GOVERNMENT INSURANCE OFFICE OF NSW v HEALEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and HANDLEY JJA 29 June, 21 August 1990 [1990] NSWCA 71 DAMAGES — motor vehicle accidents — five injuries — cases and appeals heard together — appeals in respect of two injuries abandoned — claim that damages awarded in respect of three injuries excessive — young solicitor with busy practice — multiple injuries including to neck and back — loss of one day from work and no hospitalisation — possibility of loss of earning capacity in fifteen years time — proper approach to estimation of damages for loss of earning capacity — proper approach to general damages — held: (Allowing appeal from Allen J) (1) An award of $100,000 general damages was excessive and should be reduced to $50,000 having regard to the disturbance of life proved by the evidence; (2) The allowance for future economic loss was also excessive and failed properly to approach the estimate of damages payable in respect of hypothetical future events. Malec v J C Hutton Pty Limited (1990) 64 ALJR 316, applied. Mallett v McMonagle (1970) AC 166; (Davies v Taylor (1974) AC 207 and McIntosh v Williams (1979) 2 NSWLR 543 applied; (3) An allowance in respect of lawnmowing services should be disallowed. Kirby P, Clarke and Handley JJA The respondent sued to recover damages in respect of injuries received by him in five separate motor vehicle accidents. In some of the cases liability was admitted, in the others liability was established. The trial judge awarded him damages of $23,356.00 in respect of the injuries received in the first accident; $23,242.00 in respect of the injuries received in the second accident; $316,128.40 in the third accident; $1,000.00 in respect of the injuries sustained in the fourth accident; and, $750.00 in respect of the injuries sustained in the final accident. Notices of appeal were filed in respect of each judgment but the appellants have only pressed the appeals in relation to the judgments concerned with the first three accidents. The appeals in actions No 18455/85 and 18457/85 should be dismissed. The respondent was born on 11 April 1952 and upon leaving school he entered into articles of clerkship in 1971 with Messrs Sharah Henville and Co, solicitors of Sydney. In due course he completed his articles and the Solicitors Admission Board course and was admitted to practice as a solicitor in 1979. In the same year he became a partner in the practice and remained in that partnership until it was dissolved in 1982. Following the dissolution of that firm he entered into a partnership with another solicitor under the name Ledgerwood and Healey. He remained in that firm until 1983 when he set up in practice on his own under the firm name G H Healey and Co. At the time of trial in August 1988 the firm had grown to the extent that there were five partners (although one was about to leave to commence practice as a barrister), three Associate Partners, three employed solicitors and twenty support staff. In 1987 the practice opened a branch office at Lakemba and in 1988 further ones at Fairfield and Coogee, the latter being opened only about two months before the trial. The reason underlying the opening of the branch offices was an attempt by the partners of the firm to broaden the base of the practice which was 2 UNREPORTED JUDGMENTS essentially a litigation one specialising in motor vehicle accident and compensation work. As there was uncertainty surrounding the extent to which solicitors would be involved in this work in the future in the light of projected changes to the law the partners of the firm decided that they should endeavour to widen the base of the firm's work. In addition the Lakemba office was used for the interviewing of clients who lived in that area. The respondent gave evidence that prior to the first accident he was in good health and had had no trouble with his neck or back. On 23 August 1977 whilst a passenger in a car being driven in Bondi Road, Bondi Junction, he was injured when there was a collision with another vehicle. Initially he had headaches and a sore neck and later his back became sore. He made a substantial recovery within two weeks and after a period of three months his symptoms had disappeared. The next accident occurred on 10 September 1978. Again he was a passenger ina vehicle being driven in Bondi Road when another vehicle was driven through a stop sign and collided with the vehicle in which he was riding. It was, he said, a pretty hefty collision. On this occasion he sustained some injuries to his shoulder, neck and back. He said he suffered continuous pain from those injuries for about three weeks and thereafter intermittent pain and soreness which cleared up completely within two months of the accident. The third accident occurred on 19 January 1980. Again the accident occurred in Bondi Road and on this occasion the vehicle which the respondent was driving, whilst stationary, was struck in the rear by another vehicle. This was a severe impact and following the accident the respondent noticed weakness in his back and shortly thereafter a headache developed. On the next day he noticed tightness across both shoulders and across both sides of the chest. A few days later, whilst lying in bed he noticed bi-lateral arm numbness and tingling and also some tingling in the feet and toes. He, therefore, decided to see Dr John Alam who had previously treated him in respect of the injuries received in the earlier accidents. The doctor made a diagnosis of mild to moderate whip lash injury with some physical signs of irritation of cervical and lumber nerve roots. The trial judge accepted that the plaintiff had had continual discomfort in his back since the accident in 1980. In his reasons for judgment he said: "Apart from the relatively short periods of exacerbation which were caused by each of the two accidents in 1985 it has not been a constant pain. It has been more in the nature of constant discomfort with frequent episodes of pain. I find that pain is a daily, or almost daily, occurrence. It is triggered by various activities or bodily positions." His Honour also concluded that in the 20 months immediately preceding the trial the overall picture had been worsening and he accepted that the respondent had pain which was quite severe at the end of a day's work on an average of about three days per week. The significant, substantial continuing disability found by his Honour was the back pain although the respondent did have neck pain which his Honour described as an intermittent nuisance only. The approach to the assessment of damages was complicated by the fact that there was evidence to support the view that each of the first two accidents contributed in some degree to the respondent's continuing problems. The trial judge wrestled with the problem posed by this evidence and concluded that it was appropriate to attribute 90 per cent responsibility to the third accident and 5 per cent to each of the first two. \ROVERNMENT INSURANCE OFFICE OF NSW v HEALEY (Kirby P, Clarke and Handle? JJA) There has been no appeal from this approach and accordingly it is appropriate that it be adopted upon the appeal. The appellants, who were all represented by the same counsel, who, in turn, were instructed by the solicitors for the Government Insurance Office (which obviously insured all the appellants) first challenged the award for general damages. Because the respondent's continuing problems resulted from the effects of the three accidents his Honour approached this element of damages upon the basis that it was appropriate to award sums by way of general damages for the immediate period following each accident and supplementing those awards with a percentage of an overall award of general damages for the continuing disabilities. In doing so he awarded $2,500 specifically in respect of each of the first two accidents and $5,000 in respect of the third. In addition his Honour allowed $90,000 for what he described as the continuation and progressive deterioration of the respondent's back condition for the rest of the respondent's life. This sum was apportioned as to $81,000 to the third accident and $4,500 to each of the first two. The total award of general damages in respect of the three accidents was therefore $100,000 made up of $7,000 in respect of each of the first and second accidents and $86,000 in respect of the third. These awards took account of the usual factors comprised in an award of general damages and, as well, compensation for two particular losses which his Honour identified separately in the judgment. The first concerned future medical expenses. No claim was made for those expenses, nor was evidence led to support such a claim. His Honour, however, concluded that there was a real risk that the respondent would need medical help from time to time for pain relief and, in the absence of evidence, thought it appropriate that some account should be taken of that factor in the general damages. The appellants do not challenge that approach in principle but submit that in the absence of evidence of likely treatment, apart from physiotherapy (which was the subject of a separate award), his Honour could have made but a small allowance for this item. The next, and more unusual, element included in the general damages was a loss which the respondent claimed he had sustained because of his inability to obtain sickness and accident insurance in respect of his back. In broad terms the position was that prior to the third accident the respondent had sickness and accident insurance cover with the AMP Insurance Company to the extent of $833 a month. He subsequently increased that cover by various steps to the amount of $4,200 a month. But the cost of obtaining that increased cover was the acceptance of an exclusion clause excluding disablement relating to back injury or disorder. His Honour expressed the opinion there was little substance in this claim, for reasons which he gave, and it is obvious from his comments that he was of the opinion that the compensation which was properly attracted by this claim was so small as not to justify a separate allowance. Nevertheless he thought that it should be taken into account in fixing general damages. Although, therefore, the total award should be understood to have been increased very slightly by these two items the bulk of the amount stands to be considered against the respondent's injuries and disabilities and the interference with the amenities of his life. Senior counsel for the appellants submits that, although the respondent has suffered from continuing back disability which will probably get worse in the future and may well cause him problems with his work as he gets older, the amount awarded 15 out of all proportion to the injury and disabilities. He points out that the respondent was not hospitalised at any stage, had lost only one day 4 UNREPORTED JUDGMENTS from work during the period between 1977 and 1988, had continued surfing and swimming, had consistently jogged on hard streets for a number of years after 1980 and had never suffered from the extreme pain flowing from operative treatment or the crippling effects of a serious physical insult. The amount awarded was, he submitted, quite discordant with the proven facts. Senior counsel for the respondent has sought to support the award by pointing out that in addition to the normal factors which his Honour took into account he was also obliged to, and did, pay regard to the two matters which we have earlier mentioned; the frustration which the respondent as a workaholic would have in relation to his inability to perform both professionally and otherwise as he would have wished; the significant but small risk that he would be forced into premature retirement with attendant added frustration and that he was left with a back much more prone to injury than he would have had but for the first three accidents. Having regard to all those factors he submits that the award had not been shown to fall outside the range represented by the exercise of sound judicial discretion. During the hearing of the appeal the tentative view was expressed that the award was completely out of proportion with the injury and losses proved. Since the completion of the appeal we have re-read the evidence in the light of the various submissions and with particular regard to the evidence of the respondent and Drs Alam, Seaton and Dan whom the trial judge accepted. Having done so we see no reason to alter the tentative opinion expressed during the hearing. Although we accept that the respondent has suffered back pain and discomfort, and to a lesser extent neck pain and discomfort, since the accident and that the pain is regularly quite severe by the time he has finished work and driven home the evidence does not justify an award of $100,000.00. Indeed the award of $36,500 for past general damages for a person who has not been hospitalised and has lost only one day from work is well beyond the permissible range. Although we would accept that in a case of this nature an appropriate award of general damages would fall within a fairly wide range we are of the clear opinion that the sum awarded exceeds by a large measure the top of that range. Accordingly, the award should, in our opinion, be set aside and in lieu thereof the respondent should be awarded $50,000 general damages. Rather than award precise sums for fixed periods it is more appropriate, in our view, simply to divide that figure between the three accidents in the proportions found by his Honour. Accordingly, we would allow $2,500 general damages in respect of each of the first two accidents and $45,000 in respect of the third accident. The next element challenged by the appellants was the allowance for the impairment of earning capacity. The respondent conceded that there had been no economic loss flowing from his injuries and disabilities between the date of the first accident and the date of trial but submitted a claim for impairment of future earning capacity which he particularised as follows: "The plaintiff as a result of his injuries and continuing disabilities will be unable to continue to work at his full pre injury working capacity and also it will be alleged at the hearing that his working life could be curtailed. At the hearing there will be a claim made on the basis of a future, reduced earning capacity and shortened working life. Furthermore, at the hearing it will be alleged that should this situation eventuate the plaintiff will be required to employ additional professional staff to provide substitute labour for him." \ROVERNMENT INSURANCE OFFICE OF NSW v HEALEY (Kirby P, Clarke and Handley JJA) His Honour was of opinion that although the respondent was capable at present of coping with his professional life he would not be able to carry on like that for as long as otherwise he would have. He thought he was not the type of person who would have eased up through choice after he had achieved financial security. He regarded him as a workaholic who would be minded to work as hard as he could for the rest of his working life. In endeavouring to measure the impact of the disabilities on the respondent's working life his Honour referred to the evidence of Drs Seaton and Dan which he accepted. Dr Seaton, who accepted that it was almost impossible to predict what effect the disabilities would have on the respondent's work performance, thought that he may be reduced to working five or six hours a day when he was in his fifties. On the other hand the doctor thought that the respondent's nature was such that he would be highly unlikely to give up work. Dr Dan considered that about fifteen or sixteen years after the date of trial there might be some reduction in the hours that the respondent worked. According to this view a reduction would occur when the respondent was 51 or 52. He was then asked this question: "Q. Let us take a middle period, you said 15 or 16 years, take say 20 years from now, to what extent would you expect that he would have to reduce his working hours as a solicitor assuming for the moment that he is working about a 48 hour week?" To which he gave the following answer: "A. It is very difficult. I would think that if he wasn't doing a lot of driving he probably would be reasonably capable of doing about half a day compared with what he is doing now with a lot of driving, I suspect it may be less than that." His Honour preferred these opinions to that of Dr Alam who thought that there was only about a one in ten chance of any foreshortening of the respondent's working life, and considered that he would reduce his working hours about 10 per cent in his early fifties and taper off so that by about the age of 60 he would be only working about 60 per cent of the hours he previously had worked. This opinion was regarded by his Honour as slightly less gloomy than the forecasts of Dr Seaton and Dr Dan. Upon the basis of those opinions his Honour concluded that it was appropriate to calculate the respondent's loss upon the basis of a 50 per cent reduction in his working hours commencing when the respondent was between the ages of 51 and 52. In addition, his Honour thought that the loss flowing from that reduction would extend for about 15 years until the respondent was between the ages of 66 and 67. When it came to the task of reflecting that loss in money terms his Honour was placed in an extremely difficult position by a tactical stance taken by the respondent. For reasons which were not explained no attempt was made to lead evidence of the respondent's earnings at any time in the 9 years since he had commenced practice. Nor was any attempt made to prove the gross takings of any of the partnerships in which he had been involved. There was simply no evidence of the respondent's earnings at any time since he had been a solicitor. Although the trial judge was bound, notwithstanding the absence of this evidence, to determine the appropriate amounts to be awarded for the loss which he had found to be established (see National Instruments Pty Limited v Gilles, 49 ALJR 349; J K Kealley v Jones, (1979) 1 NSWLR 723, at 733-4) the unexplained absence of the primary evidence upon which the Court could expect normally to rely made the task a difficult one. Furthermore, given that the respondent was a solicitor specialising 6 UNREPORTED JUDGMENTS in motor vehicle litigation it was singularly appropriate for his Honour to infer that the earning figures which the respondent might have put before the court would not be helpful to him. However whilst his Honour indicated that he drew that inference his later reasoning would indicate that he did not take account of it in assessing the loss. For instance his Honour, without the benefit of any evidence from the respondent or any one called on his behalf, expressed his view that the respondent's earnings would be an unsafe basis for a calculation which took account of a loss occurring 15 years after the date of trial. The reason for this view seems to have been that the respondent's firm was a relatively young one. But while that consideration may have given rise to the need to make allowance for improvements in earnings in the future, even in the absence of evidence showing, for instance, a steady growth in earnings, it does not provide any support for the conclusion that no help was to be derived from those figures. The respondent sought to prove his claim by showing that he was a man of capacity, and this his Honour accepted, and by leading evidence from Mr Garling, a past President of the Law Society, as to the results of surveys which had recently been carried out into the earnings of solicitors. Those surveys indicated that there were, broadly speaking, three levels of income for partners in city firms. The first level represented those practices which were encountering difficulties and in which the partner would be fortunate to earn gross income (before tax) in excess of $50,000. There was a second level in which solicitors earned about $100,000 and there was a third level in which the earnings were substantially in excess of that, in the order of $300,000 plus. The highest level, the $300,000 plus level applied to two types of firms, either those practitioners in firms which had a particular, and we infer remunertive, speciality, or practitioners in the very large firms. Mr Garling also said that the second category applied, in the main, to firms with four or five partners. Upon the basis of this evidence the respondent submitted that his loss should be measured in accordance with the second or third level. His Honour accepted this approach and concluded that 15 years from the date of trial the respondent would be earning (in today's money terms) $125,000 per annum. Taking the view that the consequence of the respondent's restriction in capacity would reflect in an earnings diminution of 50 per cent his Honour calculated the annual loss at $31,093 or the weekly loss at $598. Applying the 3 per cent table in order to calculate the present value of the weekly loss, and reducing the sum resulting from that calculation by 12 per cent to take account of vicissitudes, his Honour allowed $213,485 which he apportioned between the three accidents. Senior counsel for the appellants submitted that the award was flawed by four errors. First, his Honour's conclusion that by the age of 51 the respondent would have reduced his working hours by 50 per cent was not supported by the evidence and, in particular, the evidence of Drs Seaton and Alam. Secondly, it was wrong to conclude that the reduction of the working hours led to a corresponding 50 per cent reduction in earnings. Thirdly, an allowance of 12 per cent for the vicissitudes was manifestly inadequate and, fourthly, there was no evidence to support a finding based upon the respondent working until he was aged about 66 or 67. \ROVERNMENT INSURANCE OFFICE OF NSW v HEALEY (Kirby P, Clarke and Handley JJA) In considering this aspect of the appeal it is important to bear in mind the task which is undertaken by a court when assessing the damages for future or potential events. In Malec v J C Hutton Pty Ltd, (64 ALJR 316, at 318) the majority of the High Court said: "When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but now cannot occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have, or have not, occurred damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would, or would not, have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring.... Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded." This approach is well established. For instance in Mallett v McMonagle, 1970 AC 166, at 176, Lord Diplock said: "But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards." To similar effect is the statement of Moffitt P and Samuels JA in McIntosh v Williams, (1979) 2 NSWLR 543, AT 550: "Where an evaluation of a loss has to be made and the extent of the loss depends upon an uncertain event, which has not occurred by the time the evaluation is made, such evaluation must be made by reference to the chance of the event occurring, and not by reference to whether or not the occurrence was or is probable." (See also Davies v Taylor, 1974 AC 207, at 212-3.) We would add, however, that we do not understand the majority in Malec to be saying that one seeks to obtain mathematical precision. What is required is that the damages to be assessed be proportioned to the injury or loss (Davies v Taylor, supra, per Viscount Dilhorne, at 219). In this case the respondent was claiming that there was a real chance that his earnings would be significantly reduced because of an inability to continue working at the pace which he would have been able to work if uninjured. The court was therefore required to consider whether there was such a chance and, if it found that there was, to award compensation proportioned in broad terms to the 8 UNREPORTED JUDGMENTS degree of chance. If, for instance, there was but a slight possibility that such a loss would occur then the damages to be awarded for that loss would be much less than if there was a very high degree of probability. It seems to us that his Honour did not adopt that approach. He considered the evidence of the medical practitioners and, applying a rule of thumb to the effect that a reduction of 50 per cent in hours of work would be reflected in a similar reduction in the share taken out of a partnership profits, he concluded that the plaintiff "will suffer a 50 per cent diminution in his before tax earnings commencing in 15 years time". His Honour seems to have found it more probable than not that this would occur and then to have treated the chance as a certainty for the purposes of assessing compensation. If he did so he was in error. On the other hand it may be that his Honour was compensating for the chance that the respondent would suffer a reduction in working hours and, for this reason, applied a 12 per cent discount. The difficulty with this view is that his Honour expressly said that he was making that discount for the vicissitudes of life and this would indicate that his Honour was adopting the first mentioned approach. If, contrary to our view, the trial judge was compensating for the chance his assessment of that chance (viz 88 per cent) is not supported by the evidence. On either basis his award cannot stand. Accordingly it falls to this Court to assess the proper compensation for the chance, which is reflected in the evidence which his Honour accepted, that, although the respondent would not be forced to stop work at an earlier point of time than otherwise he would have stopped, his earnings will diminish because of his inability to apply himself to his work after he reaches the age of about 50 to the same extent as he would have if uninjured. In carrying out that task we base our conclusions, as his Honour did, on the medical evidence which he accepted. At the same time it should be said that the doctors recognised that they were engaging in a degree of speculation, or, as one doctor put it making an educated guess, based upon their opinions as to the likely deterioration in the respondent's condition and, perhaps, on empirical knowledge of the work practices of solicitors. In our opinion, having regard to that evidence, a proper conclusion is that there is a significant chance, which it is impossible to evaluate in terms of percentage, that by the time the respondent reaches the age of 50-55 he will find it impossible to devote the same hours to his work that he does now. We doubt, however, that he will reduce his working hours by 50 per cent. It seems to us more likely that he will endeavour to organise his office so that he can continue to spend nearly as much time there as he has done in the past without being required either to drive as frequently as he presently does or to sit in the one place for lengthy periods. The imponderables are, however, so great that it is very difficult to go beyond saying that there is a real risk that there will be a significant diminution in the hours which the respondent will be able to work in his latter years in practice. The difficulties do not stop there because neither the evidence nor common knowledge or experience suggests that there is a rule of thumb that senior partners of solicitors firms suffer a diminution in earnings proportionate to the reduction in working hours. We have no difficulty in accepting that there would be some reduction in earnings but doubt very much whether a senior partner would lightly agree to a reduction to the extent found by his Honour, particularly if he is responsible (as the respondent was) for attracting much of the firm's work. \ROVERNMENT INSURANCE OFFICE OF NSW v HEALEY (Kirby P, Clarke and Handleg JJA) As there is so much uncertainty and the respondent has forborne from leading evidence of his earnings we consider it more appropriate to award a lump sum which we believe reflects the adverse chance resulting from the accident than to attempt the wholly artificial task of using figures which have not been shown to relate to the respondent and, by means of the discount tables, ascertaining the present value of those figures. In accordance with our preferred approach we would award $65,000. If, contrary to our view, it were appropriate to apply the tables we would infer that the respondent's earnings did not assist his case and in particular did not support his contention that he would be earning at the second or third level. In these circumstances the appropriate finding is that his loss be assessed on the basis of pre tax earnings of about $50,000 or after tax earnings of $35,000 a year. We would take 25 per cent of those earnings to reflect both the fact that we are assessing the chance that the respondent will be unable to work as productively in the future and the chance that that will result in some loss to the respondent. The present value of the resulting loss calculated upon the basis that the appropriate discount rate is 3 per cent is very slightly in excess of the amount that we consider should be awarded. It is obvious that the award which we would make is significantly different from the award made by his Honour. In our opinion the differences reflect his Honour's failure to adopt the correct approach, his failure to apply the inference which he drew, the consequent application of an earnings rate which was not justified on the evidence and his reliance upon a rule of thumb which was neither a matter of common knowledge nor supported by evidence. The final challenge by the appellants concerns an award of $15,570.00 for the cost of gardening and lawn mowing services. His Honour made no award for this type of expenditure incurred prior to the trial. In respect of the future he said: "T do not allow that for the whole thirty-seven years of his remaining normal life expectancy... I allow $15 per week for thirty years." Since the plaintiff was aged thirty-six at the date of the trial it is apparent that His Honour has only allowed for such expenditure after the date of trial until the plaintiff attained the age of sixty-six. Prior to the plaintiff's marriage and for some time thereafter he lived at Bondi presumably in a flat or home unit. During 1982 the plaintiff and his wife moved to a house at 423 Mowbray Road Chatswood on a sloping block which had lawns and a garden. For the first twelve months after the move the plaintiff did his own gardening and lawn mowing. He then "gave it away". The sloping block had created difficulties for him with his back in mowing the lawns. Thereafter at some stage before 1985 the plaintiff and his family moved to 26 Edgar Street, Chatswood. The evidence of the gardener who had worked for the plaintiff since 1985 was that this was a level block. However despite the move from 423 Mowbray Road the plaintiff continued to employ a gardener and after 1983 up to the time of the trial he had not done any of this work himself. The plaintiff did not claim that he was unable to do the general gardening but said that he was "happy" to have the gardener do it. In cross-examination he said that the demands made on him by his practice had caused him to reduce the time he had previously spent in jogging, walking and in other forms of exercise. He also agreed that it was "a factor" in his decision not to do his own lawn mowing and that he and his wife wanted him to spend more time with his family rather than mowing the lawns. He also said "I would like to be able to do it if I want to do it". This answer in our view indicates that although the plaintiff has found 10 UNREPORTED JUDGMENTS it convenient for business and personal reasons to employ a gardener he naturally regrets his diminished capacity to perform such tasks for himself should he wish to do so. This conclusion is supported by evidence of the long hours that the plaintiff worked in his practice. He said that he used to work at the office on Saturdays and that on Sundays he worked at home on files. As the practice expanded during the last few years before the trial he worked "longer hours". At the date of the trial he "sometimes" worked on Saturdays and "very rarely" on Sundays and he was still taking work home but not as much. His wife however said that he had always been a very busy man and that his work had not changed over the seven years she had known him. He arrived home at night between 7.30 and 8.30 and "every night the phone normally goes until about 11" on business calls. The trial judge said that he considered "that in some measure [the plaintiff] would have had, if not now at least in future years, some employed assistance of that type [ie, a gardener]. Professional time restraints would have prevented him from doing all of it himself". In our view the evidence goes further and leads to the conclusion that this expenditure does not represent a loss which has flowed to the plaintiff as a result of these accidents but rather reflects expenditure voluntarily incurred by him for the purpose of leaving him more time to spend with his family or working in his practice. The decision on this question does not turn on any question of the credibility of either the plaintiff or his wife. The trial judge drew the inference that the plaintiff would in any event have employed someone to do part of this work and that professional time restraints would have prevented him from doing all of it himself. In our view the proper inference from all the evidence is that the plaintiff for the reasons we have referred to would in any event have employed a gardener to do all this work. Since the trial judge was not in a position of special advantage in considering what inference ought to be drawn from the whole of the relevant evidence this Court is entitled to form its own view on this question and if necessary to substitute its conclusion for that reached by the trial judge. We are satisfied that this plaintiff, who was described in the evidence and in the findings of the trial judge as a workaholic, quite apart from his injuries would have elected long before the trial to employ a gardener to do this work. He made it quite clear that he had no interest in gardening. The evidence shows that he was able to get this work done by employing a gardener 4 hours a fortnight at a rate of $12 an hour. In our opinion the inference is compelling that the plaintiff and his wife would have regarded his time as far too valuable and far too scarce for him to do this work himself when he could employ someone else to do it at a mere fraction of the figure he could charge for his own time. There are other problems with this award of damages including the allowance over a thirty year period and the inclusion of part of the total award in the judgments in the first two actions when the plaintiff made no claim for future economic loss in those actions and on the evidence the plaintiffs back problems really flowed from the third accident. However it is not necessary to deal with these other issues. We would therefore disallow the sum of $15,570 awarded by the trial judge. Applying the same apportionment as the trial judge we would assess the damages as follows: (1) Accident No 1 \GROVERNMENT INSURANCE OFFICE OF NSW v HEALEY (Kirby P, Clarke and Handley JJA) Future Future out-of-pocket expenses General damages Impairment of earning capacity TOTAL (2) Accident No 2 TOTAL (3) Accident No 3 Out-of-pocket expenses out-of-pocket expenses General damages Impairment of earning capacity TOTAL i Interest should be added to these sums in respect of the past general damages. We would allocate approximately one third of the general damages to the past in each instance. In respect of the first accident we would allow interest for 5.5 years at 15.5 per cent on the sum of $850. The resulting sum, which in view of its size, we would also apply to the second accident, is approximately $725. In respect of the third accident interest should be calculated on $15,000 at 15.5 per cent for 4.25 years. This totals $9,881. In the result we would award $6,550.00 (including interest) in respect of each of the first two accidents and $116,832.40 in respect of the third accident. The orders we would make are as follows: In matters Nos 14159/83 (CA 699/88) and 16240/83 (CA 698/88): q) (2) (3) (4) (5) Appeal allowed; Judgment of Allen J set aside; Direct entry of judgment for the respondent against the appellants in the sum of $6,550.00 such judgment to date from 18 November 1988; The appellants are to pay the respondent's costs of the trial in the whole amount payable to him apart from Pt52 r24(3) but limited to: (a)Disbursements for filing fees and other Court fees, service charges (if any) and charges for obtaining certificates (if any) under the Motor Vehicles (Third Party Insurance) Act, 1942, of the Motor Traffic Act, 1909. (b)Preparation and engrossment of pleadings and other documents required by the Rules of Practice Notes to be filed and engrossment of copies for service; (c)Any attendance for filing or other attendance for service or otherwise except where any such attendance was at or nearly at the same time as a like attendance in respect of proceeding 16168/83. Respondent to pay appellants' costs of the appeal and to have a certificate under the Suitors' Fund Act. 75.00 2,500.00 3,250.00 5,825.00 5,825.00 2,101.40 1,350.00 45,000.00 106,951.40 120,961.40 12 UNREPORTED JUDGMENTS In matter No 16168/83 (CA 697/88): (1)Appeal allowed; (2)Judgment of Allen J set aside; (3)Direct entry of judgment for the respondent against the appellant in the sum of $116,832.40 such judgment to date from 18 November 1988; (4)The appellant is to pay the respondent's costs of trial, such costs to be taxed on the basis that the brief on hearing is deemed to have included one copy of each of any document relating to any one or more of proceedings 14159 of 1983, 16240 of 1983, 18455 of 1985 or 18457 of 1985 (the related proceedings) a copy of which document was contained in that brief or contained in any brief on hearing delivered in respect of any one or more of the related proceedings and on the basis further that the conference on brief on hearing in proceeding 16168 of 1983 is deemed to have included any conference on brief on hearing in respect of any one or more of the related proceedings and on the basis further that the whole of the time of hearing was in respect of proceedings 16168 of 1983 without any apportionment thereof to the related proceedings and on the basis further that all medical examinations, whether on behalf of the Plaintiff or on behalf of the Defendants, were in respect of proceedings 16168 of 1983 without any apportionment to the related proceedings. (5)Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act. In matters Nos 18455/85 (CA 695/88) and 18457/85 (CA 700/88): Appeals dismissed. No order as to costs. Counsel for the Appellant: P Webb QC and K Rewell Solicitor for the Appellant: GM Meadow, Solicitor for the GIO Counsel for the Respondent: D Rofe QC and R Grace Solicitors for the Respondent: GH Healey and Co