GOVERNMENT INSURANCE OFFICE v LAZAR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 18 June 1991, 18 June 1991 [1991] NSWCA 123 DAMAGES — interest on non-economic pre-trial damages not assessed at commercial rate (MBP (SA) Pty Ltd v Gogic (1991) 65 ALJR 203) — future economic loss — likely retirement age estimated by reasonable conclusion from material before court -costs. Priestley JA This is an appeal in a personal injuries claim. It is unnecessaryto mention the facts of the matter in any detail because there is only one live issue in the appeal and it is possible to deal with that very shortly. Judgment was given in two sets of proceedings by Enderby J on 21 June 1990. One set of proceedings was against the Government Insurance Office and the other against individual defendants. Liability was admitted in both proceedings. Because of the judgment handed down in the High Court this year in MBP (SA) Pty Limited v Gogic (1991) 65 ALJR 203 and because subsequently to that judgment the defendants who had earlier caused a Notice of Appeal to be filed on various grounds, sought to raise the Gogic point, the plaintiff/respondent sensibly agreed that there should be an adjustment to the damages awarded in each case downwards to reflect the position declared by the High Court in Gogic. When the appeal came on for hearing today the court was told that all the original grounds of appeal in both matters had been abandoned and that new grounds of appeal were proposed which the respondent in each case consented to being used in replacement of the original grounds. The first two grounds raised the Gogic point. The third ground raised the point that was argued; that point arose because there had been a claim for future economic loss in both cases. The trial judge had included in his award of damages an amount for future economic loss in which he took as one factor the probability that the plaintiff/respondent would have worked until ages sixty-two and a half. The point of the appeal was that there was no evidence to support that finding of the trial judge. It was, however, conceded on behalf of the appellants, in light of Dykstra v Head (1989) ATR 68,984, a decision of this court, that to the extent that the judge's calculations involved an assumption of retirement from work at sixty years of age, the appellants raised no point. Thus, the point in issue in the appeal came to the question whether, although the judge was, on the argument, entitled to use the sixty year figure in his calculations, he was wrong in using the figure of sixty-two and a half. In support of the submission that he was wrong in this way, reliance was placed on Dykstra v Head as authority for saying that in the absence of specific evidence by or on behalf of a plaintiff upon which a trial judge could found a finding of fact about the age to which the plaintiff would be likely to work, no age higher than sixty in the case of a female could be taken. Although I can see how some of the expressions in Dykstra might give rise to such a submission I do not think the case is authority for the proposition contended for. In my opinion the proper rule is that in deciding on an age to be 2 UNREPORTED JUDGMENTS used in calculating loss of future earnings, an age to which in the trial judge's opinion, a plaintiff should be considered as having been likely to work, the court is bound to act upon the material before it and is bound to draw a reasonable conclusion from the material before it. The material before the court, however, need not be as precise as the submission before the appellants in the present case would require. In the present case the material upon which the trial judge acted was referred to in his reasons. He mentioned that on the plaintiff's next birthday after the hearing she would be fifty-four. The plaintiff had given evidence that she wanted to work, that in the circumstances in which she found herself, were it not for the injuries that she had suffered, she would have, for various reasons, wanted to work outside her home. Further, a witness was called whose evidence was that he had suitable work for the plaintiff, and that he had regarded her as an excellent worker. If she were able to work at the time of the trial he, somewhat flamboyantly, said "in front of all these witnesses I would employ her for as long as she lives, as long as she works and I guarantee to employ her 100 per cent." In addition to these pieces of evidence the trial judge had also seen the plaintiff in the witness box. In these circumstances what the judge said was that the plaintiff would normally expect to retire at an age of somewhere between sixty and sixty-five, and, "I propose to proceed on the basis of approximately 8.5 years"; he then stated other matters relevant to the calculation. It seems to me that on the basis of the materials that I have summarised it was well open to the trial judge in light of the approach that I earlier indicated, to treat the case as a proper one in which to take the figure of 62.5 for the purposes of his calculations in the way that he did. In Dykstra v Head Samuels JA referred to an earlier decision of this court, Kolotex Glo-Sales Pty Ltd v Tolic (unreported, 4 December 1986) in which he, Mahoney JA and McHugh JA took part, in which he made remarks which, to my mind, support the view that I have expressed. That case was somewhat different in its facts from the present one but as Samuels JA there put it, the question was whether there was material before the trial court enabling the figure arrived at to be used. In the present case I am quite satisfied that there was such material and I do not think the point relied upon by the appellants should be upheld. Counsel had very sensibly prepared two different sets of orders and handed up written versions of them to the court. One set of orders dealt with the position that would have arisen if the appellants' live point had been upheld. The other set of orders deals with the position which would obtain if my reasons are agreed with - which all the signs are that they will be by my colleagues - and I would propose that the court adopt those orders. The last of the orders, under the heading "Suggested Orders if Appeal Succeeds on Grounds One and Two only", order Fourth, was the subject of contest. That order which was proposed by the appellants in the event that they lost on the life issue was that the respondent pay the costs of the appeal because there is going to be a reduction in the amount of the damages in each of the cases as a result of the agreement flowing from the decision in Gogic. Counsel for the appellants was asked to make submissions to the court in support of that proposed order. Basically the submission was that since the appellants had been successful in regard to the Gogic grounds, they should have their costs of the appeal. Details were given to the court of when it was that the present stance of the appellants was made known to the respondent. URJ GOVERNMENT INSURANCE OFFICE v LAZAR (Handley JA) 3 I think it is sufficient to say that the appellants should lose, in my opinion, on the substantial point that has been argued before the court today, and the time at which the Gogic points were first brought to the attention of the respondent and the circumstances between then and the actual hearing of the appeal are not such as to incline the court to made the respondent bear any of the costs of the appeal. Therefore, in my opinion, the orders which should be made are as follows: 1. Appeal allowed in each set of proceedings. 2. Judgments of Enderby J in each set of proceedings to be set aside and in lieu thereof in proceedings 15009/85 there should be judgment for $129,604 with effect from 21 June 1990, and in proceedings 15008/85 there should be judgment for $119,874 with effect from 21 June 1990. 3. The appellants to pay the respondent's costs of the trial in each set of proceedings. 4. The appellants to pay the costs of each appeal. Clarke JA I agree. Handley JA I also agree. I will just add some short reasons of my own. In this case the trial judge awarded damages on the basis that but for her injuries the plaintiff would have worked until approximately aged sixty-two. The plaintiff gave no direct evidence as to her intentions in this regard but the trial judge drew that inference partly, it seems to me, because of the plaintiff's expressed preference for working away from her home and also because of some evidence which her employer, a Mr Yohana, had given that he would have been prepared to give the plaintiff work as long as she lived, as long as she worked, and he expressed the view that it was clear to him that if the plaintiff had been fit to do so, she would have taken up that offer of employment. In those circumstances, it seems to me, that although, as I have said, the direct question was not asked of the plaintiff by her counsel when she was in the witness box, there was material before the judge on which he could find on the balance of probabilities that the plaintiff would, at least, have worked until approximately aged sixty-two but for her injuries. In some cases, however, it may be appropriate where the direct question is not asked of the plaintiff to apply the so-called presumption of fact referred to by this court in earlier decisions that women are likely to retire from work at or about the age that they become entitled to the old age pension. Subject to those matters, I agree with Priestley JA's decision, judgment and the orders he has proposed. 1. Appeal allowed in each proceeding. 2. Judgments set aside and substituted judgment for $129,604 in proceedings 15009 of 1985, and $119,874 in proceedings 15008 of 1985 with effect from 21 June 1990. 3. Appellant to pay costs of trial in each proceeding. 4. Appellant to pay costs of each appeal. Counsel for Appellant: H J Mater Solicitors for Appellant: Solicitor for GIO NSW Counsel for Respondent: C T Barry Solicitors for Respondent: Teakle Ormsby and Associates