Zorom Enterprises Pty Ltd v Zabow - [2007] NSWCA 106

NEW SOUTH WALES COURT OF APPEAL

CITATION: ZOROM ENTERPRISES PTY LTD v ZABOW & ORS [2007] NSWCA 106
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40477/06

HEARING DATE(S): 14 March 2007

JUDGMENT DATE: 4 May 2007

PARTIES:
Zorom Enterprises Pty Ltd (In liq) - Appellant
Peter John Zabow – First Respondent
Easterly Pty Ltd – Second Respondent
Robert Murray Tate – Third Respondent

JUDGMENT OF: McColl JA Basten JA Campbell JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1802/05

LOWER COURT JUDICIAL OFFICER: Keleman DCJ

LOWER COURT DATE OF DECISION: 27 July 2006

COUNSEL:
P. Deakin QC/S.W. Hickey – Appellant
M.F. Holmes QC/E.C. Muston – First Respondent
N. Polin – Second and Third Respondents

SOLICITORS:
Curwoods Lawyers – Appellant
Zabow Lawyers – First Respondent
Griffin Hilditch Lawyers – Second and Third Respondents

CATCHWORDS:
TORTS – vicarious liability – Civil Liability Act 2002 (NSW) – whether s 3B(1) excluded the operation of the Act in relation to the vicarious liability of an employer for an intentional tort by its employee
TORTS – vicarious liability – employment of security guards on licensed premises – – conditions imposed on licences under Liquor Act 1982 (NSW) – unauthorised act by an employee – whether employer of security guard vicariously liable
DAMAGES – exemplary damages – whether employer could be vicariously liable for exemplary damages
DAMAGES – future economic loss – whether assessment should be by way of a ‘buffer’ – whether correct comparable earnings used
DAMAGES – superannuation based on future economic loss – whether actuarial evidence necessary – whether a second discount should be applied because the amount is received now rather than later

LEGISLATION CITED:
Civil Liability Act 2002 (NSW), ss 3B, 3C, 13
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 5, 7, 8
Liquor Act 1982 (NSW), ss 103, 125
Security Industry Act 1997 (NSW)
Superannuation Guarantee (Administration) Act 1992 (Cth)

CASES CITED:
Allesch v Maunz (2000) 203 CLR 172
Branir Pty Ltd & Ors v Owston Nominees (No 2) Pty Ltd & Anor (2001) 117 FCR 424
Braverus Maritime Inc v Port Kembla Coal Terminal Ltd (2005) 148 FCR 68
Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232
Copyright Agency Ltd v Department of Education of New South Wales (1985) 4 IPR 5
59 ALR 172
Cowra Shire Council v Trudgett [2004] NSWCA 9
Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36
Deatons Pty Ltd v Flew (1949) 79 CLR 370
Foster v Tyne and Wear County Council [1986] 1 All ER 567
Fox v Percy (2003) 214 CLR 118
Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Rep 65 451
Gray v Motor Accident Commission (1998) 196 CLR 1
Hughes v Law Society of New South Wales [2004] NSWSC 290
Jones v Schiffmann (1971) 124 CLR 303
Jongen v CSR Limited [1992] Aust Torts Rep 81-192 (WASC)
Jovic v Lamont [2007] NSWCA 47
Lamb v Cotogno (1987) 164 CLR 1
Linsell v Robson [1976] 1 NSWLR 249
Lloyd v Grace, Smith & Co [1912] AC 716
Smith & Co [1912] AC 716
Minister for Immigration Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716
New South Wales v Ibbett [2006] HCA 57; (2006) 231 ALR 485
NSW Insurance Ministerial Corporation v Wynn (1994) Aust Torts Rep 81-304
Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626
Paul v Rendell (1981) 55 ALJR 371
Penrith City Council v Parks [2004] NSWCA 201
Roads and Traffic Authority v Cremona [2001] NSWCA 338
Sandstone DMC Pty Ltd v Trajkovski [2006] NSWCA 205
Starks v RSM Security Pty Ltd [2004] NSWCA 351
State of New South Wales v Bujdoso [2007] NSWCA 44
State of New South Wales v Bryant (2005) 64 NSWLR 281
State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168
State of New South Wales v Lepore (2003) 212 CLR 511
State of New South Wales v Moss (2000) 54 NSWLR 536
The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Thomson v Mybner Pty Ltd [2000] NSWSC 766; (2000) 31 MVR 335
Todorovic v Waller (1981) 150 CLR 402
University of Newcastle & Ors v Audio-Visual Copyright Society Ltd (1999) 43 IPR 505
Wagstaff v Haslam [2007] NSWCA 28
Waste Recycling & Processing Services of New South Wales v Meafou [2004] NSWCA 462
Whitehouse Properties Trading as Beach Road Hotel v McInerney [2005] NSWCA 436
Williams v The Minister for Aboriginal Land Rights Act 1983 and the State of New South Wales (2000) Aust Torts Rep 81-578; [2000] NSWCA 255
Law Reform Commission (NSW) “Proceedings by and against the Crown” (1975) par 13.27
Luntz “Assessment of Damages for Personal Injury and Death” 4th ed pp 681, 683

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40477/06
DC 1802/05
McCOLL JA
BASTEN JA
CAMPBELL JA
4 May 2007

ZOROM ENTERPRISES PTY LTD v ZABOW & ORS

On 15 March 2003, Mr Zabow was injured outside the Clovelly Hotel in an unprovoked assault by one of the security guards employed by Zorom Enterprises Pty Ltd. Zorom Enterprises appealed against a decision of the District Court which found it vicariously liable for the injuries caused by the security guard. The Appellant also challenged the damages awarded to Mr Zabow.

The issues for the Court of Appeal were:

whether s 3B(1)(a) of the Civil Liability Act 2002 (NSW) applied to exclude the operation of the Civil Liability Act in relation to the vicarious liability of an employer for an intentional tort by its employee;

whether the Appellant was vicariously liable for the assault by the security guard,

whether the trial judge erred in awarding exemplary damages;

whether the trial judge erred in his assessment of future economic loss; and

whether the trial judge erred in his calculation of superannuation based on future economic loss by not applying a second discount because the amount is received now, rather than some stage in the future.

Held dismissing the employer’s appeal,

In relation to (i):
per Basten JA (McColl & Campbell JJA agreeing)

There is no purpose or policy underlying the Civil Liability Act which would suggest that a different approach should be taken to the civil liability of the employee, as compared with that of the employer, when each is in respect of an intentional tort. Section 3B(1) does not differentiate in its operation between direct and vicarious liability and applies in this case to exclude the operation of the Civil Liability Act: at [13]–[14].

State of New South Wales v Ibbett (2005) 65 NSWLR 168, applied; State of New South Wales v Bujdoso [2007] NSWCA 44; Whitehouse Properties Trading as Beach Road Hotel v McInerney [2005] NSWCA 436; Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36, considered.

In relation to (ii):
per Basten JA (McColl & Campbell JJA agreeing)

An employer will be liable for the act of its employee only if the act is shown to come within the scope of the servant’s authority either as being an act which he was employed to perform or which was incidental to his employment. An employer is liable for unauthorised acts if they may be regarded as modes – although improper modes – of exercising authority: at [21] and [24].

Deatons Pty Ltd v Flew (1949) 79 CLR 370; State of New South Wales v Lepore (2003) 212 CLR 511, applied.

Although it may be important to identify the acts of an employee by reference to his or her contractual duties, defined with some precision, that course will not always provide a ready answer. An employer will be vicariously liable for the intentional tort of an employee where the conduct was done in the intended or ostensible pursuit of the employer’s interest, or in the intended performance of the contract of employment, or the apparent execution of the authority which the employer held out the employee as having: at [26].

State of New South Wales v Lepore (2003) 212 CLR 511, applied; Lloyd v Grace, Smith & Co [1912] AC 716; Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716, considered.

Whilst there was a lack of evidence as to the nature of the contractual engagement of the security guards by the hotel, it was open to the trial judge to draw inferences as to the duties and responsibilities of the security personnel, based on the evidence as to what took place on the night in question. Further those duties were referrable to the conditions of the licence of the hotel and the general provisions of the Liquor Act 1982 (NSW): at [34] and [37].

Wagstaff v Haslam [2007] NSWCA 28, applied.

The language used by the security guards demonstrates that the assailant was seeking to disperse the group and have them move on, albeit in an entirely unacceptable fashion. The fact that he struck not merely the plaintiff, but three persons in a short period, together with the words used, demonstrates that he perceived himself as acting in the interests of his employer and in the performance of his employment duties. The finding of the trial judge demonstrated no error in this respect: at [41].

In relation to (iii):
per Basten JA (McColl & Campbell JJA agreeing)

The trial judge did not err in awarding exemplary damages against the Appellants, in relation to an assault for which it was vicariously liable: at [44]–[46].

State of New South Wales v Bryant (2005) 64 NSWLR 281, applied; Gray v Motor Accident Commission (1998) 196 CLR 1; Lamb v Cotogno (1987) 164 CLR 1, considered.

In relation to (iv):
per Basten JA (McColl & Campbell JJA agreeing)

The trial judge did not err in rejecting an assessment of future economic loss by way of a “buffer”. His Honour correctly noted that the assessment of damages generally were incapable of mathematical precision and required a process of estimation of possibilities, carried out within broad parameters: at [50].

Penrith City Council v Parks [2004] NSWCA 201, per Giles JA at [5] considered.

The factual findings relied upon uncontested evidence as to the comparable earnings of a construction plumber and involved no appealable error: at [53].

In relation to (v):
per Basten JA (McColl JA agreeing)

To include an amount on account of the employer’s superannuation contributions in an award of damages, without using actuarial evidence, is justifiable on the basis of the application of a certain and simple ‘rule of thumb’, especially in circumstances where the amount involved would not justify the expense of an expert report: at [57].

Ghunaim v Bart [2004] NSWCA 28; Todorovic v Waller (1981) 150 CLR 402, applied; NSW Insurance Ministerial Corporation v Wynn (1994) Aust Torts Rep ¶81-304, distinguished.

The employer’s contribution should be treated as giving rise to a fund payable on a future date, which must be discounted according to the 3% tables so as to provide a net present value for that sum. Further discounting would involve a level of double-discounting because the deferred table multiplier should be applied to the fund which should be payable at the end of the plaintiff’s working life, not the present value of that fund. The trial judge did not err in his approach: at [66]-[67].

Todorovic v Waller (1981) 150 CLR 402; Roads and Traffic Authority v Cremona [2001] NSWCA 338, applied; Thomson v Mybner Pty Ltd [2000] NSWSC 766; Waste Recycling & Processing Services of New South Wales v Meafou [2004] NSWCA 462; Jongen v CSR Limited [1992] Aust Torts Rep ¶81-192, considered.

Per Campbell JA

Accurate calculation of the present value of superannuation benefits that a plaintiff has lost by reason of the defendant's tort is in principle impossible. When accurate calculation of a head of damages is not possible, the quantum of that head of damages can be arrived at by a reasoning process that has a rational basis to the extent that the evidence presented, and the intrinsic nature of the materials and subject matter under consideration, permit. The trial judge's methodology assessed damages as that sum that, invested at 3%, would provide weekly payments equal to the amount of employer contributions that the plaintiff is likely to have lost.

The trial judge’s methodology has a rational basis. The methodology that the appellant advocated in the present case is not preferable to the trial judge’s methodology. The appellant has not succeeded in demonstrating that the figure at which the trial judge arrived is wrong and the appeal should not be upheld: [98]–[101].

Waste Recycling & Processing Services of New South Wales v Meafou [2004] NSWCA 462, considered; Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359; Williams v The Minister Aboriginal Land Rights Act 1993 and The State of New South Wales (2000) Aust Torts Rep ¶81-578; Fox v Percy (2003) 214 CLR 118; Allesch v Maunz (2000) 203 CLR 172; Branir Pty Ltd and Others v Owston Nominees (No 2) Pty Ltd and Another (2001) 117 FCR 424; Jovic v Lamont [2007] NSWCA 47.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40477/06
DC 1802/05
McCOLL JA
BASTEN JA
CAMPBELL JA
4 May 2007

ZOROM ENTERPRISES PTY LTD v ZABOW & ORS

Judgment

McCOLL JA: I agree with Basten JA.
BASTEN JA: On the night of 15 March 2003, Mr Peter John Zabow was assaulted outside the Clovelly Hotel, in the suburb of Clovelly, Sydney. He was struck by a security guard, suffering significant head injuries. He brought proceedings in the District Court against the licensee and occupier of the hotel and against two companies responsible for providing security personnel who were working at the hotel on the evening in question.
Shortly before the incident in which the plaintiff was assaulted, two of his friends, who had been with the plaintiff attending a party at the hotel, had been evicted by security personnel, and were outside the hotel on a footpath with seven or eight security personnel in the vicinity. A significant issue in the trial in the District Court was the identity of the person who hit the plaintiff. There were in fact eleven security personnel at the hotel on the evening in question, five of whom were provided by a company known as DSS Group Pty Ltd and six by the present Appellant. Although the trial judge was not able to identify the assailant by name, he was satisfied, on the basis of the description of his clothing that he was one of the men employed by the Appellant. That finding is not challenged. What is challenged is his Honour’s conclusion that the Appellant was vicariously liable for the assault by its employee.
There was also a challenge to the damages awarded to the plaintiff, specifically to the amounts included for future economic loss and lost future superannuation and the inclusion of an amount for exemplary damages.
At trial, the question of vicarious liability of the employer appears to have been litigated by reference to general law principles, and without consideration of the Law Reform (Vicarious Liability) Act 1983 (NSW) (“the Vicarious Liability Act”), and in particular s 7 thereof. However, the defendants at trial did seek to invoke the operation of the Civil Liability Act 2002 (NSW), specifically in relation to the assessment of damages. It is convenient to deal immediately with the operation of the latter Act in the circumstances of this case.
Civil Liability Act
The primary pleading in the statement of claim was that the various defendants were liable for the assault and battery committed on the plaintiff. In the alternative, a claim was pleaded against each in negligence. The latter claims were rejected by the trial judge, as were the claims of vicarious liability for assault and battery in relation to all the defendants other than the employer of the assailant. The operation of the Civil Liability Act therefore turned on the general exclusion in relation to intentional torts, contained in s 3B(1)(a).
At the date of the commencement of these proceedings (and indeed at the date of the incident) s 3B(1)(a) of the Civil Liability Act read:
“3B Civil liability excluded from act
(1)The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:
(a)civil liability in respect of an intentional act that is done with intent to cause injury or death … - the whole Act … in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death.”
The Appellant’s contention was that the exclusion only operated in relation to the civil liability of the person who did the act and had the relevant intent. The exclusion did not apply, it was argued, in relation to any other form of liability, including that of an employer vicariously liable for such an intentional act.
On 29 November 2006, the Crimes and Courts Legislation Amendment Act 2006 (NSW) (“the 2006 Amendment Act”) commenced. That Act sought to amend s 3B(1)(a) and to do so retrospectively. Following that amendment, paragraph (a) reads:
“(a)civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person – the whole Act … in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death.”
(The effect of the amendment was to add the phrases which have been underlined.)
It is not necessary to consider the operation of the transitional provisions in relation to this amendment, this Court having held that the amendments to this provision did not change its operation: see State of New South Wales v Bujdoso [2007] NSWCA 44 at [2] (Hodgson JA), [22] (Ipp JA) and [56]-[68] (Basten JA). A question remains, however, as to the operation of this provision in relation to the vicarious liability of an employer in relation to an intentional act of the employee.
Bujdoso was not concerned with questions of vicarious liability: it was concerned with a claim against a defendant in negligence, albeit the risk against which precautions were said to be necessary was the intentional violent act of a third party: at [66]. The nexus required by the phrase “in respect of” depended on the statutory context. However, the relationship between a claim in negligence in the circumstances noted and, as in the present case, a claim based on vicarious liability for the intentional act, involved quite different considerations: Bujdoso at [57]. This question did, however, arise in State of New South Wales v Ibbett [2005] NSWCA 445, reported in part at (2005) 65 NSWLR 168, including the reasoning with respect to the operation of s 3B(1)(a). In that case, the liability of the State was vicarious, albeit based upon the intentional act of a police officer, being a liability which arose under the Vicarious Liability Act. Although the precise point of construction may not have been raised in that case, this Court held that the operation of the Civil Liability Act was excluded by s 3B(1): at [17] (Spigelman CJ); at [130] (Ipp JA), a point which I did not need to decide, at [220]. The issue was not addressed on appeal to the High Court: New South Wales v Ibbett [2006] HCA 57; (2006) 231 ALR 485.
In other cases it appears also to have been assumed that a claim in tort for damages in respect of an assault, not based on negligence, gave rise to an assessment in accordance with principles of the common law, where the liability of the defendant was vicarious: see Whitehouse Properties Trading as Beach Road Hotel v McInerney [2005] NSWCA 436 at [8].
The Appellant’s argument relies on the proposition that, as has been made express in the current form of s 3B(1)(a), the exclusion operates only with respect to the civil liability of a person “in respect of” an intentional act that is done by the person, namely the person whose liability is in issue. In its terms, this says nothing about the liability of an employer in relation to the intentional act of a third party, be it an employee, an independent contractor or anyone else. As with the alternative construction rejected in Bujdoso, this seeks to stretch the language, albeit in the opposite direction, so as to give the narrowest possible exclusionary effect to the provision. It requires that the civil liability of the employer involve some different form of liability from that of the employee. This may be thought to resurrect similar distinctions to those drawn in Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 between the responsibility of an employer for the breach by the employee of the duty imposed on him or her, as compared with the breach by the employer of a duty imposed on it, by the act of its employee. As in Ibbett in the High Court (at [56]), it seems unnecessary to rely upon such esoteric distinctions in order to identify the scope of a statutory provision. Rather, it is sufficient to identify the liability of the employer as derivative from, but not in substance different from, that of the employee. There is no purpose or policy underlying the Civil Liability Act which would suggest that a different approach should be taken to the civil liability of the employee, as compared with that of the employer, when each is in respect of an intentional tort. The employer does not escape liability, under the general law, by demonstrating that it did not have the intention of its employee. So, for the purposes of s 3B(1)(a) of the Civil Liability Act, the act is that of the employer, as is the intention.

This approach gains some support from the obverse proposition contained in s 3C, which states:
“3C Act operates to exclude or limit vicarious liability
Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.”
In other words, the statutory scheme does not seek to differentiate in its operation between direct and vicarious liability; it should not be inferred that it seeks to do so by a provision such as s 3B(1), which excludes its operation.
Factual circumstances
Before turning to the legal principles relevant to the attribution of vicarious liability, it is desirable to set out briefly the facts which gave rise to the present proceeding.
During the course of the evening, three friends of the plaintiff had, at different stages, been asked to leave the hotel. One of them, Matthew Weir, had apparently been taken across the road from the hotel by a security guard holding him in a headlock. According to the evidence accepted by the trial judge, “Matthew Weir, who is apparently an asthmatic, then walked back towards the hotel as he was having an asthma attack and was asking for a puffer and to speak to the manager”. At that stage, there was a group, on the pavement outside the hotel, including the plaintiff, and five friends or acquaintances, being Christopher Vallis, Owen Goggins, Sean Cooney, Liam Geale and Matthew Weir. According to the plaintiff there were also seven or eight security guards around Matthew Weir, accusing him of being a liar and faking illness and telling him that he could not see the manager. Nevertheless, a man whom the trial judge accepted was the manager of DSS Security did come across and told them that “there was nothing wrong” and that they had been asked to leave. Whether his comment that there was “nothing wrong” referred to Mr Weir’s health, or his complaint of being manhandled, is not clear. It appeared from the evidence of the hotel manager that at some stage he was asked by a security guard if he had a puffer, which he had and provided. The claim that they had been told to leave was true in relation to Cooney, Goggins and Weir.
When the plaintiff was approaching the group, he said that he saw a security officer slap Goggins across the back of the head. The incident which involved the injury to the plaintiff, and which apparently occurred after the DSS manager had arrived, was described by his Honour in the following terms:
“Sean Cooney then said, ‘Can you please attend to my friend he is not well’. Returning again to the plaintiff’s evidence, the same bouncer who had earlier slapped Owen Goggins, then said ‘I’ve had enough of this shit’, and in a sudden movement he stepped over Matthew Weir, who was on the ground and punched Sean Cooney on the left side of his face. … The plaintiff’s evidence is that as soon as Sean Cooney was punched, the plaintiff turned to the group of bouncers and the person who identified himself as the manager and said, ‘What are you hitting my friend for’. The next recollection the plaintiff had was waking up across the road from the hotel. According to the evidence of Christopher Vallis, after Sean Cooney was hit, the bouncer who punched him … threw a punch at the plaintiff, which Mr Vallis described as a ‘haymaker’ or ‘king hit’, having lined up the plaintiff from behind, as the plaintiff had not been facing him. It was Mr Vallis’ evidence, which I accept, that as a result of being punched the plaintiff fell and on the way down his head hit a pole or the back of a motor vehicle.
It was Mr Geale’s evidence, which I accept, that prior to being punched the plaintiff had not been aggressive and the punch was unexpected and thrown without warning. … I am satisfied from the combined effect of the plaintiff’s and Mr Vallis’ evidence that the plaintiff was struck within seconds of Sean Cooney being struck and immediately after he asked the security guards why his friend had been hit. …
Mr Geale gave evidence, which I accept, that immediately after the plaintiff was struck, the person who had identified himself as the manager earlier, gave instructions to the other security guards for the assailant to be removed from the area, and as a result two of the other security guards pulled him up the street.”
Against this background, the Appellant argued that there was no proper basis for his Honour to find that it, as the employer of the assailant, was vicariously liable for the act of the assailant, as he was engaged in a frolic of his own unrelated to his responsibilities and duties on the night in question. It further argued that his Honour was in error in finding that there was a sufficient connection between the purposes for which the assailant was employed as a security guard and his conduct, in the absence of any evidence as to the nature of the contractual engagement of the security guards by the hotel.
To assess these complaints, it is necessary to identify the relevant legal principles, against which his Honour assessed the facts set out above.
Legal principles: vicarious liability
The case was run at trial (and on appeal) on the basis of general law principles with respect to vicarious liability, as explained in Deatons Pty Ltd v Flew (1949) 79 CLR 370, State of New South Wales v Lepore (2003) 212 CLR 511, applied in this Court, in Starks v RSM Security Pty Ltd [2004] NSWCA 351 at [12]-[24]; Sandstone DMC Pty Ltd v Trajkovski [2006] NSWCA 205 at [9]-[17] (Ipp JA, Handley and McColl JJA agreeing). In seeking to establish the relevant principle to apply, some attention was paid in the course of argument to the language used in these various authorities.
The underlying principle is not in doubt: an employer will be liable for the act of its employee “only if the act is shown to come within the scope of the servant’s authority either as being an act which he was employed actually to perform or as being an act which was incidental to his employment”: Deatons v Flew, at p 378 (Latham CJ). However, the precise application of that principle, so stated, can give rise to difficulties. Thus in Deatons v Flew, a barmaid in the employ of Deatons had assaulted a patron in the hotel by throwing the contents of a glass of beer and the glass itself, striking Mr Flew in the face. The jury found in his favour and the liability of the barmaid for the assault was not in issue on appeal. The question was whether her employer was liable for her action. Dixon J, at 381-382, categorised the facts in the following way:
“The truth is that it was an act of passion and resentment done neither in furtherance of the master’s interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.”
It may be added that his Honour dismissed the suggestion, on the facts, that she acted “in the course of maintaining discipline or restoring order” or that that was part of her responsibility: at p 381. It is clear that a mere temporal connection between employment and the improper or unlawful act of the employee is insufficient to give rise to vicarious liability.
Lepore was a case involving a somewhat different factual situation, in which the State was sought to be held liable by a pupil of a State school for sexual abuse by a teacher. However, Deatons v Flew was identified as the leading Australian authority on the subject of vicarious responsibility for an assault by an employee by Gleeson CJ at [49]. His Honour summarised the Court’s approach in the following passage (at [50]):
“The Court considered that, on either version of the facts, the employer was not vicariously liable for the trespass: on the plaintiff’s version what the barmaid did was a gratuitous, unprovoked act; the only alternative view open was that it was an act of personal retribution. Either way, it was not incidental to the work she was employed to do. It was emphasised that it was not the duty of the barmaid to keep order in the bar. There were other people to do that. Her job was merely to serve drinks. Her conduct was not an excessive method of maintaining order. It was ‘a spontaneous act of retributive justice’.”
The Chief Justice referred to the formulation of the test in Salmond, Law of Torts, that “an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act”: at [42]. At [51] his Honour continued:
“As has frequently been observed, the answer to a question whether certain conduct is an improper mode of performing an authorised act may depend upon the level of generality at which the authorised act is identified. If, on the facts, it had been possible to treat maintaining order in the bar as one of the barmaid’s responsibilities, and if, on the facts, it had been open to regard her conduct as an inappropriate response to disorder, then the jury could properly have held the employer liable in trespass. However, the barmaid’s only responsibility was to serve drinks, and throwing a glass of beer at a customer could not be regarded as an improper method of doing that. The level of generality at which it is proper to describe the nature of an employee’s duties ought not to be pitched so high as to pre-empt the issue. The fact that an employer owes a common law duty of care to an injured person does not mean that it is appropriate to describe the employment duties of all the employees as including taking care of the person.”
His Honour also stated, at [54]:
“Where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator, or whether it is within the scope of employment.”
The difficulty in articulating a coherent basis for upholding vicarious liability of an employer was noted by Gaudron J in Lepore at [127]-[131]. Although it may be important to identify the acts of an employee by reference to his or her contractual duties, defined with some precision, that course will not always provide a ready answer. Nor is it sufficient to say that the act must be done in the intended pursuit of the employer’s interests or in the intended performance of the contract. That test fails to explain the basis on which a solicitor might be found liable for the unauthorised fraud of a managing clerk, as in Lloyd v Grace, Smith & Co [1912] AC 716 or the basis on which an employer was found liable where its employee, having the duty to clean and return a fur coat, stole it: Morris v C. W. Martin & Sons Ltd [1966] 1 QB 716. These concerns led Gummow and Hayne JJ in Lepore to a carefully constrained statement of principle at [239]:
“For present purposes, it is enough to conclude that when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer’s interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer’s business or the apparent execution of the authority which the employer held out the employee as having.”
There may be a legitimate distinction between taking property of a customer of one’s employer and undertaking a violent assault in the course of one’s employment. However, as Kirby J noted in Lepore, the cases are not readily rationalised according to any precise principle, which led his Honour to adopt a test of “close connection” between the act and the duty of the employee which, inevitably, involved matters of evaluative judgment: at [315]-[320]. This approach was expressly rejected by Callinan J at [345] as likely to throw the law into a state of uncertainty. His Honour was content not to articulate any broad principle, that being unnecessary to determine the liability of the State for sexual misconduct of a teacher.
As various courts, including this Court in the cases identified above, have held, an employer of security guards may be liable for unlawful assaults undertaken by them during the course of their employment. The distinction usually drawn between such cases and Deatons v Flew is that security officers (unlike a person who is merely employed to serve drinks) are expected to use force from time to time, in circumstances where the level of force required is left to their judgment. The use of excessive force may demonstrate an error of judgment or it may demonstrate something worse. That is why, in a case such as the present, it is necessary to bear in mind the comment of Gleeson CJ set out at [25] above that the nature and seriousness of the criminal act may well be relevant to its characterisation.
Before applying these principles to the present case, it is convenient to consider whether any different test is required by s 7 of the Vicarious Liability Act, which reads as follows:
“Vicarious liability of masters
7.Notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by his servant in the performance or purported performance by the servant of an independent function where the performance or purported performance of the function:
(a)is in the course of his service for his master or is an incident of his service (whether or not it was a term of his contract of service that he perform the function); or
(b)is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of his master.”
As noted by Smart AJ in Hughes v Law Society of New South Wales [2004] NSWSC 290 at [21], the Vicarious Liability Act found its origins in a report of the Law Reform Commission (NSW) on “Proceedings by and against the Crown” (1975). Although s 7 is directed to the position of employers generally, the reference to performance by a servant “of an independent function” would appear to be limited to a function conferred or imposed by law: Report, par 13.27. Perhaps curiously, the term “independent function” is defined in s 5(1), but only “in relation to a servant or a person in the service of the Crown”, language which is apt to apply to the vicarious liability of the Crown under s 8. An example of a private employer being sued for the exercise of an independent function may be found in the case of the asserted liability of a port authority for the negligence of a pilot in Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626. Whilst the pilot was in the employ of Pilbara, and Pilbara was a private company incorporated for commercial purposes, it nevertheless enjoyed the general law immunity from vicarious liability for the acts of a public officer exercising independent responsibilities conferred by law, as noted by the Full Court of the Federal Court in Braverus Maritime Inc v Port Kembla Coal Terminal Ltd (2005) 148 FCR 68 at [97], a case in which s 7 of the Vicarious Liability Act was referred to but not applied, at [124]. (Section 7 was also referred to, but not applied, in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at [77] (Spigelman CJ).) In the present circumstances it would be necessary to show that the statutory powers and obligations under the Liquor Act 1982 (NSW), discussed at [37] below, perhaps in conjunction with the licensing regime for security guards under the Security Industry Act 1997 (NSW), conferred an independent function of a public nature on the security guards. That approach was not relied on by either party.
Assuming that s 7 does not apply in relation to the potential liability of a private employer in respect of employees undertaking security duties at a private hotel, there may be an issue as to whether, nevertheless, the statutory language invokes some different test to that found in the general law so that, as a matter of consistency, the statutory test should be taken into account in the present case. However, that matter not having been argued, it need not be pursued.
Application of principles
It is necessary to commence with some identification of the duties and responsibilities of security staff on the night in question. The Appellant commenced with the proposition that DSS, not it, was the agency through which the licensee of the hotel arranged for the provision of security guards, as found by his Honour in his judgment at p 13. The Appellant stated that there was no evidence of, or finding about, the relationship between DSS and the Appellant.
There was, however, evidence as to the presence of security guards employed by both DSS and the Appellant being involved in the removal of disruptive patrons on the night in question. His Honour drew no distinction between the responsibilities of the two groups of employees and it was undoubtedly open to him to take the position that they were engaged in the same functions. The Appellant did not call evidence to suggest that its employees were engaged in some more restricted function, with the result that the inference otherwise available on the facts may more readily be accepted.
It was also open to his Honour to draw inferences as to the duties and responsibilities of the security personnel, based on the evidence as to what took place on the night in question. In addition, there was evidence of the conditions imposed on the licence of the Clovelly Hotel, which included the following:
“7.On nights when entertainment is provided, the licensee and his employees shall patrol the area in the vicinity of the premises to ensure that patrons of the premises do not loiter or linger in the area or cause nuisance or annoyance to the neighbourhood
Such patrols to continue until the last patron has left the premises and the area.”
There was in addition, a further clause in the following terms:
“14.The licensee is to ban any patron who causes any disturbance to the quiet and good order of the neighbourhood and/or who does not comply with any reasonable request by the licensee, his employees, or security personnel relating to the quiet and good order of the neighbourhood.”
Some mileage was sought to be made from the fact that condition 7 applied to “the licensee and his employees” whilst condition 14 referred to requests of the licensee, his employees “or security personnel”. The inference sought to be drawn was that independent security personnel, not being employees of the licensee, were not responsible for the application of condition 7.
There is no reason to draw such an inference, based on tight linguistic analysis, from the formulation of licence conditions. Rather, the appropriate inference as to the duties of security personnel must take account of the general provisions of the Liquor Act 1982 (NSW), pursuant to which a licensee or employee of a licensee has power to “turn out, or cause to be turned out of the licensed premises” an intoxicated person, using “such reasonable degree of force as may be necessary”: Liquor Act, s 103, discussed in Wagstaff v Haslam [2007] NSWCA 28 at [34]-[36]. To similar effect, the licensee is required not to permit “intoxication, or any indecent, violent or quarrelsome conduct on his or her licensed premises”: s 125(1). For the purposes of that section, a person may be asked to leave the premises and the licensee may be required to show that all reasonable steps were taken to prevent intoxication on the premises: s 125(4). Absent any evidence to the contrary (and none was called by the defendants at trial) the trial judge was entitled to infer that the security personnel were contracted by the licensee to ensure his compliance with both his statutory obligations under the Liquor Act and his specific obligations under his licence. So understood, the obligations of the security personnel would have included turning out persons thought to be intoxicated, and those involved in or likely to be involved in violent or quarrelsome conduct. The duties would have included patrolling the area in the vicinity of the hotel to ensure that patrons, not limited to those turned out of the premises, did not cause nuisance or annoyance to the neighbourhood. His Honour made findings to that effect in his judgment at p 14.

The fact that there were some seven or eight security personnel on the footpath in the vicinity of the hotel at the time of the assault, most of whom had no involvement in the assault, suggests that they were indeed at that stage involved in the course of their employment and carrying out duties related to the responsibility of the licensee of the premises, as described above. As his Honour stated at p 14:
“Mr Cooney’s evidence that, prior to the plaintiff being struck, the security guards had been ushering away from the hotel persons who had left the hotel, and the evidence that the person, who identified himself as the manager, told the assembled group they had been asked to leave, is consistent with the security guards having as part of their work at the hotel, the ensuring of compliance with condition 7 and, in particular, moving away from the vicinity of the hotel patrons who had loitered or lingered in the area, after leaving the hotel.”
The next question is to assess the conduct of the assailant in this context. The trial judge accepted evidence that the assailant was the person who had also given Owen Goggins three “big open handed slaps across the back of his head” and had punched Sean Cooney on the left side of his face. Why the assailant selected these three men, without any provocation or misbehaviour on their part is something of a mystery, but the trial judge accepted that there had been no such provocation or misbehaviour and the finding in that respect is favourable to the Appellant. It does not suggest any act of retributive justice, but it may suggest some form of irrational behaviour which could constitute conduct not relevantly connected to his duties as a security guard.
The assault on the plaintiff constituted a single blow, his Honour finding that the plaintiff was “punched with considerable force in the vicinity of his right eye”: Judgment, p 2. How much of an injury was caused by the punch is unclear, because his Honour also accepted that the plaintiff fell “and on the way down his head hit a pole or the back of a motor vehicle”: Judgment, p 6. Whether he was knocked unconscious by the punch or in the fall is not clear. As he did not see the punch coming, he might readily have been knocked off balance. There is no suggestion that the punch which struck Mr Cooney, or the slaps to Mr Goggins’ head involved either of those two persons suffering significant injury. In his evidence in chief, Mr Cooney said that he suffered a black eye, “a touch of bruising there”: Tcpt, 22 June 2006, p 25. He said that he did not lose his balance because he saw the punch coming. Mr Goggins did not give evidence.
There seems to be no doubt that the assailant’s action in relation to each assault was unnecessary and excessive. After the third assault, on the plaintiff, other security officers (or the manager) appear to have taken the same view and took him away from the area. However, his Honour did not accept evidence that two other security personnel had sought to restrain him before he attacked the plaintiff. In addition, the eye witnesses gave evidence that he was “hyped up” and “angry”. Nevertheless, the conversation recounted suggests that his actions were taken in relation to the conduct of the group of men who had been in the hotel, whether misconceived or not. Thus, Mr Cooney gave evidence that, after he slapped Mr Goggins, he said that other security guards had told him (Mr Cooney) to leave and he should do so – in colourful language. The trial judge also accepted evidence that various security guards were “in a bunch abusing” Matthew Weir and suggesting that he was not having an asthma attack but “was a liar, was faking it and could not see the manager”: Judgment at p 4. Whatever the actual conduct of the individuals concerned, there appears to have been a significant level of frustration being exhibited by the security guards as a group, in their attempts to move the men away from the hotel. It is apparent that those attempts had involved the application of some physical force (at least in relation to Mr Weir) and a level of verbal abuse which degenerated into the unjustifiable assaults. Nevertheless, the language used demonstrates that the assailant was seeking to disperse the group and have them move on, albeit in an entirely unacceptable fashion. The fact that he struck not merely the plaintiff, but three persons in a short period, together with the words used, demonstrates that he perceived himself as acting in the interests of his employer and in the performance of his employment duties. The finding of the trial judge demonstrated no error in this respect. The challenge to his Honour’s finding with respect to liability should be rejected.
Damages
The Appellant also challenged the assessment of the plaintiff’s damages in four respects, namely:
(1)          the award of aggravated damages;
(2)          the award of exemplary damages;
(3)          the assessment of future economic loss, and
(4)          the calculation of superannuation based on future economic loss.
The written submissions did not pursue the ground of appeal with respect to aggravated damages, nor was that aspect pursued in oral argument. The award of such damages was entirely consistent with principle and the amount ($10,000) was well within the appropriate range: see State of New South Wales v Ibbett [2005] NSWCA 445 at [84]-[89] and see [259]. However, the other three grounds were pressed.
Exemplary damages
In its written submissions, the Appellant made a “formal” submission that a defendant should not be held liable for exemplary damages in circumstances where it is only vicariously liable for the contumelious act. The submission was said to be formal, in recognition of the binding nature of authority to contrary. Although it was not referred to, that authority, at least in relation to the vicarious liability of the State in relation to the conduct of a police officer, included the unanimous decision of this Court in State of New South Wales v Bryant (2005) 64 NSWLR 281, said on the application for special leave to appeal to the High Court not to be attended by sufficient doubt to warrant a grant of special leave: [2006] HCA Trans 319. Although Bryant turned on the operation of s 8 of the Vicarious Liability Act, a similar principle was established in Gray v Motor Accident Commission (1998) 196 CLR 1 and in Lamb v Cotogno (1987) 164 CLR 1, discussed in Bryant at [24]-[29].
If, as the Appellant conceded, exemplary damages formed part of the available relief, in a claim against the employer, the only distinguishing factor in the present case, as relied upon by the Appellant, was the fact that it was in liquidation by the time of the judgment at trial. That status was said to make an award of exemplary damages inappropriate because there can be no meaningful “punishment” or “deterrence” in respect of a company in liquidation. That proposition was said to be supported by what was said in Lamb v Cotogno, at p 10. However, what appears in the judgment of the Court at that page does not provide support for that proposition; their Honours stated:
“So far as the object of deterrence is concerned, not only does it extend beyond the defendant himself to other like-minded persons, but it also extends generally to conduct of the same reprehensible kind. Whilst an award of exemplary damages against a compulsorily insured motorist may have a limited deterrent effect upon him or upon other motorists also compulsorily insured, the deterrent effect is undiminished for those minded to engage in conduct of a similar nature which does not involve the use of a motor vehicle. Moreover, whilst the smart or sting will obviously not be the same if the defendant does not have to pay an award of exemplary damages, it does serve to mark the court’s condemnation of the defendant’s behaviour and its effect is not entirely to be discounted by the existence of compulsory insurance.”
The challenge to the award of exemplary damages in these circumstances should also be rejected.
Future economic loss
Both at trial, and in this Court, the defendants (including the Appellant) contended that the damages for future economic loss ought to be assessed by way of a “buffer”. The primary judge rejected that submission because he was able to assess a loss calculated at $495 net per week on the basis of the earning capacity of the plaintiff after the accident, as compared with a person in the same employment, not suffering the disabilities of the plaintiff.
The Appellant sought to rely on a statement of Giles JA in Penrith City Council v Parks [2004] NSWCA 201 at [5] where his Honour stated:
“The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.”
It is, however, quite misleading to take this statement out of context and contend that his Honour was suggesting that the only, or even the proper, or even a preferred approach is to calculate an amount by way of a “buffer” in cases where the loss is “difficult to determine”. Were that the case, it would be rare for judges to attempt a more precise calculation of loss, because of the difficulties which usually attend such calculations. Despite that, the normal course is to make as precise a calculation as is reasonable in the circumstances and the ground of challenge on appeal is usually raised where a judge has awarded a buffer in circumstances where the appellant asserts that a more precise calculation was possible or that in truth the plaintiff failed to prove any loss at all. Read in context, Giles JA was not calling into question any aspect of the normal practice, but was stating that it was still open to assess damages by way of a buffer in appropriate cases, despite the terms of s 13 of the Civil Liability Act, which, it had been contended, precluded such an approach.
The trial judge correctly noted that the assessment of damages generally was incapable of mathematical calculation, liable to be uncertain and involved a process of the estimation of possibilities and was properly carried out within broad parameters: see State of New South Wales v Moss (2000) 54 NSWLR 536 at [70]-[71] (Heydon JA).
Otherwise, the Appellant sought to suggest that the differential was too high and that the comparable employee, being a construction plumber, was in a different class of employment. However, this complaint seeks to reject the findings actually made by the trial judge, without valid reason. His Honour stated (Judgment, p 36):
“I am satisfied that the plaintiff was a responsible, hard working young man. … His evidence, which I accept, was that had the assault not occurred it is likely he would have worked as a construction plumber to the end of his working days, eventually setting up a construction plumbing business, earning comparable income to Mr Clinton Carle, whose earning capacity was demonstrated from wage records, however, he is now precluded from this course because he has double vision on his up gaze and cannot now perform work requiring up gaze such as ‘ceiling work’. He now works as a hotel maintenance plumber doing more mundane work, such as replacing washers on hotel taps and repairing toilet systems and doing no work requiring an up gaze.”
His Honour noted that even his role as a domestic plumber was restricted, because he would have difficulty carrying on a business, employing other plumbers, “as his capacity to supervise other plumbers and quote on work requiring up gaze would be severely limited”.
These factual findings were well open to the trial judge, included reliance upon the uncontested evidence as to the comparable earnings of Mr Carle and involved an assessment of the plaintiff himself. No appellable error was identified in his Honour’s approach or conclusion.
Superannuation on future loss
It was not in dispute that the plaintiff had lost an amount on account of superannuation benefits attributable to the loss of earning capacity. Nor was it in dispute that the inclusion of an amount for such loss in an award of damages must equate to the present value of the loss which would only accrue upon him becoming entitled to receive the superannuation payment. The complaints made by the Appellant were that:
(a)the present value should be obtained by applying to the appropriate amount the relevant multiplier based on actuarial tables together with a further discount for early access to a deferred benefit, and
(b)that no amount should have been awarded absent actuarial evidence quantifying the loss.
It is convenient to deal with the second argument first. The requirement for actuarial evidence was sourced to a statement of Handley JA in NSW Insurance Ministerial Corporation v Wynn (1994) Aust Torts Rep ¶81-304, at p 61,740 (col 1) where his Honour stated (with the agreement of Clarke and Sheller JJA):
“The plaintiff has not lost her employer’s superannuation contributions as such because they were never part of her actual earnings. What she lost was the superannuation benefits that she would ultimately have received, but for her injuries, following her normal retirement. See Todorovic v Waller (1981) 150 CLR 402 at 425-427. Any such loss must be reduced to a present value at the date of trial. Proof of these matters normally requires actuarial evidence. The plaintiff made no attempt to prove the present value of her loss of superannuation benefits.”
In Wynn, the error identified on the part of the trial judge was to treat the loss of the employer’s superannuation contribution as part of the plaintiff’s loss of earnings. Furthermore, the claim for loss of superannuation benefits appears to have been based on common circumstances in relation to superannuation prior to the commencement of the Superannuation Guarantee (Administration) Act 1992 (Cth). Nor, in its terms, did that passage seek to lay down more than a normal practice.
As was demonstrated by McColl JA in Ghunaim v Bart [2004] NSWCA 28 at [138]-[146], it was at least common practice for awards of damages to include an amount on account of the employer’s superannuation benefit, without actuarial evidence. Such an approach was justifiable on the basis of the application of a certain and simple ‘rule of thumb’, especially in circumstances where the amount involved would not justify the expense of an expert report. As noted in Todorovic, the merit of “securing uniformity throughout Australia” justifies an arbitrary ruling regarding interest rates of general application: 150 CLR at 423 (Gibbs CJ and Wilson J). In relation to superannuation, the basis for uniformity may now be found in the Superannuation Guarantee Act.
In Roads and Traffic Authority v Cremona [2001] NSWCA 338 Sheller JA (Priestley and Stein JJA agreeing) noted at [91]:
“The High Court decided by a majority that in an action for damages for personal injuries, where there has been a loss of earning capacity which is likely to lead to financial loss in the future, or where the plaintiff’s injuries will make it necessary to expend in the future money for the provision of goods and services for the plaintiff’s health and comfort, the present value of the future loss ought to be quantified by adopting a discount rate of 3 per cent in all cases, subject to any relevant statutory provision. No further allowance should be made for inflation, the future changes in rates of wages or prices, or for tax upon income from investment of the sum awarded.”
It is no doubt arguable that the present value of lost earning capacity must be a sum which will (on the assumption of investment) produce an equivalent to the lost salary in each year of the plaintiff’s working life, so that the fund will be exhausted in the last year. By contrast, the present value of superannuation contributions which will accrue, undiminished, and will attract investment income, until the date at which the entitlement to the fund vests in the plaintiff, might arguably require a different calculation. However, as noted in Cremona, Todorovic held that the discounting exercising should be undertaken to ascertain the present value both in relation to loss of earning capacity and, in a case analogous to the creation of a superannuation fund, the amount required for services, such as medical services, at a fixed date in the future.
It was accepted for the purposes of the appeal, that the employer’s contribution under the Superannuation Guarantee Act was to be calculated as 9% of the gross income and thus 9% of the diminution in gross earnings attributable to the injury: see Waste Recycling & Processing Services of New South Wales v Meafou [2004] NSWCA 462 at [26] (Beazley JA, Bryson JA and Campbell J agreeing). Waste Recycling referred to Thomson v Mybner Pty Ltd [2000] NSWSC 766 at [62]-[63], partly reported at (2000) 31 MVR 335, but not on this point. In that case the quantum of the employer’s contribution was agreed and the present value of the amount so calculated was obtained by applying the discount factor. His Honour then applied a second discount to take account of the deferral of payment for 23 years. It was the failure to adopt the second discount that was the subject of complaint in the present case.
The trial judge took a figure calculated as 9% of the diminution in the gross weekly wage, subject to a further reduction for vicissitudes which had been assessed at 30%. He then applied the relevant 3% discount table to obtain a present value for the future superannuation loss.
The complaint made by the Appellant is that a further discount should have been applied, as in Mybner, being the relevant “deferred table multiplier”. Applying the 3% deferred multiplier for the relevant period (0.299), and retaining the other calculations undertaken by the trial judge, the result was said to be an amount of $13,992, in place of the $46,380 in fact awarded. (At the trial a slightly different figure was calculated, giving a figure of $14,239.)
The Respondent resisted the further discount on the basis that the calculation of a fund based on 9% of gross salary loss not only left out of the assessment likely earnings on the money as invested, but also ignored the favourable tax treatment accorded to those investments. In those circumstances, it was submitted that a further reduction on account of deferred payment was either unnecessary or inappropriate.
In Jongen v CSR Limited [1992] Aust Torts Rep ¶81-192 (WASC), Anderson J sought to adopt a similar approach to that set out above. After referring to a calculation pursued by the defendant, involving a more sophisticated approach, he asked:
“Or should the courts take the simple approach preferred by the plaintiff in this case, that is, to look at only the employer’s contribution to the fund and to look at it simply as an addition to the plaintiff’s salary, taxable at a concessional rate. I think the latter approach is the preferable approach.”
He stated that this approach did not allow for any increase in salary or earnings of the fund. He held that taxation was to be taken into account, including the possibility of the imposition of income tax on funds paid from the scheme, the costs of administering the scheme and the possibility of loss through unfortunate investments, as justifying a discount of 30% on the gross figure. That approach has not been adopted in this State, so far as the Court is aware, and was not proposed in the present case. The present value of the fund, as calculated by Anderson J, was achieved by the application of the 6% discount multiplier prescribed under WA law. There was no suggestion that some further discount should have been adopted on account of early receipt of the benefits. Indeed, such an approach would involve a level of double-discounting, because the deferred table multiplier should be applied to the fund which should be available at the end of the plaintiff’s working life, not the present value of that fund.

At least in this Court, the correct approach must be derived, if possible, from Todorovic v Waller, a decision of the High Court dealing expressly with damages on account of lost superannuation. The first question is to seek to establish the amount of superannuation lost on account of the loss of earning capacity caused by the defendant’s tortious conduct. That is to be identified as a fund notionally created by applying a figure of 9% to the gross weekly earnings of the plaintiff. The fund so created consists entirely of employer’s contributions, calculated on the lost income. In discounting the amount receivable to give a present value, no allowance is to be made for inflation, for income on the investment or for tax on that income or on the benefit anticipated, in accordance with the principles in Todorovic. The fact that the contributions are required to be invested does not appear to be a significant difference. The fact that the income and payments are subject to a favourable tax regime, might suggest that an approach more beneficial for the plaintiff would be appropriate. However, that was not directly in issue in the present case. What is in issue is whether some additional discounting is required because the amount is received now, rather than at some stage in the future. However, in considering lost superannuation in Todorovic, there was no suggestion that such an additional discount should be undertaken. By analogy with a lump sum payment now for payment for services to be received at a future date, which was subject to the same general regime in Todorovic, no such additional discounting should be applied.
As is well-established, the fact that calculations of future loss are both imprecise and to an extent speculative, justifies a conventional approach which does not require sophisticated actuarial evidence. That principle is not in issue in the present case. What is in issue is one of the factors which should, on one approach, be separately identified and, on the other, be subsumed within the simple calculation proposed. Authorities in which the issue has been discussed, rather than assumed, support the proposition that the employer’s contribution should be treated as giving rise to a fund payable on a future date, which must be discounted according to the 3% tables so as to provide a net present value for that sum. That was the approach adopted by the trial judge. Accordingly, the challenge based upon the proposition that there should have been a further discounting, should be rejected.
Conclusions
I would dismiss the appeal and order the Appellant to pay the Respondent’s costs of the appeal.
CAMPBELL JA: I have arrived at the same conclusion as Basten JA concerning the allowance for loss of the value of the employer’s future contributions to superannuation benefits. However I have arrived there by a different route, and so will give my own reasons concerning that topic.
The Trial Judge’s Methodology
The trial judge indicated, in his reasons for judgment, the method that he regarded as appropriate for calculation of damages for loss of the employer’s contribution to future superannuation benefits, and left it to the parties to make the calculation. He entered judgment in accordance with that calculation. If one spells out the way in which that calculation proceeds, it involves the following steps.
First, there was an implicit assumption (not shown to be wrong on this appeal) that the type of superannuation benefit that the plaintiff would have been likely to receive upon retirement, had he remained uninjured and in employment, was a benefit calculated by reference to the accumulation of contributions paid into a superannuation fund on the employee's behalf. An accumulation fund is different to the type of fund considered in Todorovic v Waller (1981) 150 CLR 402, which concerned a defined benefits fund from which the employee receives upon retirement a defined benefit calculated other than by reference to the accumulation of contributions – in Todorovic, the fund in question provided a pension calculated at a particular percentage of the final salary of the employee.
The trial judge took into account the legal obligation of an employer under the Superannuation Guarantee (Administration) Act 1992 (Cth) to pay superannuation contributions on behalf of an employee at the rate, after the 2002/2003 tax year, of 9% of the employee’s gross ordinary time earnings. The trial judge assessed the gross wage loss of the plaintiff due to the injury as being, at the date of trial, $600 per week. He took 9% of that sum ($54) as being the amount per week of employer's contributions to superannuation that the employee had lost by reason of his injury. He had held earlier in his judgment, in connection with assessment of damages for future loss arising from loss of earning capacity, that a discount of 30% for vicissitudes of life was appropriate for this particular plaintiff. This was because there was a chance that the plaintiff would be able to earn more income than he presently anticipated, and because the plaintiff was a young man, so that there was special uncertainty in making predictions involving the whole of his likely future earning career. The trial judge adopted that discount of 30% as also appropriate to apply in calculating the loss concerning employer contributions to future superannuation benefits. Applying that discount to the weekly sum of $54 resulted in a figure of $37.80 per week. He noted that the plaintiff was aged 24, and hence had 40.3 years until his ordinary retirement date. He consulted the 3% discount tables, and found that the appropriate multiplier for 40.3 years was 1227. He then multiplied the sum of $37.80 per week by 1227, and thereby arrived a figure of $46,380.60 as the quantum of the amount to be allowed for the loss of superannuation benefits.
The 3% tables that the trial judge used in calculating the amount to be allowed for loss of the superannuation benefits are tables that calculate the present value of a series of weekly payments of one dollar for various numbers of years, at a 3% rate of compound interest, with no allowance for mortality. A sample of such a table can be found in Luntz, Assessment of Damages for Personal Injury and Death, 4th edition, page 683. The numbers contained in such tables were described by Gibbs CJ and Wilson J in Todorovic at 414 as showing “the sum which, if invested at the discount rate, would suffice to enable periodic drawings of the given amount to be made from income and capital over the given number of years, so that at the end of that period both capital and income would be exhausted." They are, thus, well-suited to ascertaining the capital sum that is needed to replace a particular periodical loss of income over a number of years.
The Appellant’s Submission
The appellant in the present case submitted, in substance, that we should follow completely the methodology that the trial judge adopted, but then take an additional step. It submitted that, having arrived at the figure of $46,380.60, we should apply the “deferred table multiplier” to it to ascertain the present value of that sum.
A “deferred table multiplier” is ascertained from a table like that to be found in Luntz, Assessment of Damages for Personal Injury and Death, 4th edition, page 681. It shows the present value of a single payment of $1 in various numbers of years time, at various rates of compound interest, with no allowance for mortality. The deferred table multiplier that the appellant submitted we should adopt, of 0.299, reflects the fact that 0.299 cents, invested at 3% compound for 40.3 years, will at the end of that 40.3 years produce $1.00. Multiplying $46,380 by 0.299 results in the sum of $13,867.80. (The actual figure for which the appellant contended was $13,992 – the difference results from an immaterial difference between the figure of the plaintiff’s age that the trial judge used and the figure for the plaintiff’s age that the appellant used.)
An Answer from Todorovic?
I do not derive any assistance, in the present case, from the precise way in which the value of the future superannuation benefits was calculated in Todorovic. The superannuation benefits there in question took the form of a pension. Contributions had been made to the pension fund before the plaintiff in that case suffered the accident that led to the litigation, and, had he not been injured, those pre-accident contributions would be part of the reason why he would ultimately have been entitled to a pension on retirement. The trial judge had found the amount of the annual pension that the plaintiff was likely to have received if he had not been injured (70½% of $16,306 per annum), when it would start to be paid, the likely expectation of life of the plaintiff after the start of the pension (12⅓ years), and had held that a 33⅓% deduction on account of vicissitudes was appropriate. The plaintiff in that case had received from the superannuation fund an amount of $5,726, being a sum related to the contributions that had actually been paid into the superannuation fund before the accident. The calculation the High Court adopted for loss of superannuation benefits was stated by Gibbs CJ and Wilson J at 426, as being:
"… the present lump sum equivalent in value to the loss of a superannuation benefit of 70 ½ per cent of $16,306 per annum for a period of twelve and one-third years, at a discount rate of 3 per cent, is $39,250. When a deduction of 33⅓ per cent is made the resulting figure is $26,170. After deducting the $5,726 actually received the loss under this head of damage is seen to be $20,444."
Aickin J agreed with the reasons of Gibbs CJ and Wilson J (460). Mason J at 451 agreed with the orders that Gibbs CJ and Wilson JJ proposed, without any discussion of the principle that underlay them. Brennan J at 481 evidently accepted the reasoning of Gibbs CJ and Wilson J on this topic.
While the specific type of 3% discount that was used in Todorovic is not stated, it seems likely, from the process of reasoning, that it was a discounting to present value of the instalments of pension payable some years in the future. In the present case the superannuation benefit that is assumed to be payable to the plaintiff is not a pension, and the trial judge has not proceeded by finding what is the amount that would be the lump sum payment from the superannuation fund. Thus it is not possible in the present case to use the type of discount tables that reduces to a present value a sum that is payable, or a series of sums like a pension that are payable, in the future.
An answer in the present case needs to be sought at a more general level of principle.
Calculating Future Superannuation Benefits Accurately?
In principle, assessment of damages for loss of employer contributions to future superannuation benefits involves ascertaining the amount of money that, paid to the plaintiff at the date of trial, compensates him for that loss by providing the present value of the superannuation benefits that he has thereby lost. If one were to seek to calculate accurately the present value of loss of superannuation entitlements that a particular plaintiff has suffered, it would be necessary to take the following factors into account:
(1)The extent to which, at the time of trial, the plaintiff is shown to have suffered a loss of gross wages per week by reason of the injuries sustained;
(2)The prospect that the vicissitudes of life will be such that the plaintiff might not be employed continuously until retirement, or might not be able to continue to earn at the same rate of earning that the judge decides he would have had, if uninjured, at the date of the trial;
(3)At present, an employer is required to pay 9% of the gross wages of an employee to a complying superannuation fund;
(4)The likelihood of the employer claiming a tax deduction for its contributions to the superannuation fund, thereby making those contributions deductible contributions;
(5)At present, tax is payable by the superannuation fund on deductible contributions made to it at the rate of 15% of those contributions. That tax is levied only once, in the tax year in which the contributions were made;
(6)There is a prospect that, had the plaintiff remained uninjured, his wages (as measured in dollars of the day) would have increased over the years, and hence that the employer's contribution at the rate of 9% of his ordinary time earnings would have increased over the years;
(7)At present, the taxable income derived by a superannuation fund from investment of accumulated benefits in the fund is taxed at 15% in the tax year in which that income is derived;
(8)At present, the taxation law does not levy tax on the whole of a capital gain that has been realised from investments. Imputation credits on dividends can result in a taxpayer (including a superannuation fund) reducing the rate of tax that is, in practical terms, paid on dividends received to a rate less than that taxpayer’s usual or marginal rate of tax. Depending upon the investment policy of the particular superannuation fund, these factors may result in the income tax paid on investment earnings of the superannuation fund being at an effective rate of less than 15%;
(9)In the past, there have been taxes payable on some payments of benefits from superannuation funds. It was announced in the May 2006 Commonwealth budget that those taxes would be significantly altered, with some being abolished. (It does not matter, for the purpose of this judgment, how far implementation of that announcement by legislation has proceeded);
(10)There is a prospect that inflation will in the future affect the value of money. The experience of recent decades in Australia shows that rates of inflation can vary widely. The rate of inflation at a particular time has an effect on both levels of wages, and on investment returns. Other causes of increases in the wages of the plaintiff might include increases due to promotion, or due to a general increase in the level of real wages (ie increases in the level of wages not attributable to inflation) in the community;
(11)The amount that the plaintiff ultimately receives by way of superannuation will depend upon the rate of return that the superannuation fund is able to achieve, from year to year, from investment of its capital. This will depend to some extent upon the particular investment policy that the fund adopts, and to some extent upon more general economic conditions;
(12)Depending upon the investment policy of the superannuation fund in question, its investment returns might exceed, or might be less than, the rate of inflation;
(13)Some charges and expenses are involved in running a superannuation fund. The proportion of gross earnings of the fund consumed by charges and expenses differs between funds;
(14)There is a possibility that the present tax treatment of superannuation funds might alter, possibly more than once, in the period between the date of trial and the date when, had he not been injured, the plaintiff would have been entitled to receive payment of superannuation;
(15)Any sum that the plaintiff receives now, to compensate him for the loss of the lump sum of superannuation that he would have received upon retirement, needs to be discounted to present value, to take account of the fact that it is received now rather than at a date in the future.
I do not suggest that this list is a totally exhaustive one, nor that, in so far as it mentions a factor, it does anything other than give a very broad-brush indication of what is involved in that factor. However, even this list shows that it is impossible to make an accurate calculation of a sum of money that achieves the principle upon which damages for loss of the employer’s contribution to future superannuation benefits are awarded. There are simply too many unpredictable future factors. Even an actuarial calculation will proceed by making assumptions about some of the factors involved in the calculation.
Justification for Approximate Assessment
There is authority that sometimes a court, in the course of making an assessment of damages or compensation, adopts a figure which is little more than a guess, in circumstances where the evidentiary basis for adopting a particular figure is very thin, but where it would be wrong to use the thinness of the evidence as a reason for valuing that head of damages or item of compensation at zero: Jones v Schiffmann (1971) 124 CLR 303 at 308 per Menzies J; The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83 per Mason CJ and Dawson J, 102 per Brennan J, 118–119 per Deane J, 138 per Toohey J; University of Newcastle and Others v Audio-Visual Copyright Society Ltd (1999) 43 IPR 505; Copyright Agency Ltd v Department of Education of New South Wales (1985) 4 IPR 5; 59 ALR 172 at 183.
In particular, damages for loss of the value of an employer’s contributions to future superannuation are just one aspect of damages for loss of future earning capacity, a topic concerning which it is well recognised that damages are at large, and able to be awarded on the basis of thin or less than compelling materials: Paul v Rendell (1981) 55 ALJR 371 at 376 per Lord Diplock; Linsell v Robson [1976] 1 NSWLR 249 at 259 per Mahoney JA; Todorovic v Waller (1981) 150 CLR 402 at 421, 449, 457-460, 464, 466; Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570 per Lloyd LJ; State of New South Wales v Moss(2000) 54 NSWLR 536 at 552-559, [70]–[87] per Heydon JA (with whom Mason P at 543, [27] and Handley JA at 548, [52] agreed on this point) and cases there cited; Cowra Shire Council v Trudgett [2004] NSWCA 9 at [22] per Palmer J ( with whom Meagher and Hodgson JJA agreed).
The use of the word "guess" in some of these authorities should not be taken as detracting from the obligation of the judge to adopt a reasoning process that has a rational basis, to the extent that the evidence presented, and the intrinsic nature of the materials and subject matter under consideration, permit. In its ordinary meaning, “guess” can extend to picking a number at random, and no judge is justified in guessing, in that sense, in assessing damages. Rather, the word "guess" in these authorities recognises that sometimes such reasoning as is possible in the circumstances is far from compelling, and human beings have not been granted omniscience, but must make decisions on the basis of such incomplete knowledge as they have.
In Ghunaim v Bart (2004) Aust Torts Reports 65,451, [2004] NSWCA 28 at [140]–[144] McColl JA collected clear empirical evidence that courts actually make awards of damages on this head of damage without always requiring actuarial evidence. The inevitability of approximation in assessing this head of damages, the fact that even an actuarial assessment involves making assumptions about many of the important factors that affect the amount the plaintiff would actually have received if he or she had not been injured, and the coming into operation of the obligation on employers under the Superannuation Guarantee (Administration) Act 1992 (Cth) to pay a fixed minimum amount of contribution towards an employee's superannuation, provide a justification of principle for damages on this head to be awarded without actuarial evidence in appropriate cases.
The methodology that the trial judge adopted in the present case used a rough rule of thumb for calculating damages for loss of superannuation benefits. But, given the impossibility of achieving anything other than an estimate of this head of damages, that is not in itself enough to show that the trial judge erred.
A Test Calculation
So far I have been considering the present problem at a fairly high level of generality. Some appreciation of the difficulties involved in assessing quantum for this head of damages can be gained by seeking to find a principled basis, different to that used by the trial judge, for assessment of the quantum, and trying to work through the arithmetic involved in its application. One such method is to take the plaintiff’s loss of $600 gross per week, calculate the employer contributions on it at 9% ($54), and deduct a further 15% from that to arrive at the sum that, after tax, the superannuation fund has available to invest. That amount available for investment is $45.90 per week. That amount should also, for this particular plaintiff, be reduced by a further 30%, to reflect the judge’s allowance for vicissitudes. The amount so reduced is $32.13 per week. If one ignored all wage increases, inflation, earnings on the fund, tax on income of the fund, other costs of operation of the fund, tax on payments out of the fund and the possibility of legislative change affecting the amount of superannuation benefits, the quantum of the fund at retirement date could be calculated as being equal to the total contributions to the fund available for investment over the remaining working life of the plaintiff. The 40.3 years of working life that he had left amount to 2095.6 weeks (assuming, for simplicity, that there are 52 weeks in each year). Total gross after-tax contributions to the fund would therefore be $32.13 x 2,095.6 = $67,331.63. If that amount were to be reduced to a present value using the 3% deferred table multiplier of .299, the resulting figure is $20,132.16.

A serious deficiency in the method I have just outlined is that it would be grossly unfair to the plaintiff to assume that there were no earnings on contributions to the fund, but that the sum ascertained by adding up the contributions should be reduced to a present value using the deferred table multiplier. After all, the rationale for using a deferred table multiplier to reduce a future sum to a present value is that the lump sum paid now is likely to have the capacity to grow through investment – it would be unfair to assume no earnings on the contributions in the fund, but earnings on the notional investment of the lump sum of damages. But if one tried to factor in an estimate for earnings of the fund, even a net rate of earning on the fund of 3% per annum would offset to some extent the discounting that is involved in applying the 3% deferred table multiplier to a lump sum assumed to be available from the fund at the plaintiff’s date of retirement. It would not offset that discounting completely, because the fund’s earnings are on its balance from time to time, an amount that increases gradually as a result of weekly contributions being made to it and investment income being earned, while the discounting involved in using the deferred table multiplier is applied to the total final balance of the fund. But it would result in a calculable figure for the plaintiff’s loss lying between $20,132.16 and $67,331.63.
If a rate of earning greater than 3% was assumed, the figure would be correspondingly greater. In the present investment climate, a superannuation fund that did not achieve net returns of more than 3% would be performing deplorably – but that is not necessarily a sufficient basis for predicting a rate of return over the 40.3 years of the plaintiff’s working life that remain.
I make clear that I am not suggesting that the different method that I have just worked through is superior to the method that the trial judge adopted. Indeed, it requires the making of many assumptions that might or might not be appropriate. Clearly it is not the only alternative method of arriving at a quantum that might be devised.
That it incorporates a rate of tax, as part of the calculation, may be a particular problem, given the propensity of tax regimes to change. In Todorovic the judges forming the majority of the High Court expressed a disinclination to take into account specific tax rates, current at the date of trial, in calculating damages for loss of earning capacity. Rather, they took the view that notional tax payable on the notional fund arising from payment of the damages should be taken into account only in a broad way, in fixing the appropriate discount rate: per Gibbs CJ and Wilson J (with whom Aickin J agreed) at 423, Mason J at 449, Brennan J at 476-477. (Stephen and Murphy JJ dissented, regarding a nil discount rate as the appropriate one.) That approach of the majority in Todorovic may well be a sufficient reason why, quite apart from its other difficulties, this test calculation could never be adopted as a preferred method of calculation. As well, its methodology is contrary to the decision of this Court in Waste Recycling & Processing Services of New South Wales & Anor v Meafou & Ors [2004] NSWCA 462 in so far as it involves ascertainment of future earnings of the fund (see paras [100]-[103] below). I set it out to illustrate the type of practical difficulties involved in seeking to arrive at a quantum for this head of damage.
Comparison of the Methodologies of the Appellant and the Trial Judge
The methodology that the appellant submits we should adopt has one attraction, in that it recognises the correctness in principle of discounting the amount calculated to be in the fund at the date of retirement to ascertain a present value. But the appellant’s methodology has a serious flaw, in that the figure it urges we adopt for the amount likely to be in the fund at the date of retirement is ascertained by a methodology that comes nowhere near taking into account all the elements that would be involved in an accurate calculation of the amount likely to be in the fund at the date of retirement. It is giving a false impression of accurateness to apply a discount factor precise to thee decimal places to a starting figure that is itself little more than a judicial estimate. For the reasons I have earlier given, accurate calculation of that starting figure is in principle impossible.
Further, and most importantly, the figure to which the appellant urges we apply the discount is the trial judge’s judicial estimate, not of what amount will be in the fund at the time of retirement, but of the present value of the employer’s contributions to superannuation that the plaintiff has lost.
The trial judge’s use of the particular 3% tables that he used had the effect that he provided the sum of money that, if invested at 3% per annum, would be capable of making weekly payments towards superannuation, for the whole of the rest of the plaintiff’s working life, that equal the weekly payments towards superannuation that the employer would have made. Thus, by providing the plaintiff with the sum of $46,380.60, the trial judge has enabled the plaintiff to make payments himself into a superannuation fund, at the same rate that, had he not been injured, the employer would have made. That can be seen as a way of putting the plaintiff into the same position as he would have been in if he had not been injured, so far as employer’s contributions to superannuation are concerned. When that is the sum that the trial judge’s method sought to estimate, it already is a present value, and so does not need any further discounting to bring it back to present value.
That the trial judge's methodology can be explained in this way shows that it has a rational basis, and to that extent meets the standards for judicial decision-making.
The position into which the plaintiff is put under the trial judge's methodology is not in all respects identical to that in which he would be if employer contributions of the same amount had been made on his behalf. One reason is because he is free to use his damages award however he pleases, and there is no obligation on him to use it to provide a means of paying future superannuation contributions. But it is a common feature of all awards of damages for personal injury that the plaintiff is not obliged to use the award to acquire the items of services that provide the means of quantifying the award. Another reason is because, even if he chooses to use it as a means of paying future superannuation contributions, he may well not be entitled to claim a tax deduction in consequence of making the payment into the superannuation fund, and hence the payment into the fund is not an “undeducted contribution”, and hence the fund will not (under the present tax regime) pay the concessional rate of tax of 15% on receipt of it. However, both the fact that there are already so many approximations involved in this method of assessment, and the disinclination of the judges in the majority in Todorovic to take specific tax rates into account, lead me to conclude that this fact does not show that the method that the trial judge adopted is wrong.
Conclusion
That accurate calculation of the amount likely to be in the superannuation fund on retirement is in principle impossible does not mean that there may not be reasons for finding that one methodology for estimation is superior to another. When the loss of the employer’s contributions to superannuation benefits is a real loss that an injured plaintiff has suffered, courts have to make as good an attempt as is possible, on the evidence and argument available, to provide a sum of money that compensates for it.
That the trial judge's methodology has a rational basis means only that it meets the minimum standards for judicial decision-making. It well may be that there are other methodologies that also have a rational basis, and it may be that one or other of these other methodologies is, upon examination, preferable to the one that the trial judge adopted. The methodology that the appellant advocated in the present case is not, however, preferable to the trial judge's methodology. The argument on this appeal has not put me in a position to make any decision about which method for estimating damages for loss of employer’s contributions to superannuation benefits is most preferable. That is not to say that more extensive evidence and argument, in another case, might not enable a decision to be made.
That leaves me in a situation where I am not persuaded that the figure at which the trial judge arrived is wrong. Before an appeal is upheld, the Court of Appeal needs to be satisfied that the trial judge was in error: Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ; Williams v The Minister Aboriginal Land Rights Act 1983 and The State of New South Wales(2000) Aust Torts Reports 81-578, [2000] NSWCA 255 64,148, at [60] per Heydon JA (with whom Spigelman CJ and Sheller JA agreed); Fox v Percy (2003) 214 CLR 118 at 127-128, [27]; Allesch v Maunz (2000) 203 CLR 172 at 180-181, [23]; Branir Pty Ltd and Others v Owston Nominees (No 2) Pty Ltd and Another (2001) 117 FCR 424 at 435-436, [21]-[25]; and Jovic v Lamont [2007] NSWCA 47 at [60]. Thus, I would not uphold the appeal concerning the allowance for superannuation benefits.
I do not regard the decision of this Court in Waste Recycling & Processing Services of New South Wales & Anor v Meafou & Ors [2004] NSWCA 462 as standing in the way of this conclusion. As appears from [36] of that judgment, the issue in that case was whether the plaintiff was entitled to both employer contributions, and earnings on the fund. It is that claim that the Court in Meafou rejected.
Bryson JA at [57] of Meafou said:
"Assessment of the present value of the lost stream of employer contributions does better justice than disallowing claims which are not supported by actuarial evidence about likely future values of accumulating funds, itself a highly indeterminate subject."
It was by assessment of the present value of the lost stream of employer contributions that the trial judge had proceeded in Meafou. That is in substance the same method as the trial judge has used in this case.
The mention of Thomson v Mybner Pty Limited (2000) 31 MVR 335; [2000] NSWSC 766 in [35] of Meafou was not, it seems to me, part of the ratio decidendi of Meafou. As Mybner was a case involving assessment of damages arising from a motor vehicle accident, concerning which there have been from time to time special statutory regimes for damages, and as it was not argued in the case before us, I refrain from expressing any view about whether Mybner was correctly decided.
I agree with the reasons of Basten JA on other topics in this appeal, and with the orders he proposes.

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