice to enable periodic drawings of the given amount to be made from income and capital over the given number of years, so that at the end of that period both capital and income would be exhausted. Obviously the assumption is that the drawings will at first be made mainly out of income, but that there will be increasing resort to capital as time goes on.”
In Todorovic the court gave detailed consideration to the selection of a rate of discount and as to how that rate should be fixed. The court resolved on three per centum. A similar issue arose in fixing a rate of interest to be included in judgments for damages for personal injuries. In addressing this latter issue, King CJ in Wheeler v Page[9] said at (6-7):
“Moreover, the High Court in Todorovic v Waller has given authoritative judicial recognition to the fact that a substantial portion of currently prevailing rates of interest merely compensates the investor for the diminution which inflation works on the value of the principal sum. It seems to me that these legal developments require a reconsideration of the practice as to the rates of interest used in computing the interest to be included in judgments.
...
Damages for pain, suffering and loss of the amenities of life sustained before trial, are assessed at trial on the basis of the value of money at the date of the assessment. There is no need to compensate the plaintiff for diminution in the value of money. Current interest rates, to the extent that they compensate for such diminution, are not appropriate to compensate the plaintiff for being kept out of his money. This would be achieved by using a rate which represents the difference between the prevailing rate for secure investments and the rate of inflation.
The statute places the rate of interest in the discretion of the trial judge. The case stated asks this Court, in effect, to indicate a rate of interest which, if used, would be regarded as a sound exercise of discretion. The reasons which led the High Court in Todorovic v Waller to indicate a discount rate for use in computing damages, are valid also, I think, for this Court to indicate a rate to be used in computing interest in judgments, subject, of course, to the discretion of the trial judge to vary that rate in accordance with the facts of a particular case.
What should that rate be? The precise difference between the prevailing rate of interest and the prevailing rate of inflation will vary from time to time. It is desirable, however, that there should be some stability in the rate used by judges. In Fire and All Risks Insurance Co Ltd v Callinan (1978) 21 ALR 375 the High Court emphasized that the process of arriving at an appropriate award of interest ‘should not be permitted to assume an importance incommensurate with its relative effect upon the total sum for which judgment is given.’ It would be quite wrong for the appropriate rate of interest to be made the subject of evidence. I think that the best course is to adopt a rate which appears to approximate the rate of interest applicable in times of stable currency value and which may therefore be supposed to exclude the influence of inflationary factors. I think that this is really what the High Court attempted to do in relation to the discount rate in Todorovic v Waller. In that case the Judges of the Court, despite their different views, agreed upon a rate of three per centum per annum. I see no reason to adopt a different approach for the present purpose. The rate fixed in Todorovic’s case takes into account, however, that the notional investor must pay tax on the notional income from the investment. But for that factor the rate would have been somewhat higher, perhaps four per cent.”
This passage was approved by the High Court in MBP (SA) Proprietary Limited v Gogic[10] at (661).
[9] (1982) 31 SASR 1
[10] (1990-91) 171 CLR 657
These cases make it clear that the judicial view is that the “real” rate of interest adjusted for taxation is the appropriate discount rate. The “real” rate is the rate which represents “the difference between the prevailing rate for secure investments and the rate of inflation”.
The Wrongs Act 1936 (SA) controls a critical aspect of actuarial calculations when used to assess a loss of future earning capacity. Section 35A provides:
“(1) Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
...
(e) if-
(i)the injured person is to be compensated by way of a lump sum for loss of future earning capacity or other future losses; and
(ii)an actuarial multiplier is used for the purpose of calculating the present value of the future losses,
then in determining the actuarial multiplier a prescribed discount rate shall be applied; ...”
The Attorney General, in introducing s 35A as an amendment to the Wrongs Act said in the Second Reading Speech[11]:
“The new section 35a(1) (e) provides for the discount rate used by courts to be set by legislation. The discount rate is used by the courts in calculating the present value of future economic loss. Where moneys for pure economic loss would increase with inflation the appropriate rate to be used in such calculations is the anticipated difference between the rate of inflation and the nominal rate of interest that could be earned on investment. Several years ago the High Court effectively fixed this rate at 3 per cent and this is the rate used at present in common law settlements in South Australia.
However, interest rates are currently higher than has historically been the case and a real rate of 5 per cent or 6 per cent would be more appropriate at the present time since 3 per cent ignores the returns which can currently be achieved by prudent investment. Queensland and New South Wales have, already, legislated to set the discount rate at 5 per cent and other States are also moving to increase their discount rates. The effect of any increase in the discount rate is to reduce payouts.”
[11] Hansard, Legislative Council 27 November 1986

Section 35A has had the effect of fixing the “real rate” of interest that could be earned on investments to be used as the discount rate at a prescribed rate of 5%. In so doing no apparent regard has been had to the effects of taxation. Section 35A directs a judge, who uses an actuarial multiplier to calculate the present value of a future loss to determine that multiplier by applying the prescribed discount rate.
However the analysis contained in the Second Reading Speech portrays an apparent misunderstanding of the reasoning of the High Court in Todorovic. The High Court adopted a rate of interest which approximated the rate of interest applicable in times of stable currency value and which could therefore be supposed to exclude the influence of inflationary factors. However the High Court also made what was considered to be an appropriate adjustment to reduce that rate to allow for effects of taxation. This adjustment for taxation does not appear to have been addressed in the Second Reading Speech.
The requirement that actuarial calculations be based on a discount rate fixed by statute may negate the utility of the resulting actuarial multiplier in arriving at an appropriate assessment of future loss. Does there still remain a discretion in the trial judge to make necessary adjustment for taxation? The relevance, admissibility and utility of such calculations may be in question. The remarks of Gibbs J in Cullen referred to earlier are most apposite.
The trial judge, in making such use as he did of the actuarial multiplier, produced a calculation that was based on the prescribed discount rate. There was no apparent adjustment to allow for taxation. As this issue has not been the subject of submissions it is inappropriate to further discuss the implications of the above observations.
Conclusion
The trial judge found that the plaintiff was unfit for heavy work and that she would remain that way. She was unable to undertake work involving lifting, bending or standing for long periods. The plaintiff’s part time employment substantially accommodated her disability.
Calculations were placed before the trial judge based on evidence of the plaintiff’s earnings and that of a comparable employee. For the three years prior to trial the plaintiff had suffered an average weekly loss of $107.00 net. A calculation of her wage and her current employment on a full time basis compared with a part time basis, indicated an after tax loss of $185.00 per week. In this regard the judge made an arithmetical error and assumed $240.00 per week. These calculations together with a multiplier calculated at the prescribed discount rate confirm that an award for future loss of earning capacity of $100,000.00 was not excessive.
The plaintiff has been left with ongoing disability which will restrict her earning capacity for the balance of her working life. An award of damages for her loss of earning capacity of $100,000.00 represents a reasonable assessment of loss. The total assessment is a fair and reasonable assessment.
This appeal must be dismissed.

1I refer to the parties as “plaintiff” and “defendant” throughout this judgment.
2March v E & M H Stramare Pty Limited (1990-91) 171 CLR 506 at 509, 524, 530; Bennett v Minister of Community Welfare (1992-1993) 176 CLR 408 at 429; Medlin v The State Government Insurance Commission (1994-95) 182 CLR 1 at 7; Chappel v Hart (1998-99) 195 CLR 232.
3(1992-1993) 177 CLR 472 - see also Rosenberg v Percival [2001] HCA 18 per Gleeson CJ at [37-39]
4 (1999) 73 ALJR 306
5 (1992-93) 176 CLR 256
6 (1994-95) 182 CLR 1
7 (1981-82) 146 CLR 1
8 [1981] 150 CLR 402
9 (1982) 31 SASR 1
10 (1990-91) 171 CLR 657
11 Hansard, Legislative Council 27 November 1986

[2001] SASC 225

18 July 2001