COLEMAN v NEWBY SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CLARKE, MEAGHER and HANDLEY JJA 12 November 1991, 12 November 1991 [1991] NSWCA 59 Motor vehicle accident; Interest; Future economic loss. Facts: Respondent police prosecutor injured in motor vehicle accident. Appeal on interest on past general damages, and future economic loss. Held: (1) An interest rate must be averaged over the whole of a period. (2) The difference in figures which the trial judge found, and ought to have found as regard future economic loss is so slight it ought to be disregarded. MBP (SA) Pty Ltd v Gogic (1990) 171 CLR 657 Bennett v Jones (1977) 2 NSWLR 355 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Clarke JA I will ask Meagher JA to give the first judgment. Meagher JA In this matter the appellant, who was the defendant, appeals from a judgment of his Honour Acting Judge Garling delivered on 8 March 1991 in favour of the plaintiff and arising out of a motor vehicle accident which occurred on 7 July 1983. The total verdict given by his Honour was $466,401.33. The defendant's appeal relates to two issues only, being components of the total figure. The first issue is interest on past general damages. When his Honour gave judgment the High Court decision in MBP (SA) Pty Ltd v Gogic (1990) 171 CLR 657 had been delivered. That case has been taken to require the Courts to use an interest figure of 4%. However, this Court decided in Bennett v Jones (1977) 2 NSWLR 355 that the rate must be averaged over the whole of the period. In the present case his Honour, probably inadvertently, applied the 4% figure over the whole of the period and did not average it. He should have done so and the appellant is correct in saying on that account damages should be reduced by the amount of $6,128. The appellant's submissions on this point require, in my view, acceptance. The second and remaining issue on which the appellant appealed was a question of future economic loss. The plaintiff was in the police force and was a police prosecutor. At the time of the accident he was a sergeant third class. The evidence of Mr Wedderburn was that he would almost certainly have been a senior sergeant by mid 1990 and would probably have been a chief inspector. The promotional expectations of the plaintiff must have been very considerable indeed. The appellant has submitted to us that his Honour in coming to the conclusion which his Honour did failed to discount the possibility that the plaintiff would not have become chief inspector. He has drawn our attention to what the High Court said in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. In my view, this evidence, which has been shown to us by Mr Neil, for the respondent, makes it fairly clear that the plaintiffs attainment by mid 1990 of the status of senior sergeant was so high as to be practically certain. If that had been 2 UNREPORTED JUDGMENTS so, the starting point for a calculation of future economic loss would have been $437,660. His Honour's calculation used in respect of this head of damages a starting point on the assumption that the plaintiff would be chief inspector. On that assumption his Honour used the figure of $474,480. I agree with what Mr Neil has put to us, that if one is to discount for the possibility that there is no promotion one should deal with the question of discounting the difference between the sum which he would have been entitled to if he had become chief inspector and the sum to which he would have become entitled as senior sergeant, a difference of only $36,820. The calculations which Mr Neil has put to us ultimately amount to this. If one takes a figure on the assumption the plaintiff could be promoted to chief inspector by the age of sixty, one gets a figure of $474,480. If one discounts that by 208 - that is, 20% of the $36,820 figure, being the difference between the chief inspector figure and the senior sergeant figure - one subtracts $7,364, leaving a figure of $467,116. One then deducts from that the value of present capitalised earnings, which his Honour found at $168,800, a figure which has not been challenged, and one obtains the figure of $298,316. If one deducts from that 15%, for ordinary vicissitudes, one deducts a figure of $44,747. On that basis, the figure of $253,569, which is only about $1,000 different from the figure of $255,000 which his Honour in fact found. Such a difference, in my view, is so slight that it should be disregarded. For those reasons, I would reject the appeal. In my view, therefore, the orders which should have been made are: 1. The appeal be allowed. 2. The judgment be set aside. 3. That in lieu of the judgment for $466,401.33 there be substituted judgment for $460,273.33. Clarke JA I agree. Handley JA I also agree. Clarke JA The order of the Court will be that the appellant is to pay 75% of the respondent's costs of the appeal. The orders otherwise will be as Meagher JA has indicated. To clarify, the judgment should date from the original judgment. The order that the appellant pay the respondent's costs of the trial should stand. 1. The appeal be allowed. 2. The judgment be set aside. 3. In lieu of the judgment for $466,401.33 there be substituted judgment for $460,273.33. 4. Appellant to pay 75% of the Respondent's costs of the appeal. Counsel for the appellant: C Barry Solicitors for the appellant: Glover and Glover Counsel for the respondent: P Neil Solicitors for the respondent: Hamer and Hamer