Shaun Derrick Spargo And Scott Summers v Edward Greatorex And Alma Greatorex Shaun Derrick Spargo And Scott Summers v Glenys Irene McDonald (As Administrator Of the Estate Of Brian Allan Boundy)

[1992] SASC 3573

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA WHITE(2) ACJ, MULLIGHAN(1) AND PRIOR(3) JJ

CWDS
Negligence - road accident cases - Negligence - road accident - plaintiffs in the course of push starting a motor vehicle at an intersection controlled by traffic lights at night - intersection well lit by street lights - first defendant in control of the vehicle for the purpose of steering and starting it - vehicle unlit - plaintiffs run down by vehicle driven by second defendant - defendants conceded negligence - finding that plaintiffs not guilty of contributory negligence - appeal against that finding dismissed
Damages - general principles - Damages - personal injuries - first plaintiff severely injured - unable to resume occupation as foreman bricklayer - development of depression - voluntary services rendered by wife - award of $43,000 for voluntary services past and future - award for loss occasioned by incapacity to perform work in the building of a house - appeal against these awards allowed - damages not to be awarded for the companionship and comfort given by awarded a devoted and caring wife - measure of damages for incapacity to employ own labour in building the home is the value of that labour - appeal against awards for past economic loss and other future economic loss dismissed. Johnson v Kelemic (1979) FLC 78,487; Hodges v Frost (1984) 53 ALR
373 and Bruno v Davies (1988) 144 LSJS 226, applied.
Evidence - fresh evidence - damages - personal injuries - damages assessed on basis that second plaintiff aged 27 years would live beyond retiring age - sudden death of plaintiff after appeal by defendants instituted but before appeal heard - fresh evidence of fact and date of death received on appeal - basic assumption for award of damages falsified - appeal allowed and damages reduced. Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 and General Motors-Holden's P/L v Moularas (1964) 111 CLR 234 referred to. Peterhaensel v Woodman (1971) SASR 333, applied.

HRNG ADELAIDE, 6-7, 13 July 1992 #DATE 25:8:1992
Counsel for appellants:     Mr S Walsh QC with
  Mr A R Harris
Solicitors for appellants:    Ward and Partners
Counsel for respondents:     Mr K R Mccarthy QC with
  Ms J M Miller
Solicitors for respondents: Angela Bentley and Associates

ORDER
Appeals allowed.

JUDGE1 MULLIGHAN J These two appeals were heard together. The appellants were the drivers of motor vehicles which collided late at night on 29th March 1988 within the intersection of Main North Road, Midway Road and Fairfield Road at Elizabeth. Three men were seriously injured, the respondent Mr Greatorex, his son and Mr Boundy. Mr Greatorex and Mr Boundy brought separate actions against the appellants for damages for the injuries sustained and loss suffered by them in consequence of the accident. The actions were heard together by a Master who found both appellants guilty of negligence and that neither Mr Greatorex nor Mr Boundy was guilty of contributory negligence. The appellants appeal against the finding that there was no contributory negligence and against the assessments of damages in both actions. Mr Boundy died suddenly on 9th November 1991, after judgment, and the respondent, Mrs McDonald, is the administratrix of his estate. 2. Mr Spargo, Mr Greatorex, Mr Boundy, the son of Mr Greatorex and the father of Mr Spargo, were travelling in a motor vehicle in a southerly direction along the Main North Road at Elizabeth on their way home from a darts competition. Shortly before 11.15 pm the vehicle, which was being driven by Mr Spargo, came to rest in the centre lane at the intersection in obedience to the traffic lights. It had been raining and there was a light drizzle at the time. The vehicle stalled and could not be re-started immediately. The Main North Road, at this location, is a major arterial road and usually carries a large volume of traffic although, at this time, traffic conditions were light. 3. After a number of unsuccessful attempts to re-start the vehicle, a decision was made to attempt to push start it. In consequence, Mr Spargo remained in the driver's seat to steer the vehicle and to do what was necessary to enable it to start. The other men all alighted from the vehicle and took up various positions; Mr Spargo's father near the front passenger's door, Mr Greatorex at the rear on the nearside, Mr Boundy at the middle of the rear and Mr Greatorex's son at the rear on the offside of the vehicle. During the course of trying to start the vehicle in that way, it was pushed into the intersection and the traffic lights changed at least twice. These efforts were unsuccessful but were continuing when a vehicle driven by Mr Summers in the same lane and direction, collided with the rear of the vehicle and struck Mr Greatorex and Mr Boundy, thereby causing serious injuries to both of them. Mr Greatorex's son was also injured but these appeals are not concerned with the consequences of the accident to him. Despite having an uninterrupted view of the vehicle and the men pushing it, Mr Summers did not see the vehicle or the men until "a split second" before the collision. At the trial, both Mr Spargo and Mr Summers admitted negligence. 4. The intersection was well lit by street lighting. By the time of the collision, Mr Spargo's vehicle had proceeded abouteight paces into the intersection, which is about one half of the width of the intersection from north to south. When the men alighted from the vehicle, no tail lights or hazard lights were operating and, of course, as the vehicle was being pushed, the brake lights were not operating. There was no evidence to suggest that any lights were operating during the attempts to start the vehicle until the collision. However, the vehicle, and the men, were at all relevant times within an area which was well lit by the nearby street lights. Mr Summers was driving his vehicle at about 70 kph within the speed limit for this location which was 80 kph. When Mr Greatorex alighted from the vehicle he looked to the north and saw traffic stationary, facing south, at the next intersection, about one kilometre away. There was no south bound traffic between that intersection and Mr Spargo's vehicle. 5. It was contended at the trial, and on the appeal, that both Mr Greatorex and Mr Boundy were guilty of contributory negligence because they failed to keep a lookout to their rear as they were pushing the vehicle, they failed to push the vehicle to the left-hand side of the road instead of across the intersection and they failed to have one of the men placed further north as a lookout to warn of approaching traffic. 6. The learned Master expressed his reasons for rejecting the plea of contributory negligence as follows:-
    "I find that the intersection was well illuminated and
    that notwithstanding the weather conditions a prudent driver
    should have had no difficulty in seeing vehicles within the
    intersection as he approached. This is notwithstanding the fact
    of the wet roadway or reflections from it or of there being
    slight drizzle at the time. Whilst no doubt, with the benefit
    of hindsight, a person keeping a lookout to the rear might be
    seen to be sensible, on the exigencies of the occasion, it seems
    to me to be applying, in retrospect, an unnecessarily high test
    to the behaviour of Mr Greatorex in particular and, to a lesser
    extent, Mr Boundy. For a lookout to appreciate that a vehicle
    travelling at up to 80 k.p.h. was not likely to stop on the
    basis that those pushing the vehicle within the intersection had
    not been seen would allow very little time from the moment of
    such realization by the lookout until the moment of any impact
    to convey that fear to those pushing and thereby able them to
    escape to safety.
    I am not able to accept Mr Harris' submission that the failure
    by Mr Greatorex and Mr Boundy to push Mr Spargo's vehicle other
    than directly ahead has in any way contributed to this
    collision. Had Summers had a proper and adequate lookout, not
    only would he have seen the vehicle in the midst of a well
    illuminated intersection, he would have been able to safely pass
    by either side of the vehicle, having available to him so to do
    two-thirds of the roadway rather than a lesser portion if the
    vehicle was being pushed across two lanes. In any event, those
    pushing had no real control over the actions of Mr Spargo in the
    driver's seat or knowledge of his lookout to the rear.
    I am not satisfied that the failure of either of these
    plaintiffs to keep a lookout to the rear, or to request some
    other person present do so, has rendered them, or either of
    them, liable to contribute to the liability of the defendants
for the collision between the two vehicles". 7. Despite the detailed argument of Mr Walsh QC, who led for the appellants, the learned Master, in my view, was correct in his conclusion that neither Mr Greatorex nor Mr Boundy had failed to take reasonable care for their own safety. All of these men were faced with the problem of the vehicle having broken down and causing an obstruction to traffic in one of the lanes of this major road. If the vehicle was to remain where it broke down, it would constitute a continuing hazard which was acknowledged by Mr Greatorex in his evidence. It was prudent for them to do something quickly and the only sensible course of action was to try and re-start the vehicle by pushing it. The vehicle was within a well lit area and there can be no suggestion that any of them acted imprudently up until that time. As the vehicle had suddenly broken down, they were entitled to expect that it might re-start reasonably quickly. The suggestion that Mr Greatorex and Mr Boundy failed to take care for their own safety may only be made with hindsight but it can be no more than a suggestion. Their efforts in attempting to re-start the vehicle, and in pushing it, were undertaken promptly. They remained with the vehicle and they could easily be seen by approaching motorists. Mr Spargo was steering the vehicle and thereby determined its course after the pushing began. To steer the vehicle straight ahead and not to his left, in the circumstances, was the sensible thing to do, not only for the reason expressed by the learned Master but also because to steer the vehicle to the left-hand side of the road would not have removed the hazard. By the time of the collision the vehicle would still have been within the intersection and obstructing the left-hand lane instead of the centre lane. No doubt Mr Spargo would have been negligent in not turning on the lights of the vehicle if they had been capable of operating. 8. However, there was no evidence as to the cause of the breakdown of the vehicle and as to whether the lights would operate if switched on. Mr Walsh argued that, nevertheless, Mr Greatorex and Mr Boundy, by taking up their positions atthe rear of the vehicle, obscured reflectors, which could otherwise have been seen by an approaching motorist. I doubt that the evidence could support such a proposition. Presumably these men had been pushing the vehicle, off and on, for some time as the attempts to re-start it had occupied sufficient time for Mr Summers to have travelled about one kilometre and there had been changes in the traffic lights. The evidence does not establish that they remained in the same position obscuring the reflectors at all times let alone during the period when light from Mr Summers' vehicle would have been reflected. However, even if the evidence did justify such a conclusion, obscuring the reflectors when pushing the vehicle in this emergency situation, could not amount to a failure to take care of their own safety in the circumstances because the vehicle was well illuminated by the street lights and yet Mr Summers did not see it until a moment before the collision. Furthermore, there is no evidence to establish that lights from Mr Summers' vehicle would have reflected in such a way as to render Mr Spargo's vehicle more visible at any relevant time. 9. I agree with the conclusion of the learned Master as to the contention that a lookout should have been posted. 10. The circumstances in which these men found themselves is very different than the circumstances in Sloan v Kirby and Redman (1979) 20 SASR 263 and March v E. and M.H. Stramare Pty. Ltd. and Anor. (1991) 171 CLR 506. In both of those cases the driver of a motor vehicle had brought his vehicle to rest in a position on, or partly on, a roadway in circumstances where it wasreasonably foreseeable that another vehicle driven by a negligent motorist might collide with it. Those drivers were found negligent in leaving their vehicles in those circumstances. Here Mr Greatorex and Mr Boundy played no part in the creation of such a hazard. They were doing no more than trying, expeditiously, to remove the hazard. Furthermore, the application of the principles espoused in those cases does not lead to the conclusion that some responsibility for the injuries to Mr Greatorex and Mr Boundy should be apportioned to them. Such an apportionment may only be considered if they failed to take care for their own safety. 11. The appeal against these findings of the Master should be dismissed. 12. I now turn to the appeal against the assessment of Mr Greatorex's damages. 13. The learned Master assessed Mr Greatorex's damages at $504,015.88, which included awards of $43,000 for gratuitous services, $73,425.91 for past economic loss, $275,000 for future economic loss. The appellant's complain that these awards are manifestly excessive. He also awarded $20,000 to Mrs Greatorex for loss of consortium. The appeal against that award was not pressed but is said to be of significance with regard to the appeal against the award for voluntary services. 14. At the time of the trial, Mr Greatorex was aged 49 years. It is unnecessary, for present purposes, to recite the injuries or the treatment undertaken with respect to them. It is sufficient to say that he had severe injuries to his legs and lower back as well as other injuries. Considerable surgery and other treatment was necessary which required a lengthy stay in hospital initially and subsequent further treatment in hospital later in the year of the accident and during the following year. He endeavoured to rehabilitate himself over a considerable period of time, but has significant permanent disability. 15. When he returned home from hospital on the first occasion, 1st June 1988, he was totally unable to care for himself. Mrs Greatorex attended to all of his needs, including assisting him with bathing, toilet and meals, the cleaning of his wounds and the changing of dressings following instruction given to her at the Hampstead Rehabilitation Centre. She attended to these tasks without assistance for a period of two weeks. She then received some assistance from a district nurse. Mrs Greatorex tended to his wounds and changed his dressings at least twice a day and sometimes up to four times a day so as to ensure that various sites remained free of infection. She provided those services for a period of six weeks. Also she took him to a physiotherapist by pushing him in a wheelchair three or four times a week. She massaged his legs to increase circulation because of cramps. She slept in a separate bed to ensure his comfort but in the same room so as to be on hand when he required assistance during the night. She had to assist him in and out of bed and in walking. By August 1988 he was able to get out and play bowls and has continued to do so. As time went by he became depressed. No finding was made as to when the depression commenced but it would appear that he was depressed in the early part of 1989 and that his depression has since continued. The learned Master found that over the years since the accident Mr Greatorex has proved that he is able to do for himself generally, but, because of his depression he requires the company and day to day assistance over and above the type of assistance which would normally be provided by a wife to her husband. Further, he found that such company and assistance will be required for the rest of his life. 16. The evidence did not permit the learned Master to make a finding as to the number of hours each day when Mrs Greatorex provided care during the various stages of Mr Greatorex's recovery since the accident, such as it has been, or as to what would be required in the future. He accepted $10 per hour as a reasonable basis upon which to assess damages both for the past and the future. He said:-
    "It is necessary that there be involved in the calculation
    for such sum a global approach. It is necessary to take into
    account not only the matters that I have mentioned as relevant
    to the past and future but also the psychiatric prognosis that
    the plaintiff will remain depressed, notwithstanding the
    conclusion of these proceedings. He will continue to need the
    assistance and support of his family, particularly his wife, for
    the rest of his days. As I have said, the need for that support
    will be heightened at times of future operative treatment or
    when in the future he may become more depressed than is
    presently the position and will be more than what might normally
be expected to pass between a wife and an ill husband". 17. He allowed $25,000 for the past and $18,000 for the future. There can be no doubt that Mrs Greatorex provided very valuable care and assistance to her husband. He was a very active and hardworking man prior to the accident. His injuries and resultant disabilities had a profound effect upon him. He became frustrated and angry and, in consequence, suffered depression. He was tearful and difficult and Mrs Greatorex was able to assist by being with him and consoling him. It has not been suggested that her companionship and assistance have not been, and will not continue to be, of benefit to him. Furthermore, it is reasonable to accept that she performed considerable services, in the nature of nursing services, for some months after his discharge from hospital and that she will do so again should Mr Greatorex undertake the knee replacement operations which the learned Master found would be necessary in about 12 months and again in about 15 years. According to the psychiatrist Dr. Lucas, Mr Greatorex will probably suffer deeper depression after those operations and the companionship and assistance of his wife will assist him in coping during those periods. 18. The issue raised by the appeal against this award is whether the companionship and assistance given by Mrs Greatorex, which is of benefit to him when he is depressed, sounds in damages. If it does not, then the award for both the past and future is clearly excessive and, in my view, should have been $5,300 as to the past and $1,000 as to the future. The award for the past, in those circumstances, should be based upon extensive services during the first six weeks or so after Mr Greatorex was discharged from hospital and continuing, but progressively reducing, services during a further similar period. Having regard to the services which Mrs Greatorex would have provided for him, had he not been injured, it is reasonable to allow $3,500 for the first period and $1,800 for the second. Whilst it is not possible to make a precise calculation, these awards coincide with the rate accepted by the learned Master for about eight hours a day during the first period and an average of four hours a day during the second period. It is expected that the services required during convalescence after the knee replacement operation, leaving aside any assistance required with respect to depression, would be less. As they are to be rendered in the future, but allowed now, the cost must be discounted and, particularly with regard to the second knee replacement, various contingencies must be brought to account. Mr Greatorex may not have the operation. Mrs Greatorex or anyone else, may not provide the services. An award of more than $1,000 could not be justified. 19. Whether damages should be awarded for the type of assistance given to Mr Greatorex by his wife due to his depression, must be determined in accordance with established principle. Since it was confirmed by Beck v Farrelly (1975) 13 SASR 17 and Griffiths v Kerkemeyer (1977) 139 CLR 161 that damages are to be awarded for the accident-caused need of services even though those services have been rendered voluntarily and gratuitously, the cases establish that damages are not to be awarded for services which would have been provided by relatives and friends if the injuries had not occurred. Burke v Batchelor

(1980) 24 SASR 33, Kovac v Kovac (1982) 1 NSWLR 656, Masinovic v Motor Vehicle Insurance Trust, Bollen J unreported, 2nd August 1985, Judg. No. 8393, Beasley v Marshall (No.1) (1986) 40 SASR 544 are examples of the application of that principle. 20. Here, Mrs Greatorex was employed when the accident occurred and gave up her employment when her husband was discharged from hospital the first time so that she could care for him. Indeed, the evidence establishes that his treating doctors would not have discharged him from hospital at that time unless she was available on a full time basis to care for him. However, as the learned Master found, prior to the accident, she had considered giving up her employment in September 1988, although she probably would have continued to work until about the completion of the building and establishment of a house at Grandview Drive, Hillbank, which they would have built but for the accident. According to Mr Greatorex that project, if it had commenced, would have been completed by about mid 1989. Consequently, if there had been no accident Mrs Greatorex would have been at home and her husband would have had her company from that time. 21. Furthermore, it is acknowledged that not all services rendered by family members may be the subject of an award. In Johnson v Kelemic (1979) FLC
78,487, Mahoney JA., with whom Samuels JA. agreed, excluded those services which were (at p.78,496):- "... substantially the kinds of things which members of a family might be seen as doing for disabled persons in the family group, in the course of their ordinary day to day living, e.g. the helping in and out of the wheelchair, and the talk and comfort afforded to her in the evenings" (p.,78,496). 22. The same approach was adopted by the majority in Kovac v Kovac (supra) where a husband who was at home for reasons unconnected with the accident which caused injury to his wife. There, damages were not awarded for his general housekeeping and supervision of his wife. In Hodges v Frost (1984) 53 ALR 373, Kirby J, with whom the other members of the court agreed, after reviewing a number of authorities, acknowledged, at p.385:-
    "... there must be established a necessity to provide the
    service. It must be a necessity for the injured party. And
    because 'it would be reasonably necessary to do so at cost', the
    services must go beyond those of minor changes of domestic
    routine or attentive care that can be expected of loving
relatives and friends". 23. In Bruno v Davies (1988) 144 LSJS 226, White J awarded damages only for "the extra work involved in looking after (a disabled plaintiff) beyond the normal caring duties of a good wife": p.238. 24. I would not wish to give the impression of denigrating, in any way, the very dedicated attention by Mrs Greatorex to the comfort and emotional well-being of her husband. She helps in the sorts of ways which may be expected from a devoted and caring wife. However, the evidence does not establish that such assistance could be given by anyone else. The effects of his depression and his sense of loss are ameliorated to some extent by her affection, understanding and companionship. It is in that sense that she is of benefit to him. There is no suggestion that if she was not there someone else could be employed to take her place in that regard. In my view, she is doing no more than might be expected from a devoted and caring wife and even though the depression is a consequence of the accident, her assistance to her husband in this regard does not sound in damages. 25. Furthermore, it must not be overlooked that she obtained a substantial award of damages, $20,000, for loss of consortium and his damages for non-economic loss included a component for "the psychological overlay consequent upon his injuries", which I assume refers to his depressive illness. 26. For these reasons, I do not think there should be any additional allowance for the attention and care which Mrs Greatorex gives to her husband when he is depressed. 27. The award for past economic loss was based upon the net wages which Mr Greatorex would have received from his pre-accident employer, Adelaide Bricklayers, had he not been injured and continued in that employment until judgment, less the wages for the first week after the accident pursuant to s.35a(1)(d) of the Wrongs Act, 1936. The argument of the appellants proceeded on the basis that Mr Greatorex did not have any significant residual working capacity during that period, apart from sedentary work after recovering, as far as he did, from the injuries. It was not suggested that this residual capacity is a matter of significance in assessing damages for past economic loss but only with respect to the future. Furthermore, it was acknowledged that Mr Greatorex had worked hard all his life and that his incapacity prevented him from returning to his former occupation as a foreman bricklayer or from any employment involving physical work. 28. Mr Walsh contended that the learned Master was in error in equating damages for past economic loss with the total amount which Mr Greatorex would have earned but for the accident. He should have had regard to various adverse contingencies. Furthermore, on his argument, the evidence established that Mr Greatorex intended to assist his children in building houses which may have involved him in taking time off from work. Also, Mr Greatorex intended to build a new family home at Grandview Drive, Hillbank, employing his own skill and labour but was unable to do so because of his injuries. In his evidence he said that he proposed to undertake all of this building work at weekends and after hours but he did acknowledge that he had informed his employer of these plans and asked if he could have time off from work if needs be. It was contended that the contingency that he may have taken time off from work for these purposes without pay should have been brought to account. 29. The learned Master did not say that he had considered any contingencies when assessing the damages for past economic loss, but that is not to say that he did not do so. Even if he did not, they can be fairly evaluated on appeal particularly as the relevant evidence is not in dispute. It is of significance that over the years Mr Greatorex had built many houses and had remained in constant employment without significant absence from work. Also, there is the contingency that but for the accident he would have accepted the opportunity to work for his employer at Roxby Downs for six weeks or so at substantially higherwages. He was a valued and senior employee and there was little chance that he would have been retrenched. Indeed, the evidence establishes that his former employee had been affected by the recession during this period but at the time of the trial was employing sixteen men and, but for the accident, it is likely that Mr Greatorex would have continued to be their foreman. Also, as the damages were calculated on the basis of what he would have earned over a period of about three and a half years, the observations of King CJ in Jacka v Horton (1980) 88 LSJS 419, at p.424, are of significance:-
    "The amount of $19,000 allowed for damages for loss of
    earning capacity with respect to the pre-trial period was
    criticised. The amounts which the respondent would have earned
    before trial if there had been no accident, given continuous
    employment, total $19,210. It was argued that the learned judge
    should have made a greater deduction for contingencies which may
    have precluded the respondent from earning that sum irrespective
    of the accident. Such contingencies must be allowed for if a
    fair figure is to be arrived at. On the other hand it is to be
    remembered that the mere aggregation of the sums which a
    plaintiff would have earned but for the accident underestimates
    his true loss under inflationary conditions. The trial judge
    must have regard to pre-trial inflation and consequent
    diminution in the value of money. A plaintiff's damages are to
    be assessed in the money of the date of judgment. To provide
    just compensation a plaintiff should receive the equivalent in
    the money of the day of judgment, of the amounts which he would
    have earned. In practice justice is usually sufficiently done
    if a plaintiff is given the aggregate of the actual amounts
    which he would have earned, ignoring the counterbalancing
    factors of adverse contingencies and diminished value of money.
    But when those factors are taken into account, I do not think
    that $19,000 can be regarded as too high a sum for the pre-trial
    impact of the lost earning capacity". 30. Whilst it is true that an award of interest will compensate a plaintiff for not receiving such damages in current money value,seldom does it do so adequately. We were not informed of the amount, or basis, of the award of interest, but as the proceedings were instituted over 16 months after the accident, it is likely that Mr Greatorex has not been adequately compensated for not receiving damages for past economic loss in current money value. However, balancing all of these matters, the award for past economic loss cannot be said to be excessive. 31. This award for future economic loss has two components. The first is $210,000 for loss of future earning capacity as a foreman bricklayer. The second is an award of $65,000 for the loss occasioned by Mr Greatorex's inability, due to the accident, to build the home at Hillbank. With respect to the first component, the appellants complain that the learned Master did not bring to account the residual earning capacity of Mr Greatorex and did not give due weight to adverse contingencies. 32. The learned Master expressed his reasons for the award of $210,000 as follows:-
    "The plaintiff's future economic loss is made up of two
    parts. The first relates to his continuing employment as a
    foreman bricklayer based upon his current continuing net loss of
    $457.20 per week. From the certificate of Mr Stratford the
    appropriate multiplier to age 65 years is 530, giving a figure
    of $242,316.00. There must then be an adjustment in relation to
    contingencies. It is unlikely that there are any significant
    positive contingencies having regard to the age of the plaintiff
    and the increasing likelihood of unexpected events intervening
    in the latter portion of his working life. The negative matters
    to be considered are the likelihood of sudden and unexpected
    illness, accident, loss of employment through unassociated and
    uncontrollable economic factors and the like. Having regard to
    the evidence of Mr Van Eck, it seems that even in economically
    difficult times, such as the present, he has managed to sustain
    continual work and, accepting that the plaintiff would be
    amongst the very last of those tradesmen whom Mr Van Eck would
    feel compelled to let go in times of economic necessity, I think
    it unlikely that he would be unemployed. I allow the sum of
    $210,000.00. This might be a lesser reduction than would
    normally be expected in the circumstances of a person of the
    plaintiff's age. However, in my view, the negative
    contingencies, whilst they exist, are less prominent than in
    many other cases. It is much more likely that the plaintiff
    would have continued in employment for the whole of the
    remainder of his working life, subject only to the likelihood of
    ill health". 33. Mr Walsh contended that the evidence establishes a significant residual earning capacity as, despite his severe disabilities, he is capable of working as a supervisor, at bench work or in some other sedentary work. 34. The learned Master did not make any finding as to any residual earning capacity and did not mention that matter in his reasons for judgment. Once again, that does not necessarily mean that he did not consider it. The evidential base for such a finding is to be found in the reports of Mr Betts and Mr Atkinson, orthopaedic surgeons, who saw Mr Greatorex for medico-legal purposes. In a report which was tendered in evidence, Mr Betts said:-
    "I found Mr Greatorex a pleasant, forthright individual
    who has had a severe injury to his legs and has become extremely
    depressed about his restricted activity. I felt that he had
    tried hard and done his utmost to get himself going, but was
    restricted by quite severe disability in both knees and in the
    back. In addition, he is aged 47 and a Bricklayer, and I
    consider that this man will not get back to a job as a
    Bricklayer, and in fact any job which is full time on his legs.
    This is obvious, because having two unstable knees and a back
    problem he is unable to protect his knees by using his back or
    vice versa. He is already too, developing degenerate changes in
    his knees because of this injury. This further confirms the
    fact, that he can expect increasing discomfort in his knees.
    Likewise in his back, there are degenerate changes occurring and
    these will be further stressed by any active back use.
    The best I see Mr Greatorex doing, is a bench job, and this in
    itself will be hard for a man to take, and in fact at his age
    obtain, in the present labour market, as he has only been
    trained as a bricklayer.
    As to his future, I do not see him gaining much more as
    regards his knees and in fact I consider that they will tend to
    deteriorate, especially the left knee, in the very near future.
    His back I think will stabilise, as the fractured area has
    actually fused to the vertebra above, which will put an
    increasing strain on his back condition". 35. Mr Atkinson expressed the opinion that Mr Greatorex is not fit for performing heavy work as a bricklayer and "will be best suited for bench, driving or sedentary activities". Neither of these experts were called to give evidence with respect to Mr Greatorex even though Mr Betts gave evidence in relation to Mr Boundy. 36. Mr Greatorex was cross-examined about his residual capacity for work. It is unnecessary to recite his evidence. The effect of it is that he continues to suffer pain in his back and knees and would have difficulty in climbing ladders or doing any work of a physical nature. 37. All of this evidence is hardly a sound basis for a finding that Mr Greatorex has any significant residual working capacity which could be realistically utilized. Given his severe disabilities, it is difficult to see how he could effectively supervise any aspect of building work for any significant period of time. Should he attempt to do so, it is very likely that he would soon be overcome by pain and discomfort. His capacity to sit in a motor vehicle for long periods of time as a driver was not explored at the trial. Given the condition of his back and knees, there is no reason to suppose, in the absence of evidence, that he could do so. Furthermore, the opinion that he could undertake bench work is somewhat surprising in view of the pain and discomfort in his back and knees and the instability in his knees. Neither of these experts spoke of his depression and its effect upon his earning capacity. No doubt if they had given evidence they could have been asked about all of these matters and possibly a factual basis for a finding that Mr Greatorex had a residual earning capacity which could be realistically employed, could have been established. However, in my view, no such basis was established and the damages for loss of future earning capacity should not be reduced for that reason. 38. There is no reason to suppose that the learned Master did not give due regard to the adverse contingencies in the assessment. Mr Greatorex had a proven long history of hard work, including outside his employment as a foreman bricklayer. The learned Master mentioned the adverse contingencies which were plainly relevant. In allowing $210,000, he reduced the capitalized sum, calculated on the actuarial evidence, by about 12%. In view of the past working history of Mr Greatorex, his age and good health prior to the accident, it cannot be established that such a reduction is manifestly inadequate. Ifthe learned Master did fall into error, then he did so in a way favourable to the appellants. In my view, there were two "significant positive contingencies". But for the accident, Mr Greatorex may have worked beyond the age of 65 years and he may have resumed working, in his own time, upon house properties for financial gain, after he and his wife had developed the Hillbank property. It is not difficult to see that a man of his energy and drive would have become restless and again turned his hand to renovating other properties. The appeal against this part of the award must fail. 39. The appellants also challenged the award of $65,000. It is necessary to briefly mention the basis adopted by the learned Master for making this award. At the time of the accident, Mr and Mrs Greatorex were living in rented premises at Brahma Lodge. During the previous year they had sold their house property at Salisbury East and had purchased vacant land at Grandview Drive, Hillbank. As I have mentioned, they intended to build a new house on that block, commencing in about the middle of 1988. Mr Greatorex proposed to do such of the building work, as was within his capacity, and arrange for other tradesmen to undertake the balance. He was party to an arrangement with other tradesmen that they would work on each others' houses free of charge. After he was injured he realized that he could not undertake the project and he and his wife sold the vacant land in mid-1988. They purchased other land at Rochester Drive, Salisbury and built their present houseby letting a contract to a builder. The house was completed in late 1989. 40. The learned Master found that, but for the accident, the proposed house at Hillbank would have been built and completed by the end of 1989. He also found that it is likely that Mr and Mrs Greatorex would not have sold this house property after completion and it would have been their matrimonial home indefinitely. That was Mrs Greatorex's intention, although not accepted by Mr Greatorex as a certainty. The learned Master went on to find:-
    "Had the accident not occurred I have no doubt that Mr and Mrs
    Greatorex would now live in Grandview Drive. Taking a line
    through the opinions of the valuers, I find that the present
    value of that property is $195,000.00. The asset with which
    they are presently endowed and which they have because of the
    plaintiff's inability to do things for himself after the
    accident is the house at Rochester Drive. Again, taking a
    broadline through the valuations it has a present market value
    of $115,000.00. Thus, the plaintiff has lost the opportunity to
    create an asset that would today have a value of $80,000.00.
    From that figure is to be deducted what would have been the
    cost of interest to help finance the building at Grandview
    Drive, although this is offset to some extent by similar costs
    in relation to Rochester Drive. There is also the need for the
    plaintiffs to have paid rent for a longer period of time than
    was the case with Rochester Drive because of the longer building
    time. There is also a very small contingency, almost too remote
    to my mind, that some other event would have occurred so as to
    prevent Grandview Drive going ahead. Making due allowance, I
fix the loss to the plaintiff in this regard at $65,000.00". 41. Mr Walsh did not challenge these findings or the approach to the valuation evidence. However, he contended that the learned Master was in error in the basis for the assessment of future economic loss of this nature. Strictly speaking, theloss suffered by Mr Greatorex by not being able to build the house at Hillbank was not a future economic loss. It was a loss which had been incurred prior to judgment. However, that is a matter of no consequence on this appeal. 42. In my view, the learned Master was in error in his approach to the assessment of this loss. The true measure of the loss is not the difference in the value of the two properties but the loss occasioned by Mr Greatorex not being able to employ his own labour and skills in building the house at Hillbank. That arose in two ways. He could not undertake physical work himself and he could not build up credit in the labour exchange system that he had developed with others who were also building houses. The approach of awarding damages on the basis of the loss of the chance to build the house and by assessing the loss as the difference in value cannot be the correct approach because it was not established that his capacity to employ his labour, prevented the building of the house. He could have done what he did in relation to the Rochester Drive property. He could have built the Hillbank house by engaging a builder to build it in accordance with the plans and specifications which he would have used himself. Had he done so, the building contract sum would have included the cost of all necessary labour, including his own labour which he would have employed but for the accident. Had such a contract been let, Mr and Mrs Greatorex would have had their house at Hillbank of the value found by the learned Master. So, in my view, the only relevant consequence of the accident is that Mr Greatorex wasnot able to use his own labour and perhaps the labour of his friends to which he would have been entitled under the exchange system. It is the value of that labour which is the measure of his loss. 43. In Tunstill v State Electricity Commission of Western Australia (1965) WAR 50, Negus J had to consider the loss of the value of the labour of a plaintiff in building his own house. There the plaintiff was unable to continue with the building due to injuries sustained in an accident at work. Negus J held, at p.52:-

    "A reasonable man would have foreseen plaintiff would
    suffer economic loss and loss of working capacity; and just as
    it was foreseeable that plaintiff if injured in an accident
    would be prevented from earning money by working, so also it was
    foreseeable that he would be prevented from saving himself from
    outlaying money or gaining money's worth by working, e.g. the
value of the labour in his bricks and his house". He went on to say that:- "The correct approach perhaps would be to allow plaintiff the cost of replacing himself". 44. In my view, that is the approach which should have been adopted by the learned Master. This is not a case of Mr Greatorex being prevented from negotiating a building contract due to incapacity caused by the accident. He was able to do so with respect to the Salisbury property. That land was purchased in July 1988 and, presumably the building work commenced soon after as it was completed in late 1989. Mr Reeves, a building consultant, assessed the value of the labour which Mr Greatorex would have undertaken in the building of the house at Hillbank, but for the accident, at $31,602. That is the measure of the loss and damages in that amount should have been awarded. There was no evidence to establish the cost of the labour of the friends which would have been employed in the project but for the accident. 45. Mr McCarthy QC sought to defend the award of $65,000 upon an entirely different basis. Mr Greatorex had a proven record of building and renovating houses for profit prior to the accident. He intended to build houses for his son and daughter by using his own labour in much the same way as he proposed with respect to the Hillbank property. He is prevented from doing so by reason of his incapacity. Mr McCarthy argued that he should be awarded damages for the loss of his capacity to employ his labour in this way, even though there was no suggestion that his children would have paid him for his labour. He sought to derive support for this argument from Gillett v Callagher (1962) 36 ALJR 72. There, in an action by a widow, damages were awarded on a basis which included that a successful enterprise, which had been developed by the deceased, would have prospered further, but for his death. I am unable to see how that decision supports Mr McCarthy's argument. That case was concerned with the familiar exercize of determining the past and future economic losses to dependants in consequence of the death of the deceased. Here, there is no suggestion that, in working for his children, Mr Greatorex would employ his working capacity for financial reward. Like many caring parents, he intended to make a gift of his services to his children. Any loss as a result of being unable to assist them in that way, isnot an economic loss of Mr Greatorex, but a loss of his children. There is no basis for an award of damages on account of his being unable to work for the benefit of his children. 46. I would allow the appeal against the assessment of damages to the limited extent of reducing the award for gratuitous services to $5,300, $4,300 as to the past and $1,000 as to the future, and by reducing the award of $65,000, said to be for future economic loss, to $31,602. In the result, total of the assessment should be reduced by $71,098 to $427,917.88. This reduction may not affect the award of interest, but as we have no information as to how that award was calculated, we should hear the parties before reducing the amount of the judgment. 47. I turn now to the appeal against the damages awarded to Mr Boundy. 48. He was aged 24 years at the date of the accident and 27 years at the date of the trial and a single man. He was severely injured in the accident resulting in permanent and significant incapacity. The action came to trial in June 1991 and the learned Master published his reasons for judgment on 23rd July 1991. He assessed Mr Boundy's damages at $376,891.10, which included substantial components for future economic loss and future medical and surgery expenses. 49. After publishing his reasons for judgment and hearing the parties as to interest and making adjustments for special damages already paid by the insurer of the appellants, he entered judgment for $374,184.10, inclusive of interest, on 30th July 1991. 50. The appeal was instituted by Notice of Appeal on 13th August 1991, within the time prescribed by the Supreme Court Rules 1987. The appellants appealed against the awards for past and future economic loss. The grounds of the appeal challenged various findings of the learned Master upon which those assessments were based. Before the appeal was set down for hearing, Mr Boundy died. There was some delay occasioned by the necessity for an administrator of his estate to be appointed and for appropriate amendments to be made to the proceedings. Eventually, all necessary matters were attended to and the appellant, by leave, amended the Notice of Appeal by seeking leave to adduce evidence of the death upon the hearing of the appeal and raising further grounds of appeal to the effect that the damages should be reduced by reason of the death of Mr Boundy. 51. When the appeal came on for hearing, Mr McCarthy did not dispute the fact or date of Mr Boundy's death but objected to evidence of those matters being received on the appeal. He also objected to any evidence as to the cause or circumstances of Mr Boundy's death. After hearing argument, we adjourned the appeal to enable the parties to gather such evidence as they may wish to adduce should we decide to admit evidence as to the cause and circumstances of the death. Upon the resumption of the hearing, we were informed that it was agreed that Mr Boundy died on 9th November 1991 and he had been working on the previous day. Neither Mr Walsh nor Mr McCarthy sought leave to adduce any other evidence. We decided to receive theevidence of the fact and date of the death and noted the agreement that Mr Boundy had been working the previous day. We intimated that we would publish our reasons for that decision at a later date, which we now do. The parties agreed that the effect of receiving the evidence is that the damages should be reduced to $38,582.20. 52. The power of the Court upon hearing an appeal to receive further evidence is to be found in R.95.15(b) of the Supreme Court Rules:- "The Full Court or single Judge when hearing an appeal: ... (b) may in its discretion receive further evidence upon any question of fact." 53. The rule gives a wide power in the exercize of discretion and in the context of evidence relating to matters which have occurred subsequent to trial, the power is as wide as provided in the former rule, Order 58 rule 14(1), which read as follows:-
    "The Court on any appeal shall have all the powers and
    duties as to amendment and otherwise of the Court or Judge
    appealed from, together with full discretionary power to receive
    further evidence upon questions of fact, such evidence to be
    either by oral examination in Court, by affidavit, or by
    deposition taken under Order 37 Part 2. Such further evidence
    may be given without special leave upon interlocutory
    applications, or in any case as to matters which have occurred
    after the date of the decision from which the appeal is brought.
    Upon appeals from a judgment after trial or hearing of any
    cause or matter upon the merits, such further evidence (save as
    to matters subsequent as aforesaid) shall be admitted on special
grounds only, and not without special leave of the Court". 54. That rule was considered by this Court in Peterhaensel v Woodman (1971) SASR 333 upon an application to call furtherevidence on appeal of the change in circumstances of a quadriplegic as to the basis of his future care. There Bray CJ, with whom the other members of the Court agreed, held, at p.335, that:-
    "... the words of the rule do show an intention that
    applications to call further evidence as to matters occurring
    since the decision under appeal are to be treated differently
    from and less stringently than other applications to call fresh
    evidence. The matter is still one for the discretion of the
    Court but special grounds are not necessary and, in particular,
    the ordinary criterion that evidence could not by the exercise
    of reasonable diligence have been given at the trial is
    obviously inapplicable, or, perhaps, I should say, is ex
hypothesi satisfied". 55. The principles to be applied in the exercize of the discretion have been discussed in various cases including Peterhaensel v Woodman (supra). There Bray CJ considered leading English cases, based upon a rule of court in similar terms to our former rule, where further evidence was received on appeal: Curwen v James (1963) 1 WLR 748, where a widow had remarried shortly after trial, Jenkins v Richard Thomas and Baldwins Ltd. (1966) 1 WLR 476 where a worker did not continue after trial in the particular employment and which had been the basis of an award for future economic loss, Murphy v Stone-Wallwork (Charleton) Ltd. (1969) 1 WLR 1023 where the plaintiff was dismissed shortly after the appeal and damages had been assessed on the assumption that his employment would continue and Mulholland v Mitchell (1971) 1 WLR 93; (1971) AC 666 where damages had been assessed on the basis that the plaintiff could and would be looked after at home which subsequently proved impossible. He went on to say, at pp.336-337:-
    "It seemed to me that the present case fell within the
    principles laid down in these decisions and hence that the
    application to adduce further evidence should be granted. All
    the judgments in these cases, however, emphasise the caution
    that must be observed in this regard. The maxim interest
    reipublicae ut finis litium sit has not been abrogated. Leave
    to call further evidence will not be given simply because the
    view taken by the judge of the likelihood of one or more
    contingencies properly taken into account by him has not been
    justified by subsequent events. It is important to bear in
    mind, as Lord Wilberforce said in Mulholland's case (supra),
    that a facility given to one side cannot be denied to the other.
    I would cite with respectful and emphatic concurrence his
    words at p.102:- 'In other words, an appellant's contention that
    factors such as these have changed since the trial must, in
    normal cases, be met with the answer that the judge, in his
    estimate, has already taken account of them ... I do not think
    that, in the end, much more can usefully be said than, in the
    words of my noble and learned friend, Lord Pearson, that the
    matter is one of discretion and degree (Murphy (supra)).
    Negatively, fresh evidence ought not to be admitted when it
    bears on matters falling within the field or area of
    uncertainty, in which the trial judge's estimate has previously
    been made. Positively, it may be admitted if some basic
    assumptions, common to both sides, have clearly been falsified
    by subsequent events, particularly if this has happened by the
    act of the defendant. Positively, too, it may be expected that
    courts will allow fresh evidence when to refuse it would affront
    common sense, or a sense of justice. All these are only
    non-exhaustive indications; the application of them, and their
    like, must be left to the Court of Appeal. The exceptional
    character of cases in which fresh evidence is allowed is fully
recognised by that court'". 56. Our discretion had to be exercized in accordance with those principles. 57. Here the learned Master assessed the damages on the basis that Mr Boundy would live for a very long time, beyond a retiring age of 65 years, despite his disabilities. The awards for non economic loss and future economic loss make that plain. He awarded $300,000 for future economic loss on the basis that Mr Boundy's earning capacity as a plumber had been reduced by fifty per cent on account of his disability. The awards for future medical treatment was based upon his requiring pain killing tablets for the rest of his life. The award for future surgery was based upon the finding that he would require a knee replacement in 15 years. 58. In my view, it is beyond question that those basic assumptions of the learned Master have been "falsified" by the subsequent event of Mr Boundy's death so soon after the judgment. 59. Mr McCarthy argued that there was no such falsification and that the evidence should not be received because all that it established is that the view taken by the learned Master as to the likelihood of a contingency, i.e. premature death, properly taken into account by him had not been justified by subsequent events. He drew our attention to Doherty v Liverpool District Hospital (1991) 22 NSWLR 284. There the plaintiff injured his back at work and was awarded substantial damages, including for future economic loss, the jury having assumed a substantial life expectancy. He appealed against the award and before the appeal was heard, he died. At the trial the jury was specifically directed that, in assessing the plaintiff's damages, and considering his future life expectancy, they should take into account contingencies and vicissitudes of life including the possibility that the plaintiff may not live as long as expected. The direction included:-
    "You must also discount any such claim by ... what is
    called contingencies, contingencies of the future. I do not
    wish this on Mr Doherty, but he might not live to 65. Who knows
    what is around the corner? On a contingency that he might have
    sustained in any event injury which would have incapacitated
    him". 60. His death was unrelated to his injuries. The Court of Appeal declined to receive the further evidence on the appeal. In doing so Gleeson CJ, with whom the other members of the Court agreed, acknowledged that to admit or reject such evidence is a matter of discretion and degree and the principles stated in Mulholland v Mitchell (supra) could not be regarded as rigid or inflexible. He did not think that, in the circumstances, the principle of finality of the litigation was as weighty as it might be in other circumstances but he gave emphasis to:-
    "... the nature of the action, involving as it did the
     awarding once for all (sic) of a lump sum based upon the facts
    known at the date of the trial, coupled with the circumstance
    that the relevant event which occurred following the trial was
    the realisation of a specific contingency (the untimely death of
    the plaintiff who was already in middle age) which the jury were
    specifically instructed to allow for and in respect of which
    they were told to make a discount from their assessment of
    damages. It is true that this is a case where the plaintiff's
    death occurred a relatively short time after trial, although
    outside the time for appeal and cross-appeal, and also that the
    amount involved in this question is relatively significant.
    These are proper matters to be taken into account, but they do
    not outweigh the factors just mentioned": p.297. 61. Mr McCarthy submitted that we should adopt the same approach. He contended that the reasons for judgment of the learned Master reveal that he brought to account the contingencyof premature death in the usual way and also that this contingency is brought to account in the Australian Life Tables upon which the assessments for future economic loss and future treatment and surgery were based. 62. Consideration of the reasons for judgment of the learned Master reveals that he did not regard the premature death of Mr Boundy as a significant contingency, if he did have regard to it at all. It is only in the context of future economic loss that he may have done so. At one stage in his reasons for judgment, he mentioned that the approach in assessing damages for future economic loss was to apply an appropriate multiplier to a particular level of earnings "adjusted for contingencies". 63. Later in his reasons for judgment, he mentioned that the capital value of net earnings must be "adjusted for contingencies" but he went on to mention contingencies other than premature death. Finally, he said:- "Allowing for the usual negative and positive contingencies relating to his working life and the vicissitudes of life generally, I assess Mr Boundy's future economic loss at $300,000". 64. Whilst it may be said that the contingency of premature death is one of the usual negative contingencies and is one of the vicissitudes of life, and therefore the learned Master brought it to account, the reasons expressed by him for the damages awarded under the various heads make it plain that if he did have regard to the contingency, it was only in passing and not in a significant way. It is unnecessary to distinguish Doherty v Liverpool District Hospital (supra) as the decision in that case was the exercize of a discretion upon particular circumstances. However, in that case it must be assumed that the jury did apply the direction of the learned Trial Judge and have regard to the contingency of premature death of the plaintiff who was of middle age. Mr Boundy was a young man and, as I have said, the contingency of premature death was not brought to account in a significant way. 65. The Australian Life Tables do not bring to account the contingency adequately for two reasons. First, they formed no part of the assessment of damages for future non economic loss. Secondly, the Tables only bring to account the contingency with respect to future economic losses and expenses in a limited way. In assessing damages for future economic loss, the learned Master accepted the evidence of Mr Stratford, a consulting actuary. According to him, the present value of an annuity of $1 per week net loss ceasing upon the attainment of the age 65 or prior death for a male of the age of Mr Boundy was $868. That value had been calculated using the mortality basis of the Tables for males and a discount rate of 5% per annum, the rate prescribed in accordance with s.35a(1)(e) of the Wrongs Act. Mr Stratford was not asked to explain the mortality basis. In assessing damages for future treatment and surgery, the learned Master selected multipliers from the Tables published in Luntz; Assessment of Damages for Personal Injury and Death (3rd Ed.) which have regard to mortality. Some assistance in understanding the mortality basis of the Tables is to be found in the article of Lawrence J. Cohn, a Fellow of the Faculty of Actuaries in Scotland, "Assessment of Damages in Fatal and Non-Fatal Accident Cases" (1956) 29 ALJ 553, and the discussion in Luntz at p.275. The Tables have regard to the duration of human life estimated from the available statistics. They are the result of calculations on a scientific basis according to the probability of survival for each year into the future until the expected event, e.g. retirement. They reflect no more than the average mortality experience and are not concerned with the particular individual whose life-span is in issue. Here, the only matter personal to Mr Boundy which Mr Stratford brought to account was his age. Consequently, in applying the actuarial evidence in assessing the damages for future economic loss and treatment, the learned Master had brought to account no more than the average mortality experience of a male person of the age of Mr Boundy. He did not bring to account any matter personal to Mr Boundy or otherwise justified by the evidence, such as any relevant feature of his character, personality, lifestyle or any hazards of his chosen occupation. In General Motors-Holden's Pty. Ltd. v Moularas (1964) 111 CLR 234 at p.258, Windeyer J acknowledged the need to evaluate the contingency of premature death in the context of the individual:-
    "If the calculation put before (the jury) be an actuarial
    one, made by reference to average mortality experience, the

    possibility of the assumed period of working life being cut
    short by death is already allowed for to the extent of the
    average of the community; but probabilities peculiar to the
    individual plaintiff have not. If before the injury he in fact
    had some frailty or disease likely to result in early death or
    incapacity for work, some further allowance for that may seem to
a jury proper". 66. In my view, the learned Master did not adequately taken into account the contingency of premature death by use of the Tables or otherwise. 67. The fact that the basic assumption for the assessment has been falsified is not, in itself, decisive. Nevertheless, it is in the present circumstances a matter of considerable weight. To my mind not to have received and acted upon the evidence would "affront common sense or a sense of justice". As Lord Denning MR observed in McCann v Sheppard (1973) 2 All ER 881 at pp.885-886:-
    "The damages which the judge awarded were intended as
    compensation for the injured man himself - during the long years
    of life which the judge thought he would suffer pain and lose
    earnings. They were not intended to provide for the widow or
    child in case of his death". 68. Here it must be said that the damages were not intended for the relatives of Mr Boundy or any other beneficiaries of his estate. In my mind, it would be plainly unjust for the appellants, even if insured, to have to pay damages for a purpose which no longer exists. 69. Our attention was also directed to "the floodgates" argument. To allow the evidence to be given and to act upon it, would not in my view clear the way for parties to seek re-assessment of damages every time some subsequent event proves a basis for assessment of damages to be wrong. Such is made clear in Mulholland v Mitchell (supra) and Peterhaensel v Woodman (supra). In the latter case, Bray CJ, at p.337, said:-
    "These applications will only rarely be successful and then
    when the fundamental basis of the trial judge's assumption has
    been subverted by subsequent events. Another important matter
    is the time when the application is made. It is not to be
    expected that applications for extensions of time within which
    to appeal in order that evidence as to matters occurring since
    the decision should be adduced will normally meet with much
    favour. The end of the litigation, as far as the facts to be
    taken into account are concerned, may extend in rare cases from
    the date of the decision to the time of the hearing of the
    appeal when the appeal is lodged in time, but not normally
    beyond. In this case the application to amend was not made
    until the day when the appeal was called on before us, but the
    appeal itself was within the fourteen days allowed by the rules.
    Presumably it was not set down in time for the December sitting
    of the Full Court and that Court has not sat for the hearing of
    appeals since December until April 1971. It must not be taken
    that these applications will be granted lightly or that the
    normal rule that appellate courts sit only to decide whether the
    trial judge went wrong on the material properly before him will
    be readily departed from". 70. The falsification of the basic assumption of the learned Master that he would live beyond the usual retiring age far outweighs contrary considerations and, consequently, we exercized our discretion to receive the evidence. 71. The appeal must be allowed and, in accordance with the agreement between the parties, the damages reduced to $38,582.20. The assessment of the learned Master must be set aside and the respondent McDonald should have judgment for that amount. 72. The parties agreed that, in the circumstances, there should be no order as to the costs of the appeal.

JUDGE2 WHITE ACJ I agree with the reasons of Mullighan J and the orders which he proposes.

JUDGE3 PRIOR J I also agree.