Mitchell v Williams

[1991] HCATrans 328

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M -~·~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S68 of 1991

B e t w e e n -

JEFFREY WILLIAM LEONARD

MITCHELL by his next friend

JUNE MITCHELL

Applicant

and

LEONARD WILLIAMS

Respondent

Application for special

leave to appeal

DEANE J
TOOHEY J

GAUDRON J

Mitchell 1 15/11/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1991, AT 12.07 PM

Copyright in the High Court of Australia

MR D.J. COCHRANE:  May it please Your Honours, I appear for

the applicant. (instructed by David Nagle)

MR J.L. GLISSAN, QC: If Your Honours please, I appear with

my learned friend, MR K.J. MANION, for the

respondent. (instructed by Abbott Tout Russell

Kennedy)

DEANE J:	Mr Cochrane.
MR COCHRANE:	Your Honours, the amount of folders and the

paper that I have before you, I do not wish to

daunt you with it. Indeed, if I may, I hand to you

written submissions.

DEANE J: Yes, Mr Cochrane.

MR COCHRANE:  May it please Your Honours. Fundamentally it

appears that Their Honours sitting as the Court of

Appeal erroneously arrived at a particular

calculation which was fraught with a substantial

inaccuracy. I have sought to draw to Your Honour's

attention, in these submissions, the calculations

that Your Honours no doubt have now averred to.

You may see that it is clearly obvious that the

basis of the calculation initially - the exercise

of judicial discretion in relation to assessment of

future economic loss, with respect, Your Honours,

is one that ought, in these circumstances, not be

interfered with.

Mr Justice Samuels sought to embark on that

course and fell into error in a particular way that

reflects a total inaccuracy and misconception of

the deferment calculations. He has, in effect,

applied two deferments as well as applying an
inaccuracy as to the age that the plaintiff was at

the time of trial and the age when there was

sought, or thought to be, a degenerative problem

arising, and that age seems to be across their

minds of 36. Your Honours, I do not wish to put

anything more - - -

GAUDRON J: That is really a matter of fact, though, is it

not? Is there legal error to be discerned in what

you are saying, Mr Cochrane?

MR COCHRANE:  The inaccuracy is one of application of

principle in taking the discretionary aspect that

the trial judge had considered and then developing

the factual aspect erroneously.

GAUDRON J:	To make good that proposition you have to establish that the trial judge made no error such
as to entitle the Court of Appeal to reconsider the matter.

Mitchell 2 15/11/91

MR COCHRANE:  With respect, Your Honours, it is my

respectful submission that there was no error in

relation to the amount that the trial judge

determined as being a proper and reasonable sum, in

his judicial discretion, to allow for future loss

of earning capacity. That figure, of course, is

referred to in a far greater way than what has been
substituted. I do not wish to add anything more in
respect of that matter.

I assume that you have considered those

matters that are proposed in the application book
in respect of the grounds of appeal and it seems

that this is one of those cases where Miller v

Jennings would properly apply, as would the

application of Davies v Powell Duffryn Associated

Collieries - - -

DEANE J: But have you not got to address what

Justice Gaudron put to you in a little more detail?

The problems facing you are, first, the issues

involved at this stage are all essentially

questions of fact; and second, if the Court of

Appeal made a mechanical error, the procedure for

correcting that is to go back to the Court of

Appeal before the judgment is perfected and the

Court of Appeal could, of course, correct that sort of error.

What we are concerned with is: is this case an

appropriate one to be given leave to appeal, because it involves some question of general
principle and general public importance. That is

what I would be assisted if you could make

submissions on.

MR COCHRANE: Justice Deane, what Their Honours sought to do

in the Court of Appeal appears to have been

interfering with a discretionary judgment of the

court below, reflecting no real inaccuracy by the

trial judge in the way in which he formulated his

proceed on - - - approach, but the trial judge necessarily did not

DEANE J: But Mr Cochrane, if the trial judge in fact failed

to discount the damages by reason of the fact that

the economic loss for which he was awarding damage would not be sustained until the plaintiff reached

36, that was an error which obviously required

interference with the decision of the trial judge.

MR COCHRANE: With respect, Justice Deane, perhaps when one

considers the guidelines upon which trial judges

might exercise their discretion in relation to

future loss of earning capacity the application of

deferment periods is perhaps one method, but in

this instance, there has not been sufficient

Mitchell 3 15/11/91

guidance in authority that sets out a proper

fundamental basis for developing the questions of

deferring future economic loss for infants.

In this case, those factual material aspects

certainly do enter into part of that argument but,

notwithstanding that, it may well be that it is

reasonable at this point in time, if Your Honours

were to grant special leave, to consider the

reasonable and proper approach of trial judges in assessing future economic loss claims for infants.

The suggestion that perhaps trial judges might

approach a global figure is in itself one that may

be taken to be erroneous because it contravenes the

later decisions that tend to the requirement of

formulating a specific way in which the calculation

is made. If there is not a sufficient guidance so

that trial judges discretions will stand, then the

courts nisi prius in dealing with infant cases are

going to be somewhat handicapped in the development

of the approach. This case is an example of such

development. Here we have a trial judge - - -

TOOHEY J: But is it any more than the example of the

application of ordinary principle to the facts of

the case? You ask us to take this case on board as

affording some opportunity to lay down general

principle in regard to the assessment of damages,

and in particular to the discretion of trial

judges, but we are not really in the area of

discretion, are we? The Court of Appeal took the

view that the trial judge had made an error in

failing to recognize that the onset of arthritis

that might affect the economic capacity of the

plaintiff would not take place until some time in

the future and the Court of Appeal made what it

regarded as the appropriate adjustment to allow for

that error. Now, once that is said, what is left?

MR COCHRANE: In answering your question, Justice Toohey, if

one looks at the way in which the deferment period

was applied by Their Honours, it would seem that

there are two deferments, erroneous in an extreme

and singularly reflecting an amount which is far

too low so as to cause an injustice to a degree

that there has been a significant miscarriage.	To
use two deferments and discount in the way that
Justice Samuels has proceeded is not only a
mathematical inaccuracy but is a fundamental
inaccuracy in principle and ought not to be permitted to continue, with profound respect.

DEANE J:  Can you take us to Justice Samuels' judgment and,

on the basis that it was appropriate for the Court

of Appeal to assess damages for economic loss,

identify precisely where you say he went wrong.

Mitchell	15/11/91
MR COCHRANE:	Certainly, Your Honour. The suggestion at

page 18 of the application book, which is in effect
page 8 of Justice Samuels' judgment, being the

judgment of the Court of Appeal, initially refers

to symptomatic arthritis as commencing at a period

ending twenty years from the trial, at about

line 6/7. If Your Honours go a little further down

but applying the wrong tables, that is

that page, line 17, Your Honours will see that calculation,

a calculation on that figure of $66,000 and a

second figure of $33,000, and leaving those matters

that are reflected as to a calculation on

5 per cent tables, and then giving an allowance for

vicissitudes of 20 per cent.	On the next page at
line 2 Justice Samuels says:

In my view there is a greater than even chance

that the plaintiff will develop symptomatic
arthritic changes after twenty five years from

trial i.e. at age thirty six or thereabouts.

And Justice Deane has said that particular matter

could be corrected by showing the error and going

back to the Court of Appeal. Of course, if one

does the calculation as in my written submissions,

Your Honours will observe that indeed it goes to a

period when the then infant would be 42 years of

age and not 36. His Honour then sought to apply

the 25 year period and if Your Honours look to

line 15 on that particular page:

I think, however, that one can say that

the problem is to compensate a plaintiff who

in twenty five years' time at age thirty six -

and of course that would mean 42, not 36, or if one

were to apply the correct period would mean some

18 years 7 months from the date of trial -

will probably suffer pain and stiffness in an

ankle -

and then further down, as Your Honours will see, he

goes on to refer to retirement age, 65, and a

little further towards the bottom of the page, at

line 23:

Arriving at the solution obviously involves a

wide range of options which looks very like

the exercise of a judicial discretion. But

whatever the solution it must, in my opinion,

pay heed (as Shadbolt DCJ's did not) to the

deferment of whatever compensation is thought

to be required.

Mitchell 5 15/11/91

Then His Honour, at page 20 - or 10 of the judgment:

I would therefore award the plaintiff

under this head -

and refers to the particular amount which was

effectively taking the deferment of the initial

deferment.	What the trial judge looked at was
$66,000.	What Justice Samuels initially looked at

was $66,000 and then $33,000, and then quite

independently came to that figure of $25,000;

Applying then 5 per cent tables, which in

themselves were erroneous - there should have been

the application of 3 per cent tables - and arriving

at a particular figure. In our respectful

submission, that figure is erroneously, manifestly

and significantly too low.

I have applied in a particular way, at page 5

of my written submissions, what one might submit is

a reasonable and proper approach to the

calculations that Justice Samuels commenced to

make. if I might take you to about point 2 of

those submissions: if one were to apply the

3 per cent tables as provided authoritatively by

this honourable Court in Todorovic v Waller, then

Justice Samuels' calculations would reveal that to

provide $66,000 in 20 years' time would require

$36,564. To provide $33,000 - and I then refer to

an amount being required of $18,282. Those figures

initially are quite different to what His Honour

came up with at page 18 of the application book.

Then at page 18 I refer Your Honours to line 16 et seq, and those figures that I have

already referred you to and viva voce comment. At

page 19 the Court of Appeal altered the deferment

period from 20 years to 25 years, rather than

taking the 18 years 7 months or rounding it off at

20 years.

It follows that an error was then made by

applying to a deferment period of 25 years an

amount necessary to produce $25,000, assuming

interest at 5 per cent, leading to a result of

$7375, which Justice Samuels rounded off at $7500.

What effectively Their Honours have done is to

apply that double deferment to the then infant

plaintiff, hence penalizing him unjustly.

TOOHEY J:  Can I just interrupt you, Mr Cochrane. I am

still not clear where you say this double deferment

took place. I appreciate that Justice Samuels

looked at the figure of $66,000, or as an

alternative $33,000, saying that in each case the

Mitchell 6 15/11/91

plaintiff would be over compensated by that figure
but, as it were, having put that to one side, did

he not then proceed to look at the economic loss to

which the plaintiff might be subject in 25 years'

time and with reference to that loss, arrive at a

figure of $7500, that is an amount which would

compensate for that loss in 25 years' time.

MR COCHRANE:  At age 42, when he had in mind 36.

TOOHEY J: Well, leave aside the mechanics of it, the

particular ages and period, but I cannot see where

this double deferment took place.

MR COCHRANE: 

If Your Honours go to the judgment of the

learned trial judge, Judge Shadbolt, at page 6 of
the application book, His Honour the learned trial

judge having said that it was difficult to assess,

page 5, at the top of page 6 goes on to say:

However, were he in that position now, $100

per week would not be an inappropriate sum by way of loss of capacity to earn income. If I allowed $100 per week for 20 years being the

period when the degenerative changes become

symptomatic to retirement which also is

towards the extreme end of the range of

prognostications by Dr Davidson, it would
amount to $66,000 but such a sum would have to

be reduced by at least 50 per cent in order to

accommodate the very real vicissitudes of

life -

and then he goes on to say a little further down,

at line 10:

I consider therefore the sum of $30,000 appropriate to embrace all future economic

loss.

Now, there has been initially a deferment,

perhaps, in a discretionary way by the trial judge,

by - - -

TOOHEY J: Well, you use the term "deferment", but could I

question that? In what way is the trial judge

there dealing with the question of deferment, as

opposed to vicissitudes which might accompany the

plaintiff for the whole of his life?

ME COCHRANE:	He did so, perhaps, in a way that was not the usual way in the application of vicissitudes.
Justice Samuels looked at what amount should be
applied and it was suggested that a 20 per cent deduction for vicissitudes should be made, not 50.
What this particular trial judge has taken on board has been a deduction of 50 per cent which, in

Mitchell 7 15/11/91

effect, would, it is my respectful submission,

allow for some basis of a suggestion that he is
allowing for the deferment, because in his argument

he takes $100 as being the loss, if the loss were

to be taken at the present day, and then he

necessarily in his mind projects it through to age

approximately 20 years from when the trial was heard, and he comes to a figure that he thinks

ought to be, namely $30,000.

TOOHEY J:	I am sorry, I do not follow this.
MR COCHRANE:	He did the calculation initially and said that

it would come out at $66,000. He then takes into

account some allowance and he does so by using

certainly the word "vicissitudes" - - -

DEANE J:  What calculation comes out at $66,000?

MR COCHRANE: There are two. There is the one that is

carried out by His Honour Justice Samuels and of

course there is the other in relation to what the

trial judge has proceeded to achieve.

DEANE J:	No, what we were looking at.
MR COCHRANE:	He takes $100 per week for 20 years and

applies the 5 per cent tables.

DEANE J:	And that gives you $66,000, does it?
MR COCHRANE:	Yes, Your Honour.

TOOHEY J: But why would you do that?

MR COCHRANE: Well, Justice Samuels says, as I understand

his reasoning - - -

TOOHEY J: Could I just explain my difficulty. Let me put

my difficulty to you, Mr Cochrane. It is one thing

for a trial judge to say, "As a result of his

injuries, the plaintiff has suffered a present

economic loss which will continue to a greater or

lesser degree for a period of time; make a

calculation and discount that for vicissitudes, if

that is appropriate." But what the Court of

Appeal, as I read Justice Samuels' judgment, is

saying is that that was the wrong approach because

the economic loss was not going to arise until some

time in the future and therefore, what the

plaintiff was to be compensated for was an economic

loss which might begin in about 25 years' time.

MR COCHRANE: Quite, Your Honour.

TOOHEY J:  It was not that the Court of Appeal took the

trial judge's figure and further discounted it; the

Mitchell 15/11/91

Court of Appeal put the trial judge's assessment to

one side as being founded on a wrong approach and

made its own assessment, which may or may not have

adequately compensated the plaintiff but which, on

its face, does not seem to me to disclose any

error.

MR COCHRANE: Justice Toohey, if I may, the Court of Appeal

does use the figure $66,000 initially and it then

carries out a calculation on a deferment basis and

arrives at a figure of $24,882, very close to the

$25,000 figure that Mr Justice Samuels later uses.

I suggest that in that calculation there is

initially a deferment.

DEANE J: But is not the error of the learned trial judge

this: he said $100 per week for 20 years, and has

discounted it on the basis that the first $100 per

week is being lost now. But the Court of Appeal

has pointed out that that is quite wrong because

the first $100 per week, on the evidence, is not

going to be lost until some 20 years down the

track. That being so, the Court of Appeal had to

intervene to correct the trial judge.

MR COCHRANE:  The application of the deferment period

initially by Justice Samuels was that he took the

figure of the $66,000 and he then brought it to

$25,000. He then does a calculation that he

substitutes for what the trial judge did,

commencing at $25,000, having initially effectively

taken what the trial judge had decided would be the

proper figure before a discounting.

TOOHEY J:  I am sorry, Mr Cochrane, I think that is the very

thing he did not do. I think what Justice Samuels

did was simply to refer to the $66,000 or $33,000

with a view to identifying what His Honour thought
was an error; put that figure to one side and

embarked on his own assessment.

MR COCHRANE:  Justice Toohey, that may well be but for the

use of the $25,000 figure which Justice Samuels

takes up as a cudgel and then uses for a further

deferment, applying the tables over 25 years, not

20 years. So having taken the $25,000, he then

ends up rounding it off with $7500 whereas, if you

approach it the other way, as I was putting to

Your Honours in my written submissions at page 5,

if I might, just at the bottom of that page at

point 9: the learned trial judge in his reasoning

made a calculation commencing at $66,000. At

page 18, the Court of Appeal also commenced with a
figure of $66,000 but qualifying it with the

statement: "He would be substantially over

compensated."

Mitchell 9 15/11/91

At page 6, Your Honours: If the 20 per cent

deduction for vicissitudes of life were to be made

to that figure, then $13,200 ought to be deducted -
that 20 per cent, I might interpolate, is the

figure that the Court of Appeal thought would be the appropriate one for vicissitudes - then that

would leave a figure of $52,800. To achieve that

figure, after a deferment of 20 years would, on the

tables, Your Honours, give $29,251.20. This amount

falls into line with what the trial judge had

anticipated of $30,000 as being appropriate to

embrace all economic loss.

What I am submitting to Your Honours is the

trial judge certainly did have difficulty arriving

at the way in which he wanted to achieve the

result, namely to give the infant plaintiff $30,000

for future loss of earning capacity.

GAUDRON J: But you see you have made an assumption about

what Judge Shadbolt would allow for vicissitudes in

that calculation and His Honour Judge Shadbolt

clearly said that it had to be reduced by at least

50, that is to say something in excess of

50 per cent in order to accommodate the

vicissitudes.

MR COCHRANE:  What His Honour, I believe, was endeavouring

to do, Justice Gaudron, was to consider in the

20 year period into the future what would be an

appropriate amount and therefore allowed such an

enormous deduction for vicissitudes. He was

clearly stumbling as to how he might arrive at a

proper mathematical base to achieve the global sum.

GAUDRON J:  I see no reason to give his words a different

meaning. He said something in excess of

50 per cent had to be allowed for vicissitudes.

Your calculation does nothing like that.

MR COCHRANE: With respect, the calculation, taking	Justice Samuels' calculations, comes to the figure	that is almost the same of $29,251.20, in applying
the tables and deferring it over 20 years, and in
doing that really does reflect the proper base for
suggesting that the trial judge was not erroneous in arriving at what he assessed as the future loss of earning capacity but gave substance to the initial calculation but then showed the proper
method upon which it might be made, so as to end up
with the figure very close to what the trial judge
actually awarded.

But then Justice Samuels takes a figure below

that, there having already in those calculations

being a deferment, he then takes a figure below

Mitchell 10 15/11/91

that, namely $25,000, and does another deferment on

it.

GAUDRON J:  He has taken $25,000 on the basis of an entirely

different approach. The first one is, as you point

out, 20 per cent vicissitudes, but the major

approach is improbable that his earning capacity

will be affected for some time, if indeed at all,

but there is a chance that it might be. How

His Honour reached $25,000 is on the basis that

there was only a chance of the earning capacity

being reduced, and compensating for that chance -

just a chance, not a probability, a chance - and

even in allowing for that chance there had to be a

reduction of 20 per cent for vicissitudes.	So that
brought the figure to $25,000.

The next step was to say - and in this there

may be some mechanical difficulty, I do not know -

to say, what figure will produce $25,000 at the
time at which the plaintiff will start to suffer

economic loss? The figure His Honour came up with

was $7500. As I said, there may be something wrong

in the precise figures he fed into the

formula -

MR COCHRANE: With respect, Your Honour knows there is.

GAUDRON J: Well yes, but that is a different question. It

is not a question of any principle.

MR COCHRANE:  No, I appreciate Justice Deane's comment in

relation to that. It is my respectful submission that considering Justice Gaudron's comment to me, that when one reads what Justice Samuels said at

page 8 of the judgment, that one cannot but help to

take into consideration an initial calculation on

$66,000 which leaves $24,882, and he does that by

applying a deferment on a 5 per cent table base,

not a 3 per cent table base. He then goes on, at a

later point in time, to take $25,000 and he does

the same thing once more, he applies 5 per cent

tables, defers it over 25 years, not 20 years, and

comes up with $7500.

GAUDRON J: But no, he does not do that, Mr Cochrane, at

all. He is explaining what Judge Shadbolt did and he comes to the conclusion that there is an error

in what Judge Shadbolt did. Then he proceeds, at

page 19, to reassess damages on a different basis.

Once he had decided that there was an error, it

then became the task of the Court of Appeal to

assess the damages for this head of damage. That

is what was undertaken.

MR COCHRANE: Forgive me, but one's reading of page 18 - - -

Mitchell 11 15/11/91

GAUDRON J:  Your reading is quite different from mine.

MR COCHRANE: If I may, with great respect, Justice Samuels

says:

If the plaintiff received, now,

$66,000 ..... To provide $66,000 in twenty

years' time assuming interest at five per cent

would require $24,882.

TOOHEY J:  Mr Cochrane, can you not see what His Honour is

doing there is setting up a proposition with a view

to saying that is the wrong approach. He is not

endorsing that proposition. It does not form part

of a step in His Honour's own assessment. It is

the recognition of, as His Honour saw it, an

approach taken by the trial judge which he thought

was in error and therefore should be put to one

side.

MR COCHRANE: Well it is curious, with respect,

Justice Toohey, that he, at page 20, uses that very figure, more or less, rounded off of $25,000,

having initially used the other figure. With great

respect, I appreciate that it may have been a

method upon which the trial judge erroneously

pursued a particular calculation, but with great

respect, one would have thought that the figure

does amount to a calculation on $25,000 is

erroneous, because it is manifestly too low.

DEANE J:  What we are concerned with here is whether leave

to appeal should be granted, not with arguing the

appeal, which means I think you have identified

what the issues are.

MR COCHRANE:	May it please Your Honours.
DEANE J:	Mr Glissan, the Court would only want to hear from

you on the question of the 25 years and the

5 per cent instead of 3 per cent.	What do you say
about those matters?

MR GLISSAN:  The primary submission that I would make in

relation to that, Your Honours, is this that the

Court of Appeal identified error in the

calculations of the trial judge. It then proceeded

to exercise its own discretion on the evidence

which was before it. Now, Your Honours do not

have, in the application book, the whole of the

evidence that was in the Court of Appeal but there

was a wide range of medical evidence - - -

DEANE J:  I follow all that. But Justice Samuels seems to

have said 25 years from trial when the plaintiff

will be 36 - - -

Mitchell 12 15/11/91

MR GLISSAN:  Yes, that is clearly a mechanical error.

DEANE J: And one gets the impression that the operative

reference point was 36 and not 25 years.

MR GLISSAN:  Not entirely, Your Honour. If I may simply

take Your Honours - and I do not really want to

read to Your Honours at all in relation to this

appeal - but if I may take Your Honours again to

page 19 of the application book and to a passage

that Your Honour Justice Gaudron has already read:

there is a greater than even chance that the

plaintiff will develop symptomatic arthritic

changes after twenty five years from trial

i.e. at age thirty six or thereabouts.

That clearly is wrong. After 25 years from trial the plaintiff would, in fact, have been 42, as my

learned friend said, but His Honour does go on to

say, and this is where we say that it would, in any

event, not be a correctable error of discretion:

It is improbable that his earning capacity

would be affected for some time, if, indeed,

at all.

Picking the point of onset, for the purposes of

determining a deferment for calculating damages, is

not a matter of mathematical precision, as this

Court has frequently said.

DEANE J: What would you say to the proposition that reading

His Honour's judgment the most likely inference is

that he has deferred with the reference point being

when the plaintiff turned 36 and he has made a

mistake about how many years deferment that

involves.

MR GLISSAN:  It is likely, but it is by no means clear. A

little further down the page - perhaps I can just

complete the answer: 

one can say that the problem is to compensate
a plaintiff who in twenty five years' time at

age thirty six will probably suffer pain and

stiffness in an ankle which will bring with it

an undefined possibility of affecting his

earning capacity at some time and to some

unstated extent up to retirement -

But, Your Honour, subject to drawing Your Honour's

attention to those passages, I cannot say anything

about what Your Honour puts to me.

DEANE J: Should not the matter go back to the Court of

Appeal so that aspect of it can be dealt with?

Mitchell 13 15/11/91

MR GLISSAN: In the ordinary course, Your Honour, I suppose

remitting it to the Court of Appeal -

DEANE J:  No, I am not suggesting that we need make an order

remitting it. If you indicate - - -

MR GLISSAN:	Your Honour has in mind the slip rule, the decision of this Court in Parramatta Council v
Shaddock - - -

DEANE J: If you indicate that if it is taken back to the

Court of Appeal your client will not oppose the

court examining it and correcting it, if there is a

mistake - - -

MR GLISSAN:  Your Honour, so far as that is concerned, it is

a matter in respect of which, as Your Honour would

understand, I would need instructions.

DEANE J:  What about the 5 per cent, 3 per cent? I notice

the trial judge thought 5 per cent was right.

MR GLISSAN:  The trial judge also used 5 per cent. That was

agitated before the Court of Appeal. The Court of

Appeal determined to apply the 5 per cent tables.

In New South Wales the motor vehicle legislation provides statutorily for 5 per cent tables to be applied. The submission was put to the Court of

Appeal, as I understand my learned friend's written submissions which were handed to me a few moments

ago in that court, that the appropriate course for

the court there was to apply the law as it stood in

1983, rather than the law as it was at trial.	The
court made a determination in relation to that.

That is not a matter which ought to be interfered

with, in my submission.

DEANE J: Very well. Mr Cochrane, is there anything you

want to say in relation to what has been said by

Mr Glissan?

MR COCHRANE: Yes, if I might take up the very last point,

Your Honours. The 5 per cent and 3 per cent table

argument did arise in written submissions.

However, it was not alluded to in general argument

and there was not a substantive decision in

relation to that, with respect to my learned

friend. Indeed, the law that was operative prior

to 1 July 1984 was Your Honours' decisions in

Todorovic v Waller and those that followed and the

3 per cent tables were the appropriate ones. If

one wishes to have a little further clarification, I would hand to you the statutory provisions under

the particular amendments. You will see that it is circled, the date of introduction of the 5 per cent

tables that my learned friend alluded to.

Mitchell	14	15/11/91
DEANE J:	I do not think we need those.	If you want us to

look at them.

MR GLISSAN: While Your Honours are doing that, perhaps it

might be convenient for me to say that I have the

instructions to adopt the proposal which

Your Honour put to me.

DEANE J:	Thank you, Mr Cochrane.
MR COCHRANE:	May it please Your Honours.
DEANE J:	The Court notes that counsel for the respondent

undertakes that if an application is made by the

applicant to the Court of Appeal to correct as a
formal matter the 25 year reference point used in
the judgment of Justice Samuels as the basis for

discounting damages awarded for economic loss, the

respondent will not raise any objection to the

court addressing that question and determining

whether any such error did in fact occur and if it

decides that such an error did occur, correcting

it.

Is that an accurate statement, Mr Glissan?

MR GLISSAN: If Your Honour pleases.

DEANE J:  The applicant sustained physical injury when, at

the age of 11 years, he was struck by a car driven by the defendant in the grounds of the defendant's

home. He obtained a verdict against the respondent

in an action for negligence in the New South Wales

District Court and appealed to the New South Wales

Court of Appeal on both liability and quantum of

damages. The appeal was dismissed as to liability

but upheld as to damages.

The applicant by his next friend now seeks

special leave to appeal to this Court from the

decision of the Court of Appeal to the extent that

it reduced the learned trial judge's award of

damages in his favour. The basis upon which the

Court of Appeal reduced the award of damages was that the amount awarded for future economic loss should have been discounted for the reason that the

effect of the evidence was that economic loss

resulting from diminished working capacity would

not be sustained until the applicant was about 36

years old.

The case obviously turns very much on its own

facts. Notwithstanding the arguments advanced by

Mr Cochrane on behalf of the applicant, we are not

persuaded that an appeal would involve any question

of general principle which would justify a grant of

special leave to appeal to this Court.

Mitchell 15 15/11/91

Accordingly special leave to appeal is

refused.

AT 12.58 PM THE MATTER WAS ADJOURNED SINE DIE

Mitchell 16 15/11/91