CATCHWORDS Assessment of damages - personal injury - loss of earning capacity of sixteen year old schoolboy - review of complex evidence - no question of principle. RONALD GERWIEN v. ANTHONY GEORGE ARCUS by his next friend BENITO LAZAREVICH ARCUS No. A.C.T. G 66 of 1983 Coram: Gallop, Sheppard and Neaves JJ. Date: 29 February 1984. Canberra IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. A.C.T. G 66 of 1983 GENERAL DIVISION On Appeal from the Supreme Court of the Australian Capital Territory BETWEEN RONALD GERWIEN Appellant AND ANTHONY GEORGE ARCUS by his next friend BENITO LAZAREVICH ARCUS Respondent ORDER JUDGES MAKING ORDER Gallop, Sheppard and Neaves JJ. DATE OF ORDER 29 February 1984. WHERE MADE Canberra THE COURT ORDERS THAT : 1. The appeal be allowed. 2. The Judgment of the Supreme Court of the Australian Capital Territory be varied by substituting for the amount of the Judgment the sum of $257,483.90. 3. The respondent pay the appellant's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G66 of 1983 DISTRICT REGISTRY eww SS SS GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: RONALD GERWIEN Appellant AND: ANTHONY GEORGE ARCUS by his next friend BENITO LAZAREVICH ARCUS Respondent CORAM: Gallop, Sheppard and Neaves JJ. REASONS FOR JUDGMENT GALLOP J. 29 February 1984 This 1S an appeal from a Judgment of the Supreme Court of the Australian Capital Territory awarding to the Plaintiff damages in the sum of $289,763.90 for personal injuries sustained in a motor vehicle accident on 16 October 1978. Liability in the action was not in issue and the trial was limited to the assessment of damages. The appeal to this court is by way of rehearing of the assessment of damages. Before this court interferes with the award of damages 1t should be satisfied that the trial judge acted on a wrong principle of law or misapprehended the facts or, for these or for other reasons, made a wholly erroneous estimate of the damage suffered. It iS not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere either on the ground of excess or insufficiency (Davies v. Duffryn Associated Collieries Limited [1942] AC 601 per Lord Wright at p.616-7, cited with approval by Dixon CJ and Kitto J. in their joint judgment in Miller v. Jennings (1954) 92 C.L.R. 190 at 195-6, and by Barwick CJ in Gamser v. The Nominal Defendant (1976-77) 136 C.L.R. 145 at 148). In his reasons for judgment the trial judge set out at length an account of the respondent's injuries, course of treatment and recovery and residual disabilities. He quoted passages of evidence from the various witnesses without actually stating that he accepted that evidence, but it is implicit in his Honour's reasons that he accepted the evidence as the basis upon which he had assessed the damages. No evidence was called at the trial on behalf of the appellant. It is convenient, however, to set out the significant matters as disclosed by the evidence. ' The plaintiff was born on 5 February 1962. The accldent occurred on 16 October 1978. The plaintiff was then aged 16 and was travelling as a passenger in a motor vehicle driven by his uncle and involved in a head on collision. The injuries sustained by the plaintiff were a severe head injury with frontal lobe damage and left hemispheric damage resulting in a right hemiplegia and aphasia (loss of speech). He also suffered a slight laceration divergence to the right eye. Severe cerebral contusions caused deterioration of blood supply to the brain. He was taken to Royal Canberra Hospital in an' unconscious state and was placed under the care of Dr R.L. Newcombe, Neurosurgeon. He was also treated by Dr Farnbach. He did not regain consciousness until 1 week after his admission. The right hemiplegia became progressively more dense and serial CAT scans showed probable evidence of cerebral oedema. Although a carotid arteriogram showed a fully vascular tree, the plaintiff remained "aphasic". He was released from hospital on 24 November 1978 into the care of his parents. On 7 December 1978 Dr Newcombe referred him to Dr Burniston, Consultant Physician in Sydney, who in turn referred him to the Woden Valley Hospital Rehabilitation Unit under the direction of Dr Farnbach. At that time he was walking with a strange gait, leaning towards his right side. He could not perform any fine tasks such as picking up a small object. The right hand needed help from the left hand to pick things up. He had to learn every task of normal living again. He had to be reminded to shower, not to slouch at the table, he had difficulty handling eating implements, he had to be reminded to go to the toilet, to go to bed, to brush his teeth and to dress. There was slow improvement. He regained his speech but was not interested in any particular activity and had to be encouraged to do and interest himself in tasks. He could not be left on his own. By January 1979 he was +e discharged from the Rehabilitation Unit; he returned home and recommenced school. By this time his condition had improved markedly, although he was still limping and had a speech defect. He was suffering headaches daily. When he returned to school he had difficulty concentrating for long periods. He said in evidence that his friends at school, whom he used to know, avoided him. He fell seriously behind in his work. Many behavioural changes were evident in early 1979. He frequently became moody, began using foul language, was irritable and aggressive with his siblings, sexually disinhibited towards his mother, and ran away from home on a number of occasions causing his parents to summon the police to help locate him. He suffered from an inability to sleep at night. On 2 April 1979 his mother found him in bed with a superficial laceration to the wrist. Dr Andrews was summoned and the plaintiff was admitted to the Royal Canberra Hospital. On 12 April he was discharged and he then spent 5 days at home before being readmitted at Easter time. He was diagnosed by Dr Hughson as suffering from post traumatic epilepsy with significant personality changes and in particular diminished judgment, poor control of his moods, marked tendency towards aggressiveness directed elther towards himself or the family and occasionally others. Dr Hughson expressed the opinion that these personality changes resulted from the head and brain injuries. On 17 April he had been transferred to Calvary Hospital under Dr Hughson''s care. He resented being there and was fairly aggressive. He was released on 1 May 1979 still depressed, suffering from frequent headaches, being aggressive and he spoke frequently of slashing his wrists. On Mothers! Day 1979 the family had planned an outing at the Queanbeyan Leagues Club. They had to queue up to get in. The plaintiff became very impatient as well as aggressive and depressed, so the family decided to go home and celebrate Mothers' Day at home. They went to the car to go home. Having entered it the plaintiff suddenly opened the door, ran off and was finally found in a back alley. When he saw his family he tried to run away and did some damage to his hands trying to climb some barbed wire. When he was finally persuaded to come back to the family car he quietened down for a while, but later tried to throw himself out of the car while 1t was moving. When they got home he was first inside the house, grabbed a pair of scissors and tried to stab himself. He was unsuccessful. The family arranged for him to be readmitted to the psychiatric unit at the Woden Valley Hospital under the care of Dr Tennant, Psychiatrist. He was discharged on 15 June 1979 and transferred to the Royal Canberra Hospital under the care of Dr Danta. On several occasions he ran away from hospital and was found at his parents' home and returned to the hospital. During this period he made another attempt to slash his wrists. He was discharged on 13 July 1979 only to be readmitted on 20 July 1979 after an incident in which he physically attacked his father and "nearly strangulated him". Tests conducted by Dr Danta showed moderate impairment of: frontal lobe function, impaired ability to withstand distraction, rather poor impulse control, difficulty in maintaining a sequence of responses and difficulty in retaining information. Eventually he was referred to Dr John Smith at the Neuropsychiatric Institute at the Prince Henry Hospital, Sydney. He remained there from 25 July to 29 November 1979. Whilst there he was mostly co-operative and passive, although he was observed to suffer a number of rage attacks. These attacks were related to organic personality changes caused by the subject accident. The violence was extreme on occasions. Dr Smith gave evidence of the Plaintiff tipping other patients out of bed, absconding on several occasions and returning to hospital drunk. He was admitted to a rehabilitation programme at Queen Elizabeth II Rehabilitation Centre but was dismissed after he attempted to gash himself with scissors in a fit of anger. There followed several further instances of self-mutilation and instances of aggression towards fellow patients. Dr Smith expressed the opinion that despite these problems the plaintiff derived considerable benefit from his admission to the Neuropsychiatric Institute. He said that the plaintiff came to some understanding of the nature of his disabilities and learned techniques to avoid exploding into a rage. After his return to Canberra on 29 November 1979 the plaintiff was fitter and brighter, was able to communicate his depression and anxieties better and was less violent. He returned to live in the family home. However, following an incident on Christmas Eve 1979 in which he attacked and assaulted his mother, he moved out of the family home and into a Government flat in Lyons to live by himself. He was developing an ability to control his violent outbursts, although there followed one further incident in which he attacked his younger brother. The move to the flat gave him the opportunity of learning to live independently. During that time he received financial support from his parents in the form of provision of groceries, shoes and clothing, and in the consolidation of some of his debts. On 29 April 1980 he made another attempt at suicide following an overdose of medication he was receiving for his epilepsy. He was admitted to Royal Canberra Hospital and discharged on 2 May 1980. Following his discharge from Prince Henry Hospital Sydney 1n November 1979 he did some work as a voluntary nurses' aid at Woden Valley Hospital. In 1980 he did similar work at the Kambah Health Centre and later at the Phillip Health Centre. He expressed in evidence the formation of a strong interest in nursing while in hospital in Sydney as a means of assisting people in a similar predicament to himself. In August 1980 he worked for a month in a paid Capacity at Marymead Children's Centre. Although he enjoyed this work, he voluntarily terminated the employment to take up a position in the Australian Public Service following the success of his application. He commenced on 20 October 1980 in the Department of the Capital Territory as a Clerical Assistant Grade 1. The work involved emptying ticket boxes on buses, emptying fare boxes and putting the money through a money counting machine. He was unhappy with this position and regarded it as menial work and below him. In April 1981 he transferred to the Department of Defence as a Clerical Assistant Grade 1. For a few months he was content in that position and began feeling depressed and resentful towards his fellow workers who, he believed, were making fun of him. On 28 January 1982 he was promoted to the position of Clerical Assistant Grade 2 in the Records Section of the Department of Defence. His duties consisted mainly of filing and photocopying. On 25 January 1983 he was appointed to the acting position of Clerical Assistant Grade 3 in the Computing Services Division of the Department of Defence and he was currently occupying that position at the date of trial. He said in evidence that he was very depressed and unhappy 1n his work environment. He said he had the intention of eventually moving into the Third Division as a Clerk, either by obtaining his Higher School Certificate or by pasSing an examination at the end of his 5th year of service as a Clerical Assistant. To this end, he began night classes at the Technical and Further Education College, Reid at the beginning of 1980. He left after only 1 or 2 months because of inability to concentrate. In 1981 he attended evening classes at Stirling College with a view to obtaining his Higher School Certificate. He attended for most of the year but obtained poor resuits. He gave evidence of his progress at Stirling College as follows: "Did you think you were doing fairly well in the beginning of 1981 at the ACT style school at Stirling College? Yes, I thought I was because I was getting all my assignments in. I felt I was understanding things. I thought I was starting to remember a few things that I was doing before the accident. Then my concentration started going, was shot to Pieces. I would sit through half a class. Things would be okay, and then after that my headaches would take over. As the pressure got harder the headaches got worse. I just had to stop, you know. The pressure was just too much. That always happens any time anything starts pressuring me. I have just got to stop, it 1S too much." In 1982 he again commenced the same course but abandoned it after a short time. He said "1t was too hard to concentrate and it was easier to go out and have a drink". He has now abandoned any hope of obtaining his Higher School Certificate by after hours study and is pinning his hopes upon gaining entry to the Third Division of the Public Service through the clerical examination. The evidence establishes that there are two areas in which the plaintiff has sustained brain damage. One 1s in the behavioural sphere and the other in the intellectual sphere. Behaviourally he has what Dr Smith described as a Gisinhibited syndrome. He 1s impulsive, he has a low frustration tolerance, his moods are volatile. But more important than that, he has a lack of 3 things that are associated with the frontal lobe syndrome and they are lack 10. of insight, a lack of foresight and a lack of judgment. He has difficulty planning ahead, he has difficulty summing up Situations. Emotionally, apart from being volatile, he also appears to be somewhat chameleon, as though he no longer knows how to act appropriately, so he will put on a guise, a social guise, of activity of emotion ... it 1s a facade that he puts on. In the intellectual sphere, repeated testing after the accident suggested that his IQ is something in the vicinity of 100-115, whereas prior to the accident he probably had an IQ much higher than that. As far as his memory is concerned, he obtained reasonably good performances on memory tests. There were however aspects of the performances which also Suggested that there were decrements. He had difficulty with learning new tasks. Dr Smith concluded that there was evidence of intellectual impairment. He estimated that the plaintiff's IQ before the accident would have been something of the order of 130. He expressed the opinion that a significant change 1S very unlikely in his behavioural problems and 1t is most unlikely that his intellectual problems will improve at all. Dr Tennant expressed the opinion that he must remain at risk to have recurrent periods of depression and a reduced capacity to adjust to and to deal with stresses in his normal life situation. Dr Smith had also expressed the opinion that, because of his volatile personality and low frustration tolerance, it is most unlikely that the plaintiff will ever marry or have the capacity to bring up children. 11, The evidence established that in fact he had few friends and is desperate to form friendships, particularly female friendships, and that he 1s prepared to settle for any kind of relationship at any price. This inability to form friendships and relationships has given rise to the plaintiff's feeling that he is not very worthwhile. He has begun to consume alcohol. Dr Smith said that he has become much less tolerant to alcohol and expressed concern that the plaintiff's drinking habits may exacerbate his propensity to violence. Intelligence tests were performed on the plaintiff whilst he was in Year 10 at the Marist College, Pearce in 1977 by Mr E.A. Petroni, Clinical Pyschologist in his role as a Consultant Psychologist to the school. The tests showed that he had an IQ around 122. Mr Petroni expressed the opinion that on the basis of those tests the plaintiff had the intellectual capacity to pursue a University degree that held interest for him. Mr Petroni had also reported, as a result of testing the plaintiff 1n 1977, in words to the effect that he supported the plaintiff's choice of piloting as a career. This was an important piece of evidence in the case. In cross-examination Mr Petroni elaborated upon his qualifications to express this opinion. He said that he was the Deputy Director of Psychology with the Department of Air from 1970-1972 and was on the selection board for pilots and academy entrants and had interpreted psychological tests for those 2 years. 12. Mr Tom Sutton, Clinical Psychologist, tested the Plaintiff in May 1979 and late 1982. He confirmed Dr Smith's opinion that the plaintiff's post-accident IQ is around 115. He also reported that the plaintiff has a Significant short time memory decrement placing him below average. The plaintiff's brain damage 1S permanent and irreversible. He has reached the optimum level of recovery. He still has, and will continue to have, problems in memory, concentration, personality changes, impulsive control, personal relationships, and depression. At present his epilepsy is under control and he is not having treatment. The evidence is that he may never have further seizures but that epilepsy is so capricious that one cannot be sure that he is not going to have further seizures. With regard to his eyesight, he has lost "a little bit of vision as a direct result of his accident". The trial judge assessed the damages by attributing separate amounts to its various components, which were: Loss of earnings in part-time employment with Woolworths agreed $ 621.00 Medical and like expenses ($30,165.80 less $28,302.90 already paid on the appellant's behalf) 1,862.90 Loss of earning capacity 207,280.00 General damages for pain and suffering and loss of amenities of life 80,000.00 Total $289,763.90 It was submitted on behalf of the appellant that the damages awarded in respect of future economic loss and 13. general damages were excessive. In relation to the figure awarded for future economic loss it was submitted that the trial judge had made too many assumptions in the plaintiff's favour, particularly the assumption that the plaintiff would have undertaken a career in the Air Force. On the subject of loss of earning capacity the respondent tendered in evidence two reports by Mr J.R. Cumpston, Consulting Actuary, and Mr Cumpston gave evidence supporting the calculations set out in those reports. He made a number of calculations based upon alternative hypotheses which he had been asked to make. All calculations were based upon nett earnings after tax and quantified a present value of future earnings adopting a discount rate of 3% with no allowance for inflation or income tax upon the income from investment of the sum in question. The risk of death prior to age 65 was taken into account but not other contingencies. There was no challenge to the basis upon which any of the calculations was made. Mr Cumpston's calculations were based upon alternative career paths for the plaintiff. The alternative career paths were: (1) He entered the Public Service as a Clerical/ Administrative Officer on 5 February 1983 (1.e. at age 21) and would have experienced the average promotion rates for male Clerical/Administrative Officers. (2) He undertook a degree in computing science at the Canberra College of Advanced Education after 14. leaving school at the end of 1979 and upon graduation at the end of 1982 would have joined the Public Service as a Computer Systems Officer Grade 1 on 5 February 1983 and continued to work in the Public Service until age 65 with promotion at the average rate for Computer Systems Officers throughout his career; and (3) He entered the Air Force via a 4-year course at the Defence Force Academy leading to graduation as a Flying Officer with promotion to eventual rank ef Squadron Leader and compulsory retirement at age 47, at which age he would have joined the Public Service as a Clerical/ Administrative Officer Grade 9 being promoted to Grade 10 at age 52 and to Grade 11 at age 57. In each case there was deducted from the result of the calculations an amount based upon the facts proved in evidence, namely that the plaintiff entered the Public Service as a Clerical Assistant Grade 1 on 20 October 1980, was promoted to Grade 2 on 28 January 1982 and to Grade 3 on 25 January 1983 and the further assumption that he will continue at this level until retirement. The differentials established on the 3 assumptions set out above were, respectively, $127,964.00, $222,719.00 and $295,741. A further deduction was made on account of the fact that the respondent might, despite his injuries, progress beyond the level of Grade 3 in the Public Service. The trial judge took the view that it is unlikely that the respondent would fail to progress beyond the level of Grade 15. 3 and that it is likely that he will progress to the top of the Clerical Assistant level, namely Grade 6. Mr Cumpston's evidence was that in this event the sum which he provided should be reduced by $50,000-$60,000. Counsel at the trial did not dispute that in the light of that evidence the reduction that the trial judge should make was $55,000. The trial judge also considered that there should be an allowance of a further $3,000 to allow for the period which had elapsed between 14 February 1983 when Mr Cumpston gave evidence and the date of judgment. It was common ground that this court should also make that allowance so that, effectively, each of the amounts of $127,964.00, $222,719.00 and $295,741.00 set out above would need to be reduced by $58,000 1f one of them were to be adopted as a guide to the respondent's loss of earning capacity. The trial judge selected from the various figures the career in the air force as the most likely for the plaintiff and assessed damages for future economic loss on that assumption. His reasons for reaching that conclusion were as follows: "It seems to me that Anthony had the capacity to achieve a career as a pilot in the Royal Australzan Air Force as indeed Mr Petroni's test in 1977 showed. Anthony had a great interest in the Air Force and had achieved promotion in the Air Cadets. His subsequent actions after the accident in wearing some of his old uniforms, in applying to join the Air Force, and in joining the Army Reserve, show how ambitious he was to make a career in the Forces. The only real doubt that he would have made the Air Force his career arises from his poor results in the first and second terms at Phillip College. It seems to me likely that he would have overcome these problems and would in fact have entered upon a career in the 16. Air Force as he desired. It is true that he had a considerable interest in computers and that some of his problems at Phillip College arose from his use of computers when he should have been attending to his studies. But 1t seems to me that computing was not as dominant an interest as the Air Force and that his lack of attention to study was as likely to interfere with his future 1n the computer freld as 1t was to interfere with his future in the Air Force. On the whole, I think that I should assume that Anthony would have undertaken a career in the Air Force but, having regard to his results in the first two terms at Phillip College, I think that I should take into account a contingency with respect to that career. I shall reduce the value of the Air Force career by $30,461, the value of the after tax earnings of the final year. This reduction allows for a contingency including the fact that Anthony may well have had to undertake an additional year of schooling in order to undertake the career which he sought." It is notoriously difficult, and particularly in the case of persons who have not completed their education, to estimate what their earnings would have been but for injuries sustained. The younger the child the more extraordinarily difficult is the exercise. Of course all the relevant circumstances have to be taken into account. They include the plaintiff's scholastic record, his family and social circumstances, his personality and suitability for particular careers and positions in life. The factual background of the respondent, as found by the trial judge, was that his early schooling was at Marist College, Pearce, a private school ain which the discipline was reasonably strict. His academic results were average and rather lower than what the plaintiff and his parents considered his capacity could have achieved. The trial judge also considered the results of the test by 17. Mr E.A. Petroni, Clinical Psychologist, in 1977 to which I have referred earlier. He had a particular interest in the Air Force and was a member of the Air Training Corps in which he reached the rank of Corporal. He hoped to become a pilot in the Air Force. He was also interested in computers and he had in mind that, 1f for any reason he could not have become a pilot, he would become a computer systems designer and programmer, an occupation in which an uncle was engaged. At the beginning of the year of the accident, i.e. 1978, he moved to Phillip College to undertake his Year 11 and Year 12 schooling. He did so because the discipline at Phillip College was less , 1t was a co-educational college, many of his friends had moved there and the College had a better range of computer equipment. As a result of the lack of discipline his academic results deteriorated and he did poorly in the first two terms of 1978. The trial judge concluded that the respondent would not have gone on to University education and that the history of his achievements at Marist College and Phillip College indicated that the respondent was not likely to achieve success at a university. Having adopted the career of a pilot in the Air Force as the best guide to assessing damages for loss of earning capacity the trial judge deducted the sum of $58,000 referred to and a further sum of $30,461, "the value of the after tax earnings of the final year". The last mentioned figure came from one of Mr Cumpston's tables and was a projection of what the respondent might have been expected 18, to earn in the years 2020-2027 inclusive in employment as a Clerical/Administrative Officer Grade 9 at the end of his working life. Obviously his Honour meant to say "final years" and his approach was to disallow any earnings for this period on the assumption that the respondent's working life would have concluded in 2020 when he reached his 58th birthday. In discounting Mr Cumpston's figure by $30,461 his Honour took into account other contingencies as well. There was also evidence at the trial about the methods by which persons might enter the Air Force in a flying capacity. There are two methods, the first through the Defence Academy and the second as "direct entry air crew". Minimum education entry requirements are a pass in Year 12 level in English, Mathematics, Physics, Chemistry and one other accredited academic subject. A good pass at Year 11 level may suffice in the case of a person wishing to be appointed as a navigator. Statistics for 1981 and 1982 show that there are a great many applicants, very few of whom are selected. In 1981 1,563 applied and 138 were successful. In 1982, 1,666 applied and only 126 were selected. Returning to the submissions of the appellant, it was submitted that his Honour's acceptance of the proposition that the respondent would probably have embarked upon a career in the Air Force was unwarranted on the evidence and damages for future economic loss should not have been based upon the assumption. Counsel for the appellant relied upon evidence of the respondent's poor performance at the Phillip College and 19. the very low intake into the Air Force. It was submitted that the adoption of the career in the Air Force was too speculative on the whole of the evidence. Alternatively it was submitted that if, contrary to the primary submission, it was appropriate to adopt the assumption that the respondent would have entered the Air Force, much more substantial discounting was required than the sum of $30,461. The basis for this further submission was that, embraced in the assumption that the respondent would have entered the Air Force, was the further unwarranted assumption that upon retirement from the Air Force he would have obtained immediate employment as a Clerical/Administrative Officer Grade 9 with further promotions to Grade 10 at age 52 and to Grade 11 at age 57. On the other hand, it was submitted by counsel for the respondent that the trial judge was entitled to find that the Air Force was a proper career for the respondent, Counsel relied upon the respondent's own evidence of his intentions and the approval of such intentions by Mr Petroni at the time of testing in 1977, particularly paying proper regard to Mr Petroni's experience in Selection of applicants for Air Force careers. Under s.27 of the Federal Court of Australia Act 1976, in an appeal this court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact. The adoption of the Air Force career as a guide to the Plaintiff's future economic loss was arrived at by inference from the primary facts established. Accordingly we should 20. give weight to the inference drawn by the trial judge, but we are free to draw our own inferences from the primary facts. In other words the trial judge was in no better position than we are to come to a conclusion about the ultimate fact of the respondent's likely career path and to assess damages accordingly for loss of earnings. As the Privy Council said in Paul v. Rendell (1981) 34 ALR 569 per Lord Diplock at 571, the assessment of damages in actions for personal injury is not a science and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him 1f£ he had not been injured. On the whole of the evidence I am not satisfied that what the future holds for the respondent despite his injuries and residual disabilities is no greater achievement than a career in the Public Service in the Fourth Division with the prospects of advancement to the top of that Division, namely Grade 6. I think that a reasonable inference 1s that the respondent will progress beyond that level by promotion into the Third Division of the Public Service and the opportunity to advance into an administrative position in that way. I would therefore assess damages for future economic loss with that sort of assumption in mind, realising of course that there is a heavy element of guess- work in such an approach. So far as prophesying what the future would have held for the respondent if he had not been 21. injured, I would reject the career as a pilot in the Air Force as the most plausible judicial guess. It seems to me that the most that can be said about the respondent is that he 1s a young man who hoped to make a career as a pilot in the Air Force. But he had not qualified in any way for admission to that profession. Any assumption as to what he might have earned if he did qualify becomes necessarily speculative. Further, to assume that, having had a successful career with promotions to the eventual rank of Squadron Leader, he would have then gained fairly high level employment in the Public Service until age 57, is in my respectful opinion not reasonably open on the evidence. There are therefore grounds for this court to interfere with the damages awarded for future economic loss and it is for this court now to assess what sum would compensate the respondent appropriately under this head of damages. The three alternative figures thrown up by Mr Cumpston's calculations are available and should be used as guides to the figures involved on the basic assumption that the respondent would continue in the Public Service and not progress beyond Clerical Assistant Grade 6 with a prospect of advancing to that level and the three alternative career paths. In my view the figure of $127,964, less $58,000 to allow for the contingencies discussed, which presupposes entry into the Public Service as a Clerical/Administrative Officer on 5 February 1983 with average promotion is 22. insufficient to compensate the respondent for his loss of earning capacity. I think that the second figure of $222,719, less $58,000 for the contingencies, is a more satisfactory figure to adopt because I think it is more probable that the respondent would have, because of his interest in computers, channelled himself into some more highly qualified position involving computers, for which the opportunities to do so are multiplying in the Public Service area. Because I think this is what he might have been likely to do, but because of his injuries he will not do it as successfully, I would tentatively adopt a figure in the order of $150,000 for loss of earning capacity. I turn to the appellant's submissions in relation to the trial judge's award of $80,000 for general damages. In this regard I have had the advantage of reading in draft form the joint judgment of Sheppard and Neaves JJ. I agree that the award of $80,000 for general damages was within the exercise of a sound discretion by the trial judge and, for the reasons stated by my brethren, I do not think that this court would be justified in interfering with the assessment under this head. Adopting the tentative figure of $150,000 for loss of earning capacity, the various heads of damage may be summarised as follows: Loss of earnings in part-time employment with Woolworths 621.00 Balance of medical and like expenses 1,862.90 Loss of earning capacity 150,000.00 General damages 80,000.00 Total $232,483.90 23. I have considered this figure as a global sum and I think it would be appropriate to confirm that figure as a just award of damages for the respondent. However, my brethren think the higher figure of $257,483.90 is appropriate. It is not possible in an assessment of damages of the magnitude in this appeal to insist that a variation of 123% upwards is not appropriate. For that reason I am prepared to join in allowing the appeal and substituting judgment for the respondent in the sum of $257,483.90. The respondent should pay the appellant's costs. I certify that this and the 22 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice GALLOP ateumeneN Associate Dated: 29 2 8+ IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. 4.C.T. G 66 of 1983 DISTRICT REGISTRY GENERAL DIVISION On Appeal from the Supreme Court of the Australian Capital Territory BETWEEN RONALD GERWIEN Appellant AND ANTHONY GEORGE ARCUS by his next friend BENITO LAZAREVICH ARCUS Respondent CORAM: Gallop, Sheppard and Neaves JJ. SHEPPARD AND NEAVES JJ. 29 February 1984 RESSONS FOR JUDGMENT This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory in which the respondent recovered the sum of $289,763.90 for damages for personal angury. The respondent was 1ngured in a motor accident on 16 October, 1978. Liability was not in issue. The only question for the learned trial gudge and for this Court was the amount of the respondent's damages. The respondent was born on 5 February, 1962. He was 16 years of age at the time of the accident. Until the end of 1977 he had attended the Marist College at Pearce where, so it was said, the discipline was strict. At the beginning of 1978 he moved to Phillip College to commence his last two years of schooling, years 11 and 12. The discipline there was not so strict as at the Marist College. Pupils were left very much to their own devices. His Honour found that as a result of the lack of discipline, the respondent's academic results deterioreted and he did poorly in the first two terms of 1978. Notwithstanding evidence to the contrary from the respondent and his mother his Honour also concluded that tne respondent's academic results were average and rather lower than their evidence suggested even in relation to years earlier than 1978. From early in his life the respondent evinced interest in the Air Force as a career. He was a member of the Air Training Corps at school and attained tne rank of Corporal. He hoped to become a pilot in tne Air Force. Another anterest he hed was 1n computers and he had in mind that, 1f for any reason he could not become a pilot in the Air Force, he would become a computer systems designer and programmer, a field of occupation in which an uncle was engaged. The accident resulted in the respondent suffering a severe head ingury. He was admitted to the Woden Valley Hospital under the care of a neurosurgeon, a Dr. Newcombe, Qe Dr. Newcombe said that the respondent was admitted on 16 October, 1978, following a nead-on collision. On arrival he was unconscious but responding to pain. He was bleeding from the nose. He had a laceration in the region of his left eye. He was extremely irritable at first but had no focal neurological signs. By 20 October cerebral irritation had ceased. He would then open his eyes to a command but was aphasic (i.e. suffering from speechlessness). As spontaneous movement returned he developed a right hemiparesis (muscle weakness) which anitially became more dense. Tests, however, showed nothing other than probable evidence of cerebral oedema (swelling) and a carotid arteriogram showed that "his vascular tree was fully potent". Dr. Newcombe said that it was clear that the respondent had had a severe cerebral contusional ingury. He said there may have been some traumatic vasospasm (contracture of blood vessels) which would have diminished brain blood supply for a time. There was also evidence of considerable post traumatic brain swelling. Dr. Newcombe said that tne respondent continued, despite his inguries, to make excellent progress, and at review on 19 January, 1979, had only a mild headache at times and mild right-sided weakness. Memory was improving considerably, Be It was at that stage thought that he would be able to return to school. The respondent had been discharged from hospital on 24 November, 1978. During the time he was in hospital and for a short time after he returned home he had many visits from his friends, But after he came home the visits started to drop off. In the words of his mother, "and eventually there was an empty house, just Tony, his brother and sister and myself and his father...". He returned to school at the end of January 1979. He also returned to a part time gob he had had with Woolworths Limited. He experienced difficulty at school, partly because his memory was short and vrincipally because he was unable to concentrate for any lengtny period. His language became foul and he became aggressive. He was sexually disinhibited towards his mother. He became violent when tired and sometimes ran away from his home. The police were called on a number of occasions to find him. In April 1979 the respondent's mother found him in bed with his wrist slashed although the wound was relatively superficial. While she was treating the wound the respondent had what appears to have been an epileptic fit. He was admittea to tne Royal Canberra Hospital on 2 April, 1$79. During his stay there he became quieter, but appeared to deteriorate physically. He was released from hospital on 12 April, 1979, and spent Hester with has family at the coast. When walking the respondent frequently fell over. Though he was not aggressive, he was very depressed and very moody and talking about Slashing his wrists. He returned to the Royal Cenberra Hospital on 17 April, 1979, and was transferred to the Calvary Hospital. He was discharged on 1 May, 1979. His mother said that he was, "still pretty aggressive, still depressed, very depressed and had a lot of headeches. He complained of an awful lot of headaches". On 13 May, 1979, after another episode which the learned trial judge described as "wild", the respondent was admitted to the Woden Velley Hospital and then transferred to the Royal Canberra Hospital. He remained there until 13 July, 1979. On 20 July, 1979, the respondent attacked and choked his father. He was taken to the Royal Canberra Hospitel and transferred to the neuro-psychiatric unit at Prince Henry Hospital in Sydney. He came under tne care of a Dr. J. S. Smith, a psychiatrist. Amongst other things Dr. Smitn said: "During the course of his admission, he was very stormy, very violent. This 1s revealed in notes. There are many examples where he was quite extremely violent on occasions, tipping patients out of bed, On another occasion I think he threw twelve chairs around the room trying to hit a particular patient. At times he absconded from the ward. At times he returned drinking. On another occasion, he arrived with his head shaved and earrings. He had his ears pierced. So he was generally dis- ruptive on the ward, particularly when he was first admitted in the first few weeks. His behaviour settled a little bit and settled to the point where we tried to have him attend Cueen Elizabeth II Renabilitation Centre, but that was aborted by another volatile outburst, following which he attempted to slash his wrists. There were also occasions on the ward where he inflicted injuries upon himself, slashed his wrists on two occasions." Dr. Smith also said that there were two areas in which the respondent had sustained brein damage. One wes in the behavioural sphere and the other in the intellectual sphere. He said that behaviourally he had a disinhibiting syndrome. He was impulsive and had a low frustration tolerance. His moods were volatile. He said thet his intellectual decrement was difficult to measure because inadequate information as to his intellectual level prior to the accident was available. But he thought that there had been a substantial impairment of nis intellect as a result of his ingury. The respondent was discharged from the Frince Henry Hospital in November 1979. For a short time he obtained work as a volunteer nursing aide at the Woden Valley Hospital. In April 1980 he took an overdose of Dilantin tablets which he was taking to control his epilepsy. He was again in hospital for a short time. He had taken the overdose following an incident 1n whicn he had attacked his brother. It was then decided by the respondent's parents that it would be better for the family as a whole if the respondent were to move into his own premises. A flat was obtained for him in July 1980. In August 1980 he was able to obtain a paid job as a clerk and in September he obtained a special placement 1n the Public Service. He commenced in the Department of the Capital Territory as a Clerical Assistant Grade 1. He then obtained a position at the same level at the Defence Department. A supervisor who oversaw his work between April and November 1981 said that he was slow, failed to commit things to memory and tnat he, the supervisor, had quite a bit of trouble with him not observing the rules of dress and all that was recuired in the area in which the work was done. The respondent insisted on wearing a mixture of military uniform and civilian dress, He had obtained the military uniform as a member of the Air Training Corps and after he had joined the Army Reserve. The supervisor said that although he found him a willing worker, his main problem seemed to be lack of retention of knowledge. He had to be told to do various things or shown how to do them six or seven times before he could perform them in an acceptable manner. The respondent has made more success of a position to which he was transferred in the Air Force records section at Fyshwick. He obtained promotion and at the time that the evidence was given was in the Honeywell processing area. But this area was to be phased out and he would have had to return to a former position if that had been the case. One does not know what the position was, His Honour found that the respondent did not have the capacity or the qualifications to move from the clerical assistant level in Fourth Division of the Public Service to the clerical level in the Tnird Division. The problem is his inability further to educate himself. His Honour recounted his unsuccessful return to school in 1979 and a number of other attempts he made at technical colleges. All these were unsuccessful. In order to pass from the Fourth Division to the Third Division of the Public Service he requires his Higher School Certificate, This is beyond him, Apart from his problems with his intellect, he also has his behavioural problems. Even if his intellect would allow him in the future to achieve the Higher School Certificate, which seems doubtful, he is faced with a very serious behavioural problem which would very likely prevent him from progressing very far. His Honour summarised his findings as follows: "My own view of the matter is that Anthony is continuing to improve and should settle down reasonably well in the Public Service, although he is still having problems. I expect him to reach at least the level of CA6. However, I doubt thet he will have the ability to make tne transition from the Fourth Division to tne Third Division. He has attempted study and has not been successful. Although he has tne will to succeed, I doubt that he will be able to study for and pass the prescribed test." In 1981 the respondent joined the Army Reserve. He passed a medical test, probably by not disclosing his history of epilepsy. He has not obtained promotion in tne Reserve. Evidence given of his behaviour in the Reserve discloses that he 1s having a greet deal of difficulty. Amongst other things it was said that he had no close friends and had difficulty in relating to other people. This is a difficulty he has away from the Army Reserve. In the words of his Honour,"Anthony lives a quiet life, He is not able to attract friends", He has over indulged in liquor. He finds it difficult to nake friends with members of the opposite sex. Dr. Smith expressed the opinion that 1t was unlikely that the respondent would marry, or if he did, make a success of marriege. His Honour thought that his isolation and personality were sucn as to make it doubtful that he would marry. At the time of the trial aggression was not a frequent problem. So far as the family was concerned, matters had improved since he had moved to a flat of his own, There were however two isolated incidents which are described in his Honour's reasons. His Honour thought tnat the problem of drink "and of the disinhibition caused by the damage to the frontal lobe" could lead the respondent into difficuities in the future. He referred to evidence of a neuro physician, Dr. Danta, wno nad said, "But it would not surprise one if, when exposed to undue psychological stresses and pressures, abnormal behaviour came to the surface again". 10, The respondent has not had an epileptic fit for some years. Dr. Smith expressed the view that it was more probable than not that he would not again have an epileptic fit, but he added that epilepsy was capricious and the probabilities were fairly evenly balanced, There are two problems independently of the brain damage which should be mentioned. One 15 a slight problem with eyesight. He has a slight short-sightedness and astigmatism in the left eye and no refractive error in the right. An eye specialist, Dr. Pittar, thought he had lost some vision as a direct result of the accident. He did not think it was possible to correct it. The otner injury 1S an injury to the lumbar spine. Dr. Newcombe expressed the view that ne suffered a lumbar intervertebral injury in the accident. He thought that it would settle down with conservative treatment but that further progression could occur in later life with the possible need for surgery. The account of the respondent's inguries and dis- abilities which has been given has teen taken largely from the very comprehensive reasons for judgment of the learned primary judge. He nas not always indicatea expressly his acceptance of the various medical opinions to which reference has been made but, as we understand what his Honour has said, he accepted the evidence to wnich he has referred with the result that it formed the basis of the approach to the assessment of damages which he adopted. In any event there does not appear to have been any great division of opinion amongst the various doctors who gave evidence. Such differences as tnere were were differences of degree or emphasis only. There is, of course, revealed by the evidence a substantial uncertainty as to the respondent's future but his Honour approached the question of assessment of damages on the basis that the respondent had suffered a substantial intellectual impairment and that brain damage had also brought about a substential cnange for the worse in his personality. As the account which hes been given shows he has a substantial behevioural problem, notwithstanding that 1n some respects this has settled down in the years that have followed the accident and may not recur with the frequency that was earlier tne case. As previously mentioned the award of damages totalled $289,763.90. This was said to have been made up by adding the following figures: 12. Loss of part-time employment with Woolworths Limited $ 621.00 Future econimic loss $207,280.00 General damages for pain and suffering and loss of amenities of life $ 80,000.00 Medical and out of pocket expenses ($30,165.80 less $28,302.90 paid on account) $ 1,862.90 In the appellant's contention the award is excessive both in respect of the component for future economic loss and in respect of the component for general damages. We first come to the question of future economic loss. Reports from an actuary, Mr. Cumpston, gave the results of a number of calculations carried out upon hypotheses which he had been asked to make. The first of these was that the respondent entered the Public Service as a Clerical Assistant Grade 1 on 20 October, 1980, was promoted to Grade 2 on 28 January, 1982, and to Grade 3 on 25 January, 1983, and would continue at this level until retirement. That assumption proceeded on the basis that the respondent would not, by reason of his injuries, progress beyond Grade 3 in the Fourth Division of the Public Service. This was in turn based upon the medical evidence which suggests that he has reached the level of employment which he 1S capable of achieving or thereabouts. The calculation 13. made upon the basis of these assumptions yielded the following result: Salary in spite of injuries $257,359.00 Pension in spite of injuries $ 13,196.00 $270,555.00 The calculations, like others soon to be mentioned, were based on nett earnings after tax and quantified the present value of future earnings by adopting a discount rate of 3 per cent without making allowance for inflation or tax upon income from investment of the sum in question. The risk of death prior to age 65 was taken into account, but not other contingencies. There was no challenge to the basis upon which any of the calculations was made. The three remaining assumptions upon the basis of which calculations were made were all of an employment future unaffected by the accident or its consequences. The assumptions were: (2) But for his injuries the respondent would have entered the Public Service as a Clerical/Administrative Officer on 5 February, 1983 (1.e. at age 21), and would have experienced the average promotion rates for : male clerical/administrative officers until retirement 14. at age 65. (3) The respondent would have undertaken a degree in Computing Science at the Canberra College of Advanced Education after leaving school at the end of 1979. Upon graduation at the end of 1982 he would have joined the Public Service as a Computer Systems Officer Grade 1 on 5 February, 1983, and continued to work in the Public Service until age 65, with promotions at the average rate for Computer Systems Officers throughout his career. (4) The respondent would have entered the Air Force via a four year course at the Defence Force Academy leading to graduation as a Flying Officer, with promotions to eventual rank of Squadron Leader and compulsory retirement at age 47, at which age he would have joined the Public Service as a Clerical/ Administrative Officer Class 9, being promoted to Class 10 at age 52 ana Class 11 at age 57. The calculations based on these assumptions yielded the following results: Assumption 2 = salary but for inguries $371,478. pension but for injuries 327,041. $396,019. 15. Assumption 3 - salary but for injuries $464,299. pension but for injuries 28,975. $493,274, Assumption 4 - salary but for inguries 2450, 368. pension but for injuries 115,928, $566,296. If any of the second, third or fourth assumptions were adopted for the purpose of compensating the plaintiff, 1t would be necessary to deduct the amount yielded by the calculation based on the first assumption, it being the amount which the respondent may reasonably be expected to earn in his ingured state, If this exercise be done, the amounts which result are: Assumption 2 - less assumption 1 - $127,964. Assumption 3 - less assumption 1 - $222,719. Assumption 4 - less assumption 1 - €295,741. A furtner reduction would need to be made if one were to take the view that the respondent will, despite his injuries, progress beyond the level of Clerical Assistant Grade 3 in the Fourth Division of the Public Service. His 16. Honour thought that it was likely that the respondent would progress to the top of the Clerical Assistant level - effectively Grade 6. Mr. Cumpston gave evidence that in that event, the respondent's earnings would in fact amount to a further $50,000 to $60,000. His Honour with the agreement of counsel selected a figure of $55,000 for this purpose. His Honour also considered that there should be an allowance of a further $3,000 to allow for the period which had elapsed between 14 February, 1983, when Mr. Cumpston gave evidence and the date of judgment. It was common ground that we too should make that allowance. Effectively then, each of the amounts of $127,964, $222,719 and $295,741 set out in the above tabulation would need, if one were to adopt it as a guide to the respondent's future economic loss, to be reduced by $58,000. That is subject to one consideration which we shall later mention. Having considered how he should approach the matter, his Honour decided to adopt the facts postulated in assumption 4 as the respondent's likely career and employment path had he not been injured. After deducting the sum of $58,000 and the further sum of $30,461 later to be mentioned, this led his Honour to award $207,280 in respect of the future loss of earning capacity. His reasons 17. for reaching that conclusion were as follows: "It seems to me that Anthony had the capacity to achieve a career as a pilot in the Royal Australian Air Force, as indeed Mr Petroni's test in 1977 showed. Anthony had a great interest in the Air Force and had achieved promotion in the Air Cadets. His subsequent actions after the accident in wearing some of his old uniforms, in applying to goin the Air Force, and in joining the Army Reserve, show how ambitious ne was to make a career in the Forces. The only real doubt that he would have made the Air Force his career arises from his poor results in the first and second terms at Phillip College. It seems to me likely that he would have overcome these problems and would in fact have entered upon a career in the Air Force as he desired. It is true that he had a considereble interest in computers and that some of his problems at Phillip College arose from his use of computers when he should have been attending to his studies. But it seems to me that computing was not as dominant an interest as the Air Force and that his lack of attention to study was as likely to interfere with his future in the computer field as it was to interfere with his future in the Air Force. On the whole, I think that I should assume that Anthony would have undertaken a career in tne Air Force but, having regard to his results in the first two terms at Phillip College, I think that I should take into account a contingency with respect to that career. I shall reduce the value of the Air Force career by $30,461, the value of tne after tax earnings of the final year. This recuction allows for a contingency including the fact that Anthony may well have had to undertake an additional year of schooling in order to undertake the career which he sought." Two things in this passage need to be explained. The first 1s the reference to Mr. Petroni's test. Mr. Petroni 1s a clinical psychologist. Amongst other appointments Mr. Petroni was formerly a careers consultant for the 18. Marist College. Earlier - between 1970 and 1972 - he was the Deputy Director of Psychology with the Department of Air and in that capacity was on the selection board for pilots and entrants to the Academy. In 1977 Mr. Petroni carried out a number of tests on pupils at the Marist College. These included the respondent who was then in Year 10. Mr. Petroni's conclusion wes, "I support your choice of Piloting as a career. I have no objection to Law either". That is the test to which his Honour was referring in the passage from his judgment above quoted. It is convenient at this point to mention oral evidence given by Mr. Petroni. Of the respondent he said that he was quite capable of passing a university degree "that would nold interest for him". He expressed the same view in relation to a degree from a college of advanced education. It is obvious tnat his Honour accepted that evidence. Before his Honour was material which explained how persons such as the respondent mignt enter tne Air Force in a flying capacity. There are two methods, the first and preferrea way through the Defence Force Academy, and 19. the second as "Direct Entry Aircrew". Minimum education entry requirements are a pass at Year 12 level in English, Mathematics, Physics, Chemistry and one other accredited academic subject. A good pass at Year 11 level may suffice in the case of a person wishing to be appointed a navigator. Statistics for 1981 and 1982 show that there are a great many applicants very few of whom are selected. [In 1981 1,563 applied; 138 were successful. In 1982 of 1,666 applicants only 126 were selected. The selection rate is therefore well under 10 per cent of the available applicants. Returning to the passage earlier cited from his Honour's judgment, the second matter which needs to be explained is his Honour's reduction "of the Air Force career by $30,461, the value of the after tax earnings of the final year." That figure comes from one of Mr. Cumpston's tables. It is his projection of what the respondent might have expected to earn in the years 2020 to 2027 inclusive in employment as a Clerical/Administrative Officer Class 9 in the latter part of his working life. It would appear that his Honour meant to say, "final years", 20. rather than, "final year". His approach was to disallow any earnings for this period and thus effectively to make the assumption that the respondent's working life would not have commenced as early as Mr. Cumpston's calculations assumed. It should be understood, however, that this was not what his Honour necessarily intended. He was not engaging in a precise exercise. Rather this was his method of allowing for a variety of contingencies which he thought should be taken into account. In the submission of counsel for the appellant his Honour's acceptance of the proposition that the respondent would probably have embarked upon a career in the Air Force was unwarranted by the evidence and was sufficient to disclose error. A career in the Air Force was no more than a possibility. Not only was there the evidence of the respondent's poor performance at the Phillip College; the obstacles which the respondent needed to surmount were too many to enable one to draw the firm conclusion that an Air Force career 21. was likely. Of these the fact tnat the intake was less than 10 per cent of all applicants was the most significant but there were others. The respondent might himself have decided against the Air Force as a career, Or, although accepted, he might have failed to qualify as a pilot or a navigator. He may have had some illness or other disabling accident which would have left him with a disability which would disqualify him from being accepted for aircrew or able to continue aS a member of aircrew, An alternative submission was that if, contrary to tne primary submission, it was appropriate to epproach the matter by making the assumption that the respondent would have gone into the Air Force, much more substantial discounting was required than the deduction of tne sum of $30,461. One reason for this was that assumption 4, whicn his Honour acted on, had wrapped up in it the further assumption that upon retirement from the Air Force the respondent would have obtained immediate employment ata comparatively senior level in the Fublic Service. The assumption which his Honour accepted as likely involved the respondent receiving his full pension and obtaining 22. employment in the Public Service as well. In the submission of counsel for the appellant the evidence of what the respondent might have been expected to earn in the Air Force was no more than one of the guide posts to assist nim in reaching a conclusion as to what his loss of future earning capacity amounted to. He may have gone into the Air Force; equally he may have followed careers as contemplated in assumption 2 or assumption 3; or he may have followed some other career as to which there 1S no evidence, After all he was only 16 at the time of the accident and still had at least a year to go before he left school. His poor performance might well suggest that he would have repeated Year 11 with the result that he had over two years of schooling ahead of him at the time of the accident. It 1s well known that young people at thet stage of tneir lives are uncertain as to tneir future. Tney may at times think that a particular career is the one they will follow, but minds change, other suggestions arise for consideration and there is no certainty until the last year of school or even afterwards. In the submission of counsel for the respondent his Honour was well entitled to find it probable that the 23. Air Force career would have been available to the respondent and would have been undertaken by him. There was firstly the respondent's own evidence of his intentions. There was the mention of piloting as his first choice to Mr. Petroni. Mr. Petroni had said that the respondent had the requisite capacity and aptitude and, finally, there was his intense interest in the Air Force as manifested by his member-~ ship of the Air Training Corps. The first question is whether his Honour's accept- ance that the respondent would have entered the Air Force discloses error. The question is one of fact but not primary fact. We should give due weight to what his Honour has said but we are free to come to our own con- clusion about the matter. His Honour was in no better position to make a judgment about the respondent's likely employment future than are we. Having given the matter due consideration, we have reached the conclusion that his Honour was not justified in finding as a matter of probability that the respondent would heve had the cereer which assumption 4 postulates. In lay language there were simply too many ifs and buts. Furthermore, if he a4, had a career in the Air Force, we question whether he would also have had a career in the Public Service. It was going too far, in our respectful opinion, to say that it was more likely than not that he would have done. That being the case it 1s in our opinion for this Court to reach its own conclusion as to what sum will properly compensate the respondent for his loss of future earning capacity. Of course if the figure at which it arrives is the same as that arrived at by his Honour or very close to it, there would be no warrant for interfer- ing with his Honour's award. Cases of this kind present an extraorainarily difficult problem, The respondent's life was blighted before he had an opportunity to embark on any career. What can be said about him is that he had a high degree of intelligence. He was capable of a high level of tertiary education. On the other hand he was not performing well at school at the time of the accident. Would he have woken up to himself in time to enable him to matriculate? His Honour thought he would heve. We are prepared to adopt that view, butwe think 25. the probabilities are that he would have had to repeat Year 1l. Upon matriculation what would have happened? He may have gained entry to the Air Force. He may have had a career in the Public Service. He may have become the computer systems officer upon which assumption 3 is postulated. Or he may have followed one or another of countless other pursuits. And, within his chosen vocation, he may have been highly successful or moderately successful}; he may have performed in a mediocre fashion; or he mey have failed. He may have made one or more false starts. A variety of circumstances may have dictated that he change his career one or more times curing his working life. All tnese, and more, are possibilities. One has to caution oneself against taking too much from the actuarial evidence, perticularly the hypotheses which ere contained within 1t. The very vresence of these in the case rivets one's attention on three careers upon which the assumptions and calculations are founded. There is the consequent danger that the bounas of tne case will be too narrowed; one's horizons will be too limited. But 26. the evidence does have the advantage of giving one in a very general way guidance as to what a person embarking on three very different careers might expect to earn. It is probably safe enough to take the view that the amount thrown up by the calculation done in respect of assumption 2 is a realistic guide to the minimum which the respondent might have expected to earn in his working life if his earning capacity had not been so severely affected by the accident. A further matter to be noticed is that despite the difference in the ultimate results thrown up by the calculations done in respect of assumptions 3 and 4, there is in fact a substantial similarity between the earnings of an officer in the Air Force and a Computer Systems Officer. The resultant figures vary markedly not because of substantial differences in the earning rates, but because of early retirement in the Air Force, the assumed receipt of the very much larger pension which service in the defence forces entitles (no doubt because of that early retirement) and the assumption that employment would have been immediately available in the Public Service ata comparatively senior level. The respondent, upon the basis of assumption 4, would have the best of both worlds - early retirement with a substantial pension and further 27. well paid employment with a normal retiring age. We think that these considerations are of some help in the task at hand. They tend to show that earnings from two very different careers are not, when projected over a very long period, so very aifferent. When one acknowledges, as one must, the imprecision of the exercise and the fact that any life is affected by so many contingencies, some up and some down, the value of Mr. Cumpston's evidence may be seen as giving one general guidance as to a figure rather than as the precise indication for which counsel for the respondent contended. If instead of approaching the matter as he did, his Honour had taken the earnings of a Computer Systems Officer as a guide, not on the basis that that is the career that the respondent would have in fact followed but for his injuries, but on the basis that it gave the best guide as to what he might reasonably have been expected to earn in some walk of life, he would have commenced with a figure of $222,719. He would have needed to deduct the $3,000 to take account of earnings between the date when the evidence was given and the date of 28. judgment which would have reduced the figure, roundly, to $220,000. He would then have had to consider what further accretions or deductions should have been made. In an exercise of this kind, it is very important to take contingencies of all kinds into account. There 1s no warrant for always looking on the black side. We refer in passing to Teubner v. Humble (1963) 108 C.L.R. 491 per Windeyer J. at pp. 508-509, Bresatz v. Przibilla (1962) 108 C.L.R. 541 per Windeyer J. at pp. 543-544 and Lulich v. Beli Bros. Pty. Limited (1967) 41 A.L.J.R. 268 per McTiernan and Taylor Jd. at p. 268 and per Kitto J. at p. 270. In our opinion, notwithstanding the obvious difficulties which there are in seizing upon any figure, a safe guide to the respondent's loss of earning capacity was given by the result yielded by Mr. Cumpston's calculations based on the third assumption, that is the Computer Systems Officer's career. But one must not lose sight of the possibility that he may have had the Air Force career and the subsequent Public Service career which is postulated in the fourth assumption. He may have had a career in commerce or in 29. law, a career mentioned specifically in Mr. Petroni's report on his testing. On the other hand one must have regard to his poor performance at school and the likelihood, as his Honour thought, that the respondent may well have had to undertake an additional year of schooling before embarking on whatever career he might have chosen. Mr. Cumpston's calculations, as has been mentioned, assumed that the respondent, because of his disabilities, would not progress beyond the level of Clerical Assistant Grade 3. The learned trial judge thought that the respondent would reach the top of the Fourth Division of the Public Service and that the appropriate allowance to be made for this contingency was $55,000. If it be thought that he will not do so, or that there is some chance that he may not, then either no figure should be added on to the result yielded by Mr. Cumpston's calculations based on the first assumption, or a figure less than $55,000 should be added thereto. His Honour's finding is not one of primary fact, but, to a degree, must have been based on his observation and assessment of the respondent whom he had the advantage of seeing. 30. Nevertheless, having considered the whole of the evidence, we think that there must be a question mark over the respondent's ability to reach the top of the Fourth Division and that the figure of $55,000 should be discounted to take account of the possibility that he will not. In all the circumstances we have reached the conclusion that the respondent would be properly compensated for the loss of earning capacity which he has suffered by an award of $175,000. We turn to the other complaint made about his Honour's judgment, the award of $80,000 for general damages. His Honour's findings upon which this component was based are as follows: "I have already detailed the factors which go to the assessment of Anthony's pain, suffering and loss of amenities of life. A case such as the present is a difficult one on which to place a sum of money. Anthony's mode of life has been dramatically changed. Prior to the accident he was 'very cocky and very sure of himself', a person with a wide variety of interests including music, a person with considerable capacity and with many friends. At the present time, he has very limited capacity, he has a tendency to act perversely and with aggression, he has lost his friends, he lives on his own and it is unlikely that he will marry. The injury which he has suffered 31. "is a very serious injury. Life is not made easier for Anthony by his knowledge of the difference between the person he was prior to the accident and the person he is now. Although he is improving, there is a risk that, in the future, through alcohol or like cause, he will deteriorate. In addition to the brain damage, Anthony has a significant risk of epilepsy, a slight loss of vision and an orthopaedic disability in his back which presently gives him a little pain but could cause substantial problems in the future." In our opinion one has to take into account primarily the following matters in reaching a conclusion on whether a sum of $80,000 for general damages 1s appropriate or not. They are: 1. The experience through which the respondent has so far been. This ought not to be minimised. He has had a shocking time. 2. He has behavioural problems. He has few friends. He 1s unlikely to marry. 3. His chances of following what in his eyes would have been a fulfilling and satisfying career are destroyed. That 1s because of the effect on his intellect the accident has had. 4. He 1s well aware of his predicament and particularly well aware of the change in his personality which has come about. In particular he will realise all his 32. tay life what he can achieve and what might have been. 5. He was 16 years of age at the time of the accident. This component of the award has to compensate him for his life expectancy, a period in excess of 55 years. Those being the circumstances, we are of opinion that a sum of $80,000 could not possibly be said to be so high as to disclose error. In our opinion it is well within the exercise of a sound discretion. Of course the award to be made has to be looked at as a whole. The real challenge is to the totality of the award of $289,763.90. Adopting the figure of $175,000 for loss of earning capacity and $80,000 for general damages, a total figure of $257,483.90 is reached. We have considered this figure as a global sum and consider it to be an appropriate one. For the above reasons the appeal should be allowed and the order dated 29 July 1983 of the Supreme Court of the Australian Capital Territory be varied by substituting for the figure $289,763.90 therein the figure $257,483.90. The respondent should pay the appellant's costs of the appeal. | certify that this andthe 32 preceding pages are atrve Copy of the reasons ter judgment herein of The Honocrable. Mr Justice Sheppard and The Hencurable 33. MrJestice Neaves: Datec 39 Febroary ACY