Howlett v Campion

[2000] NSWCA 22

Reported Decision: [2000] 30 MVR 393

New South Wales

Court of Appeal

CITATION:	Howlett v Campion & Anor. [2000] NSWCA 22
FILE NUMBER(S):	CA 40468/98
HEARING DATE(S):	23 February 2000
JUDGMENT DATE:	29 February 2000
PARTIES :	Daniel Oliver Howlett (Appellant) Phillip Matthew Campion (First Respondent) Albury City Council (Second Respondent)
JUDGMENT OF:	Sheller JA at 1; Stein JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	CLR 400100/96
LOWER COURT JUDICIAL OFFICER :	Newman J

COUNSEL:	Appellant - C Branson QC/D Conti First Respondent - J Poulos QC/R Seton Second Respondent - D Nock SC
SOLICITORS:	Appellant - Robb & Associates First Respondent - Abbott Tout Second Respondent - Phillips Fox
CATCHWORDS:	APPEAL - road accident - damages - contributory negligence of plaintiff - apportionment of fault - no causative link between road design and accident - assessment of damages - proportion of most extreme case - past and future economic loss - difference in value between unimpaired capacity and impaired capacity - D
LEGISLATION CITED:	General Traffic Act 1909 Motor Accidents Act 1988
CASES CITED:	Government Insurance Office of New South Wales v Jackson (unreported, 13 April 1994) Graham v Baker (1961) 106 CLR 340 Matijevic v Khoury (NSWCA, unreported, 26 April 1978) Medlin v State Government Insurance Commission (1995) 182 CLR 1 Phillips v London and South Western Railway Co (1879) 5 CPD 280 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Schieb v Abbott (1998) 27 MVR 285
DECISION:	See paragraph 35

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40468/98
CLR 400100/96

SHELLER JA
STEIN JA
HEYDON JA

29 February 2000

Daniel Oliver HOWLETT v Phillip Matthew CAMPION
and ALBURY CITY COUNCIL


JUDGMENT

1    SHELLER JA: I have had the benefit of reading the judgment of Heydon JA in draft. I agree with what his Honour says and the orders he proposes. It is surprising that the plaintiff led no evidence at trial of financial loss between the time of his injury and the time of the hearing. Newman J was satisfied that the plaintiff’s earning capacity was diminished and awarded damages for future economic loss. For want of evidence the plaintiff’s appeal against the trial Judge’s making no allowance for past economic loss must fail for the reasons Heydon JA has given.

2    STEIN JA: I agree with Heydon JA.

3    HEYDON JA:

Background

4    This appeal and cross-appeal arise out of the following circumstances. At about 3.40pm on 19 July 1995 the plaintiff/appellant (“the plaintiff”), at the time a school boy aged 16, was riding his bicycle on the way home from school. He was involved in an accident with an eight tonne truck driven by the first defendant/first respondent (“the first defendant”). The second defendant/second respondent (“the second defendant”) was the local government authority allegedly responsible for the design of the roads in Albury where the accident occurred.

5    In order to understand the issues that arise it is necessary to grasp the geography of the accident scene. The accident occurred near the intersection of David Street and Buckingham Street, Albury. The trial judge said, in passages which were not challenged:

“The road pattern in the vicinity of the accident site is unusual. David Street is a busy road which connects Albury and North Albury. It consists of two traffic lanes, a cycle lane and a parking lane. The parking lane is 2.5 metres wide, the cycle lane 1 metre wide and the two traffic lanes have a total width of approximately 6.5 metres. The road is so marked that the cycle lane is delineated from the left traffic lane by an unbroken line.
Near to the point where the accident occurred the two traffic lanes curved first to the right and then to the left, ultimately merging David Street with its continuation which is known as Waugh Road. At about a point where the curve to the right commences the left traffic lane can divert into what was described by an expert witness, Mr Keirnan, as a slip lane. Traffic travelling in the left traffic lane can either go straight ahead along the slip lane or curve to the right as David Street continues. The so-called slip lane continues on to where it intersects with a street called Buckingham Street. At the point where David Street and the slip lane intersect stands a triangular park which also borders Buckingham Street.
A cyclist travelling north in David Street has a choice of taking one of two options should that cyclist wish to continue travelling north in David Street. First he may leave the cycle lane and travel on the outside of the left traffic lane following the right hand curve. Second, the cyclist may continue straight on in the cycle lane and cross the slip lane to the triangular park where the cycle lane continues in a northward direction. The cycle lane is clearly marked with an appropriate logo.
… On reaching the intersection of David Street and the slip lane [the plaintiff] elected to take the second of the options, that is to ride into the slip lane and then cross it on to the cycle path on the triangular park. He did so without stopping which meant that he was in the process of describing a sharp right hand turn. As he commenced his turn his cycle and the truck which was travelling in the left traffic lane in David Street but had entered the slip lane for the purpose of travelling to Buckingham Street and turn left, collided.”

The Trial Judge’s Findings in Outline

6    The first group of findings made by the trial judge related to the first defendant’s negligence in relation to the plaintiff. The trial judge found that the first defendant was not observing the plaintiff on his bicycle with the care he should have taken and that had the first defendant done so, the first defendant could have taken evasive action which may have avoided the accident. Accordingly, he found the first defendant to be in breach of duty and found him liable to the plaintiff. That conclusion was not challenged. However, the trial judge’s findings in relation to that conclusion have significance in relation to the challenges made by various of the parties to the second and third group of findings.

7    The second group of findings made by the trial judge related to the contributory negligence of the plaintiff. The trial judge found that the plaintiff was contributorily negligent. He apportioned the fault as to 80% to the first defendant and 20% to the plaintiff. The plaintiff appealed, contending that there was no contributory negligence; or, alternatively, that a figure of no more than 5 or 10% reflects the plaintiff’s fault. The first defendant cross-appealed, contending that the figure of 50% should be substituted for 20%.

8    The third group of findings made by the trial judge related to the plaintiff’s case against the second defendant, which rested on allegations that the road was badly designed. The trial judge rejected that case on the ground of causation. The trial judge also dismissed the first defendant’s claim against the second defendant for indemnity or contribution on the same ground. The plaintiff and the first defendant appealed against these conclusions.

9    The fourth group of findings made by the trial judge related to his assessment of damages for the plaintiff’s injuries. His assessment was attacked by the plaintiff as being in various respects too low.

Contributory Negligence

10    The reason why the trial judge found that the plaintiff was at fault to the extent of 20% was that the first defendant had his left hand indicator on before the accident, and had the plaintiff made a proper observation he would have seen the truck, which was bright yellow, behind him, indicating that it was going to continue up the slip lane.

11    The plaintiff’s submissions pointed to several matters evidencing the first defendant’s negligence, such as his opportunity to observe the plaintiff and his failure to do so with care, and his knowledge of the likely presence and actual presence of school children cyclists. More particularly, they noted that the cycle was travelling much more slowly than the truck, contended that the plaintiff would probably have been leaning forward and crouching, and argued that because the truck was in the plaintiff’s immediate right hand lane it would have been very difficult for the plaintiff, viewing the truck from an oblique angle, to have determined whether the left hand indicator was on. The plaintiff’s submissions noted the great disparity between the weight of the truck (8.5 tonnes laden) and the cycle. They centred on the first defendant’s admission that he had total control of the situation in the sense that he admitted that if (as the trial judge eventually implicitly found) the plaintiff had turned around to see what was coming behind him before making a right hand turn, the first defendant would have seen the plaintiff, would have inferred that the plaintiff was going to turn right, and would have been able to avoid the accident by stopping or turning to the right himself (pages 71-2, 81 and 86 of the transcript).

12    The conclusion of the trial judge does not appear open to any criticism that 20% was too high a figure. The plaintiff’s submissions do not effectively deal with the problem that error had to be demonstrated in the trial judge’s evaluation of the plaintiff’s conduct if the 20% figure were to be reduced. The failure of the plaintiff to notice the first defendant’s truck is only compatible with a failure to take care for his own safety. Further, the failure of the plaintiff to give a right hand signal before making the turn is supportive of the trial judge’s conclusion. Section 3(5A) of the General Traffic Regulations 1916 made under the General Traffic Act 1909 was in force at the material time. It imposed an obligation on cyclists to give a clear hand signal of their intention to make a right hand turn, and even if there were no such regulation, failure to give a hand signal in customary fashion revealed the plaintiff not to be taking care for his own safety.

13    The first defendant argued that the figure of 20% should be increased to 50% on the following grounds. The plaintiff had failed to keep a proper lookout and to notice the truck; had he done so he could have permitted the truck to pass; he “was the one with the last and best opportunity of avoiding the collision”. Complaint was also made of the brevity of the trial judge’s reasons for assessing only 20% contributory negligence. Reliance was placed on the evidence of Luke Stanley, who witnessed the accident from behind, in particular the following:

“Q. And from your observations of what happened in front of you, I suggest to you it appeared to you that there was nothing the truck driver could have done to have avoided the collision?
A. No.
Q. You are agreeing with me?
A. Yes.”

It was submitted that the trial judge erred in not relying on this evidence to the exclusion of the first defendant’s contrary admissions recorded at pages 71-2, 81 and 86 of the transcript and referred to above.

14    These submissions, too, are unsound. The first defendant was approaching, at a speed greater than the bicycle, a situation of danger as his truck headed towards the slip lane. His truck was enormous and heavy. The bicycle was small and its rider was capable of being seriously damaged. For all the first defendant knew, the bicyclist could have been a child much younger than 15 and much less knowledgeable about the area than the plaintiff in fact was. Like pedestrians, bicyclists (and in particular child bicyclists) are capable of unpredictable and careless conduct, and are extremely vulnerable to injury by larger vehicles: see generally Schieb v Abbott (1998) 27 MVR 285 at 286-7. The first defendant had a constant view of the bicycle; the bicyclist inevitably did not have a constant view of the truck. It was the first defendant who had the last and best opportunity of avoiding the collision, not the plaintiff, because while the plaintiff’s failure to observe the first defendant’s truck when he turned around for the first time was a missed opportunity, the first defendant’s failure to slow down sufficiently before the accident after he had failed to appreciate the plaintiff was likely to turn right by reason of his having turned around was later in time. As for Luke Stanley, the trial judge was entitled to reject his opinion in favour of the admissions of the first defendant: the former was 15 at the time and, not being licensed to drive, had probably never driven on public roads, while the latter was a middle aged experienced truck driver. While the trial judge’s reasons were brief, they were sufficient: they incorporated the totality of the trial judge’s findings on the first defendant’s negligence and on the plaintiff’s negligence and, by reference to the “many cases” discussing the matter, the general factors affecting the relationships between truck drivers and cyclists or pedestrians. The reasons for arrival at a conclusion about apportionment of fault for contributory negligence are often not susceptible of great elaboration. The making of such an apportionment involves a comparison not only of culpability but also of the relative importance of the acts of the parties in causing damage; depending as it does not on matters of principle or positive findings of fact or law but on proportion, balance, relative emphasis and a weighing of different considerations in relation to the whole conduct of each negligent person, it involves an individual judicial choice of a discretion, as to which different minds may reasonably differ, but which once exercised by a trial judge is not lightly to be reviewed on appeal: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 and 493-4. No grounds sufficient to justify a review of the present trial judge’s apportionment here have been established.

Case Against Second Defendant

15    The plaintiff argued on appeal, first, that because the trial judge had summarised the evidence of an expert civil engineer, Mr Keirnan, called by the plaintiff, which was critical of the location of the bicycle road crossing point and the lack of safety precautions, had pointed out that that evidence was uncontradicted, and said of it only that Mr Keirnan had been thoroughly and searchingly cross-examined, the trial judge had made an implicit finding that the second defendant owed a duty of care and had breached it. As a matter of construction of the trial judge’s reasons for judgment, that submission fails. The trial judge was summarising the evidence and the events of the trial; he was not accepting the evidence, let alone reaching conclusions about duty and breach of duty. Rather, the trial judge found it unnecessary to deal with those issues because he found that the plaintiff’s case failed in that the design of the road pattern was not the cause of the accident.

16    Secondly, the plaintiff submitted that if the trial judge had not made findings of duty and breach of duty, those findings were inevitable in view of Mr Keirnan’s evidence, to which it was said the trial judge had not referred. This does not follow. The questions of duty and breach of duty were incapable of being answered by Mr Keirnan alone. In any event, in key respects Mr Keirnan’s evidence was of marginal admissibility, and even if it was admissible, it was of questionable weight. Thus he offered conclusions as to the obviousness of the problem, as to whether it should have been considered by the second defendant in its design, and as to whether the lack of warning markings or signage was a factor contributing to the accident. Further, so far as Mr Keirnan could speak of the causes of the accident, his comments were weakened by the fact that in several respects the assumptions on which he was operating were self-contradictory, or did not accord with the facts as found by the trial judge, or did not accord with the evidence. For example, at one point he assumed the cycle was struck by the truck from behind; it was not. At one point he assumed that the truck was travelling at 50-60 kph, at another speeds between 40 and 50 kph. He said both the cyclist and the truck driver saw each other before the collision, when in fact the cyclist did not see the truck driver. In some respects his conclusions turned out to be not only erroneous, but confusing and speculative. An example is his conclusion that:

“The evidence indicates that the truck driver may not have been aware of the unmarked cycle route connection between the marked bicycle lane in David Street and the shared pathway to the east.”


Compare pages 62-63 of the transcript.

In truth he was “uncertain” about the circumstances of the collision, he “was not able to reconstruct the incident at all”, and he “did not have enough information to make that judgment”. Moreover, the utility of Mr Keirnan’s proposed improvements was controversial. For example, proposed improvement (a) was as follows:

“Continue the cycle lane around the right hand curve in David Street adjoining the two travelling lanes and link up with the concrete pathway section north of the right hand curve.”

This carried the risk of cyclists cutting across traffic continuing to go straight. Proposed improvement (b) was as follows:

“Relocate the on-road cycle lane in this section of David Street on to a shared pathway on the western footpath and provide a right angled bicycle crossing location of the slip lane section of David Street.”

This involved the risk of collisions between bicycles and pedestrians. In short, whatever the merits of Mr Keirnan’s evidence, there was nothing inevitable about any findings that might be based on it. The failure to refer in detail to Mr Keirnan’s evidence is not open to criticism in view of the fact that the issues to which much of it went were ones which it was not necessary for the trial judge to decide and the fact that so far as it went to causation it lacked any weight.

17    Thirdly, the plaintiff attacked the trial judge’s conclusion that there was no causal link between any deficiencies in the location and the accident, and criticised the brevity of the reasoning. The core of that reasoning was expressed thus:

“whatever the design of the slip lane bicycle crossing might be and whatever improvements might be made to the location there is no causal connection between the design of the road pattern and the accident. The cause of the accident was the failure of both the first defendant and the plaintiff to keep a proper lookout whatever the design of the road might be. If road users do not keep a proper lookout an accident will occur. This was the case here.”


These observations were terse, but clear. They were amply supported by the evidence. So far as concerns the plaintiff’s failure to keep a proper lookout and the impact that more signs or markings might have had, the plaintiff admitted having repeatedly travelled the route used, admitted knowing that he had to cross the road at right angles, admitted knowing that vehicles might be travelling straight, admitted failing to observe the truck, and admitted not taking “the slightest bit of notice at all of any traffic coming into the David Street extension”. In short, the plaintiff was aware of all of the problems of the intersection, and paid no attention to his surroundings. Similarly, the first defendant knew all the features of the site and knew of all possible forms of behaviour on the part of cyclists. Hence additional markings or notices would have made no difference to the behaviour of either of them. If the plaintiff did not notice the first defendant and if the first defendant did not draw correct inferences from the presence of the plaintiff, signs or markings warning each about the other would be unlikely to have altered the outcome.

Quantum of Damages
Non-Economic Loss/Medical Costs

18 The plaintiff submitted that the trial judge’s award of $75,000 pursuant to s 79 of the Motor Accidents Act 1988, representing 30% of the sum awardable for a most extreme case, should have been $150,000 i.e. 60%.

19    The plaintiff’s complaints about the detailed analysis of the trial judge are as follows.

20    First, it was submitted that he failed to find that a risk of impotence remained. The plaintiff’s submissions urged reliance on Dr Russell, the plaintiff’s treating urologist. His first report, dated 19 April 1996, spoke of a “high chance” of impotence, said “time will tell”, and said that there was erectile dysfunction. By the time of the second report on 12 March 1997, matters had improved but Dr Russell said the chance of dysfunction was at least 50%. The position improved further by the third report (16 December 1997), and no prediction of impotence there appeared. The substance of the opinions of four other doctors was that there was no residual sexual dysfunction or impotence. It was open to the trial judge to conclude, and to indicate that conclusion by omission, that the chance of impotence was so slight as not to be worth taking into account.

21    It follows that the plaintiff’s second complaint, namely that no allowance had been made for the cost of a penile prosthesis, is without force.

22    Thirdly, the plaintiff complained that no specific allowance was made for the possible need for surgical intervention to correct a deformed prostatic urethra. The costs of this, if incurred, appear relatively small, according to Dr Russell’s third report. The bulk of the medical evidence indicated that the chance of the need for the surgical intervention arising was very low.

23    However, the basic submission of the plaintiff was that the award was manifestly inadequate by reason of the severity of the initial trauma, the serious urological disabilities, the serious orthopaedic disabilities, and the considerable impact which those injuries and disabilities have had and will have upon the plaintiff’s ability to lead a normal life. The trial judge appears not to have omitted any relevant consideration, not to have erred in either fact or law. Indeed his reasoning echoes many of the plaintiff’s submissions. The immediate consequences of the accident were very unpleasant, but the plaintiff has experienced significant, though not complete, recovery. While other minds might have arrived at a different result, the trial judge’s conclusion does not appear wholly erroneous and is invulnerable to the plaintiff’s attack.

Past Economic Loss

24    The trial judge made no allowance for past economic loss, i.e. between the date of the accident and the date of the trial. On the other hand, he allowed $75,000 for future economic loss. The damages recoverable are for lost earning capacity, not lost earnings: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3, 16 and 18. If the plaintiff’s earning capacity was affected from the date of the trial, it must have been affected before the trial. The trial judge’s reason for a nil award was that “since leaving school the plaintiff’s periods of unemployment have arisen not because of his injuries but because of the scarcity of employment in the area.” The plaintiff put the following submissions:

“5.21 His Honour fell into error in reaching this conclusion. The relevant authorities indicate that there is but one claim for loss of earning capacity although it is convenient to measure as at the date of trial the loss of earnings from the date of the accident to that time.
5.22 The task which the Court has to undertake when evaluating such a claim is to measure the extent to which the injuries and disabilities have impacted upon the capacity of the victim to earn his livelihood; see generally Medlin v State Government Insurance Commission (1995) 182 CLR 1.
5.23 The Trial Judge failed to undertake any analysis as to whether and if so to what extent the plaintiff’s injuries and disabilities affected his capacity to earn between 19 July 1995 and the date of trial.
5.24 The plaintiff submits that based upon the average weekly earnings of adult male persons his Honour ought to have concluded that the plaintiff’s loss of earnings to date of trial were the sum of $27,446.00.”

25    The trial judge’s reasoning is directed to the wrong question. What matters is not that the plaintiff with reduced capacity cannot work by reason of general economic conditions. What the plaintiff is entitled to is a sum of money reflecting the difference in value between the plaintiff’s unimpaired capacity and his impaired capacity. If a plaintiff alleges that his unimpaired capacity had value, that contention is capable of rebuttal by proof that it would never have led to remunerated work. In Graham v Baker (1961) 106 CLR 340 at 347, the High Court said:

“an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution in his earning capacity is or may be productive of financial loss.”

This suggests that if the causal link between financial loss and reduced earning capacity is broken by reason of the fact that there was never any opportunity to exploit the unimpaired earning capacity, there can be no recovery. That passage was cited with approval by all members of the court in Medlin v The State Government Insurance Commission (1995) 182 CLR 1 at 3 and 16. Authorities specifically approving the reduction of pre-trial economic loss awards by reason of the actuality or chance of unemployment even if the tort had never been committed include Phillips v London and South Western Railway Co (1879) 5 CPD 280 at 291 per Brett LJ; and Matijevic v Khoury (NSWCA, unreported, 26 April 1978, page 3).

26    The fact that scarcity of employment in the area prevented the plaintiff with impaired capacity from getting a job does not negate the existence of the impairment. If an unimpaired plaintiff could get employment, but an impaired plaintiff could not by reason of unemployment levels in the area, the tort has worsened the plaintiff’s position by reason of his reduction in capacity. The consequence of the trial judge’s reasoning having been directed to the wrong question is that no finding was made that the plaintiff would have been unemployed even if the accident had not happened. A finding to that effect could have debarred the plaintiff from recovery for past economic loss, or led to reduced recovery. The first defendant, in its written submissions, put a contention that the facts justified such a finding in the following words:

“Any earning capacity which the Plaintiff might have had, but for his injuries, would not have been exercised by the Plaintiff in any event.”

But there is no evidence to support that contention.

27    There was evidence that employment conditions were tight, and that the plaintiff, after he had been injured, accepted every job he was offered. But there was no evidence that, had the plaintiff not been injured, he would have been as unsuccessful in gaining employment as he was. The following evidence was given by the plaintiff:

“Q. And you’ve never been knocked back for a job because of your injuries, is that right?
A. No.”

That evidence establishes only that the plaintiff had never been told that he had been knocked back for a job because of his injuries. The plaintiff was obviously not privy to the actual reasoning processes of potential employers, and the answer does not prove what those processes were. Nor does that evidence establish that the plaintiff would not have got the job even if he had not been injured.

28    The difficulty with the past economic loss claim, as with the plaintiff’s arguments in favour of a larger award for future economic loss, rests in a want of proof of the earnings he would have been likely to have obtained with unimpaired capacity. On the case he was putting forward, the plaintiff had to demonstrate to an appropriate level of probability that he would have become a motor mechanic; that he was no longer fit to pursue that occupation; and that earning levels in that occupation were greater, to a measurable extent, than in the occupations his reduced earning capacity fitted him for. There was sufficient evidence that the plaintiff wanted to become a motor mechanic, and that, though he still had that desire and thought he could carry out the work, the medical evidence, and some of the plaintiff’s own evidence, was that he could not. The gap in the plaintiff’s case was that there was no evidence of likely earnings for a motor mechanic, nor of likely earnings in occupations which his injuries would permit him to pursue. At the trial a figure of $27,446, net of actual earnings, was claimed, based on a loss of $250 net per week for 1996, $300 net per week for the first eleven months of 1997, and $100 net per week from 1 December 1997 on. The basis for these figures was largely unclear, and, more importantly, they lacked any evidentiary foundation. The appeal papers contained a table of average weekly earnings for “Total Employees New South Wales” for the period 1988-1996, which the first defendant accepted as an accurate record of average weekly earnings. But it is impossible to draw any conclusion from those figures as to what the relevant difference between the plaintiff might have been able to earn before trial if not injured and what the plaintiff might have been able to earn before trial after being injured was. The case is made more difficult by the fact that, since the injuries were suffered while the plaintiff was still at school, no aid can be obtained from comparing higher pre-accident earnings with lower post-accident earnings.

29    By the time of the trial about three earning years had passed, out of a total of approximately fifty until the plaintiff attained the age of 65. That is less than 10% of the whole. If the figure for lost earning capacity for the years after the trial should not be interfered with, and below it is concluded that it should not be, given the want of evidence for the years before the trial, any award for pre-trial earning capacity must be small. In these circumstances it is not proposed to interfere with the trial judge’s nil award. In view of the imprecision necessarily attending the calculation of the award for future economic loss, it cannot be said that the plaintiff has suffered injustice in relation to the trial judge’s assessments for economic loss as a whole.

Future Economic Loss

30    Similar evidentiary difficulties arise here.

31    The trial judge said:

“I do not believe this is a case where it is possible to calculate future economic loss on the basis of a present loss which can be utilised to make an assessment with the assistance of actuarial tables. I believe it is a case where it is appropriate to award damages for future economic loss on the basis of an appropriate lump sum to take into account the possibility that his injuries will inhibit his opportunities to earn in the future. On this basis I would assess his future economic loss as $75,000.”

32    The plaintiff’s argument was that in lieu of the trial judge’s figure of $75,000 there should be an award of $267,697. That was based on an average loss of $200 net per week for 20 years and thereafter $300 net until the plaintiff attained the age of 65.

33    The plaintiff submitted that the implication of the trial judge’s selection of the figure of $75,000 was that “by applying the 5% actuarial tables he allowed for an ongoing net weekly loss of approximately $90.00 per week until the plaintiff attained 65 years of age.” The plaintiff has not demonstrated why $200 or $300 are correct figures and why $90 is wrong, because he has not tendered evidence of what a motor mechanic could earn and what the plaintiff would in fact be likely to earn.

34    The trial judge’s approach has been employed where the unpredictability of the future for a particular plaintiff calls for “some form of cushion against future bouts of unemployment and employment at lesser rates of pay”, as the trial judge held, without criticism by this Court, in Government Insurance Office of New South Wales v Jackson (unreported, 13 April 1994, pages 6-9).

35    While the trial judge’s method of proceeding may not be ideal for normal cases, it appears to be the only one open to him given the condition of the evidence before him. The figure selected does not appear to rest on any error of fact or law or to be manifestly erroneous.

Orders

1. Appeal dismissed.

2. Cross-appeal dismissed.

3. The appellant is to pay the first respondent’s and the second respondent’s costs of the appeal.

4. The cross-appellant is to pay the first cross-respondent’s costs and the second cross-respondent’s costs of the cross-appeal.
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