STENNING v JOHNSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and HANDLEY JJA 8 April 1991, 18 April 1991 [1991] NSWCA 262 DAMAGES — personal injury — motor vehicle collision plaintiff suffers serious whiplash injury — injury and disabilities cause pain and depression — plaintiff suffers abnormal functional reaction — trial judge (Whealy A-DCJ) allows $200 per week for twelve years for future economic loss — enters judgment for $355,429.29 — held: (1) On the evidence accepted at the trial, the plaintiff had demonstrated a greater earning capacity than that allowed by the trial judge; (2) The error in the over-estimation of loss of earnings and earning capacity required the setting aside of the judgment; (3) The parties invited the Court to reassess and the Court could safely do so and should do so; (4) On a re-assessment, the loss of earnings predicted should be reduced from $200 per week to $100 per week; (5) Other grounds of appeal rejected; interest recalculated in accordance with MBP (SA) Pty Ltd v Goaic, HCA, 26 February 1991 unreported; Bennett v Jones and Anor [1977] 2 NSWLR 355, 371 (CA) applied; (6) Substituted judgment of $229,597.70 entered. Kirby P I agree with Clarke JA. Clarke JA On 15 December 1989 Associate Judge Whealy entered judgment in favour of the plaintiff in the sum of $355,429.29. The defendants have appealed from that judgment on the grounds that the assessment was excessive. The plaintiff, who was 22 at the time, was injured on 31 October 1980 when her stationary vehicle was struck from behind in Oxford Street, Paddington, and she was thrown forward and then back with her head crashing into the headrest. She received a number of injuries in the accident only one of which was of significance. That was a whiplash injury which caused her a great deal of pain and which continued to disable her to a significant extent until the date of trial. In addition she has suffered, as a consequence of her injuries, from depression which has at times been very serious. I would add that the picture painted by the evidence is an unusual one insofar as, although the plaintiff has appeared to take a positive view of the improvements in her condition from time to time, she suffered an abnormal functional reaction of great severity. Dr Woodforde, a psychiatrist, who saw her on 27 June 1983 noted: "Dr Henry Hudson gave the opinion that the physical injury which she suffered was not a severe one from the organic point of view. He also suggested that she suffered an 'abnormal functional reaction following the injury'. I would agree with this opinion, and I consider that a great deal of her disability has been due to an anxiety reaction to the physical problems which she encountered which have largely resolved now." At that time she still exhibited, according to Dr Woodforde, "a great deal of emotional lability, poor concentration, headaches and some insomnia...". It is apparent from the plaintiff's evidence, which was accepted by his Honour, that she had continued to suffer greatly from her problems until the trial although the court was faced with a difficulty in assessing the degree of disability because of the large functional element. 2 UNREPORTED JUDGMENTS The damages awarded by his Honour were made up as follows: Out-of-pocket expenses 3,910.70 Past Wage Loss (excluding period overseas) as per $109,258.00 Ex M Less actual earnings 11,000.00 98,258.00 Interest at 7% from 31.10.80 to 15.12.89 68,441.41 $166,699.41 General Damages Past 35,000.00 Interest at 2% from 31.10.80 to 15.12.89 24,379.18 Present and Future 20,000.00 Future Economic Loss $200.00 per week for 12 years on 3% tables 105,440.00 TOTAL $355,429.29 The defendant challenged the allowances for general damages and the impairment of the plaintiff's earning capacity, both past and future. It is convenient initially to turn to the complaint about the award of General Damages which was in the amount of $55,000 together with interest, calculated at 7 per cent, in an amount of slightly under $25,000. Counsel for the defendants submitted that his Honour failed to accord due weight to evidence given by the plaintiff concerning her improvement and that his failure to reflect what should have been the true view of her condition as at the time of trial resulted in an excessive award of damages both for the past and for the future. There is no doubt that the plaintiff said to the doctors on a number of occasions that she was improving. For instance, Dr Woodforde noted that in her history she acknowledged that there had been a remarkable physical recovery in the first half of 1983. Likewise when she came to give evidence she made claims to be well on the road to recovery in a number of areas of her physical complaints. His Honour noted an example in which she said that so far as her moods were concerned "in the last three years since I began the auto-traction and changed my treatment, there has been a huge difference". At the trial counsel for the defendants submitted that his Honour should accept those various statements as to recovery at face value. On the other hand counsel for the plaintiff urged his Honour to approach such statements with caution. His Honour preferred the latter viewpoint saying "she is the very opposite of the traditional malingerer, that is to say she shows a determination to recover her health which is not always equalled by the rate of recovery itself". Upon the hearing of the appeal counsel for the defendant noted that his Honour had found that the plaintiff was inclined to overstate the improvement in her physical and mental condition and submitted that there was no basis upon which this approach could be supported. He submitted that the plaintiff was an articulate and educated person who expressed herself carefully and precisely throughout URJ STENNING v JOHNSON (Clarke JA) 3 her evidence. She was, according to this viewpoint, plainly aware of the significance of the evidence she was giving and she was also careful at all times to furnish doctors with detailed and precise histories of, inter alia, her injuries and disabilities. Counsel for the defendants submitted that in the light of these facts his Honour was in error in failing to accept the plaintiff's own assessment of her condition at face value. These submissions encounter a fairly fundamental problem. The plaintiff gave evidence on two separate occasions and her evidence occupied a substantial part of the time involved in the hearing. His Honour was accordingly very well placed to assess the plaintiff, not only in regards to her credibility, but in every material respect. His judgment that her assertions of continuing recovery should be treated with caution seem to me to be based on two factors. First, a comparison between the statements which she made from time to time to the effect that she was recovering substantially and the apparent lack of any significant improvement in her condition and, secondly, his assessment of the plaintiff herself. His Honour undoubtedly enjoyed an advantage over this court in that he saw the plaintiff and was able to assess her. In Abalos v Australian Postal Commission, 65 ALJR 11, McHugh J said (at 16): "Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion'." For my part I am quite unable to say that his Honour misused his position of advantage or failed to appreciate the significance of the plaintiff's assertions of continuing improvement. Nor, having regard to the limitations placed upon an appellate court when confronted with grounds of appeal asserting that a trial judge ought, or ought not, to have accepted particular evidence of a witness, do I consider that it is open to this court to conclude that his Honour erred in expressing the need to exercise caution in regards to the plaintiffs evidence of improvement. In addition far from the evidence demonstrating that the trial judge failed to use, or palpably misused his advantage (SS Hontestroom v SS Sagaporack 1927 AC 37, at 47) the totality of the evidence tends to support his Honour's approach particularly when it is understood that the path of improvement discernable from the various complaints made by the plaintiff from time to time stood in stark contrast to her assertions of significant or great improvement. The defendants' second difficulty is that it was of course open to his Honour to accept or reject all or part of the plaintiff's evidence provided that there was good reason to take the course which he followed. His actual conclusion did not involve the rejection of the plaintiff's evidence but demonstrated his inability to accept that her assertions of significant improvement, taken at face value, reflected the true position. The note of caution which his Honour indicated should be exercised reflected, in his view, the realities of the totality of the evidence against which these claims of improvement had to be measured. The plaintiff had, prior to the accident, been a happy well adjusted, enthusiastic girl with a high degree of physical and sporting ability. There was substantial evidence to that effect which his Honour accepted. Following the accident the picture changed and changed dramatically. As his Honour said "her life became attended with pain, discomfort, inability to think clearly, confusion and ultimately anxiety and deep depression." The plaintiff's own evidence, that of her 4 UNREPORTED JUDGMENTS family and the medical evidence from doctors retained on both sides is supportive of this picture of the plaintiff who was accepted by the defendant, as his Honour noted, as "a completely genuine person". She presented at trial as a person who still suffered from a range of disabilities which affected her life on a day to day basis. This picture of the plaintiff simply did not sit comfortably with the notion that she was improving greatly, or even moderately, on the many occasions when she made those claims. For my part his Honour was correct to conclude that the totality of the evidence demonstrated that the plaintiff was continuing to suffer to a greater extent than her claims of improvement would indicate. It follows that the challenge to the assessment of general damages, which was based solely on the suggested error I earlier indicated, must fail. The defendant then challenged the allowance of interest on past general damages at 7 per cent. It was submitted that consistently with MBP (SA) Pty Ltd v Gogic, (High Court of Australia, 26 February 1991, unreported) interest should be allowed at a basic rate of 4 per cent only. In this context it was pointed out that, as the damages for past pain and suffering covered a period of more than nine years, it was obvious that some portion of that award for past general damages related to more recent years and some to the earlier period. For this reason it was necessary, according to the argument, to follow the well established practice of either halving the appropriate interest rate and allowing interest to be calculated over the whole period or allowing interest at 4 per cent only for half the period (Bennett v Jones and Anor, (1977) 2 NSWLR 355, at 371-2). In this way, it was said, the court is able to accommodate, in a broad fashion, the fact that interest would be calculated on the whole amount of the past general damages for the whole period prior to trial despite the fact that the sum awarded compensated the plaintiff for damage continuing over the whole of that period. These submissions are, broadly speaking, correct. The approach which Bennett supports is consistent with Gogic and will require that the Court reassess the interest on general damages. The parties agreed that the appropriate rate of interest in this particular case was 4 per cent and, in the absence of any suggestion that any other rate should be applied, I will act in accordance with that agreement. The next challenge concerned the allowance of $98,258 in respect of past economic loss. It was said, correctly I think, that his Honour treated the plaintiff as though she were totally incapacitated for work during the period between the accident and the trial except when she was overseas on a holiday or actually gainfully employed. The defendants' counsel submitted, again correctly in my view, that the evidence did not justify a finding of total incapacity for work during that period. Both the plaintiff and the doctors gave evidence that she was fit for selected types of work during that period and the reality is that she was able to work in a number of jobs, albeit with some difficulty, and in the latter years had not been forced to give up jobs in which she was employed because of any incapacity. Her history following the accident seems to have been as follows. After resting for about two weeks she returned to her position as a sales representative with Philip Morris and remained there until July 1981 when she resigned as a result of persisting disabilities. She did, however, continue her course at the Six Eighty Drama School from which she graduated in August 1982. She was unemployed URJ STENNING v JOHNSON (Clarke JA) 5 for the remainder of 1981 and the early part of 1982. At this time she commenced employment with Radio Station 2UW, working in promotions, but was unable to keep up that work beyond mid 1982. She was unemployed for the next twelve months at the end of which she travelled to Europe and America for a holiday. She returned from that holiday in July 1984 and later that year was successful in gaining a position in the cast of a stage production apparently called "Fusion". This show was sponsored by various Government bodies and the plan was that it would travel throughout Australia for a period of 12 months commencing in 1985. The starting place was Melbourne and the plaintiff went there for rehearsals. These were planned to continue for six weeks. The show involved singing, dancing and acting and the plaintiff quickly found that she was in difficulty. She persisted for a while but eventually was forced to pull out of the show in January 1985. She was then unemployed until August 1985 when she commenced employment with Enmore Art Gallery as a manageress earning approximately $300 per week. Her employment with the art gallery continued until the end of 1985 when it was terminated as a result of the owner selling the business. Following this she was unemployed until mid-1986 when she commenced employment with the Multiple Sclerosis Society organising fund raising events. In this employment she worked three days per week from 10 to 4 and earned about $160 per week net. She left that job in December 1986 for reasons which were not disclosed in the evidence. Certainly she did not say that she was unable to continue with the job and, although she gave evidence of difficulties she was having while working with the Multiple Sclerosis Society, the trial judge did not find that she was forced to give up the work because of her disabilities. This is understandable as the plaintiff did not make that claim and there was no evidence upon which an inference could properly be drawn that she was unable to continue working in that job. At the commencement of 1987 she enrolled at the College of Arts, in a course in which she had originally enrolled in 1979, and during the next two years she undertook that course. At the same time she commenced theological studies at the Moore Theological College. She did this by means of an external course studying one subject a term and at the time of trial was still involved in the course. She said that she intended to complete it and hoped that at the end of the year (1989) she would have her preliminary Theological Certificate. Her purposes in studying art and theology were to further her chance of obtaining employment in the area, as she described it, of "arts and theology". Following completion of her art course at the end of 1988 she continued on with the course at Moore Theological College and sought employment. Her efforts extended over many months but she had been unsuccessful at the time the trial started in May 1989. (It commenced in May, was then adjourned, part heard, until December when it was concluded.) She did, however, find some part time promotional work with distributors of homeopathic products for a short time after the initial hearing. Following the termination of this employment she decided to cease seeking employment and to concentrate full time on her art. The evidence does not demonstrate when this occurred but she had secured a studio in about November 1989 and was working there at the time of the adjourned hearing. Having surveyed the evidence his Honour made this finding: "The reality I accept is that she has not been able to work up to the present time except for brief periods and even then with restriction and difficulty. I also accept she has made reasonable efforts to rejoin the workforce within the confines of her 6 UNREPORTED JUDGMENTS limitations.... In my opinion, the plaintiff is entitled to a wage loss calculated on the basis of the figures set out in Exhibit 'M' (Schedule of wages of employees in Philip Morris) subject to a deduction for the amounts she has been able to earn in jobs such as the Enmore Art Gallery, Multiple Sclerosis Society etc. With some hesitation I have decided that the plaintiff is not entitled to a wage loss for the period when she was overseas." The defendants submit that his Honour was in error in treating the plaintiff as totally incapacitated when the evidence demonstrated that she had retained throughout most of the period a residual capacity for work. It is true that in 1985 she demonstrated a capacity for work when she successfully managed employment at the Enmore Art Gallery. It would also appear to be clear that thereafter she retained a capacity to perform various sorts of work. But that does not mean that his Honour was bound to disregard her attempts to obtain employment and her lengthy periods of unemployment in determining the appropriate compensation. The principle upon which damages are awarded in respect of impairment of earning capacity is that a plaintiff is entitled to be compensated to the extent that the diminution in her earning capacity is or may be productive of financial loss. This is well established but if authority for the proposition be required I need only cite from the judgment of the majority in Graham v Baker, 106 CLR 340, at 347: "To be more precise, however, an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss." It follows that his Honour was required to determine the extent to which the plaintiff's partial incapacity for work from mid 1985 onwards had been productive of financial loss. Where, as in this case, the plaintiff had made reasonable efforts to gain employment within her capacity but had been unable to do so for lengthy periods it seems to me clear that she established that her impairment produced a total loss of earnings in those periods. Accordingly, I am unable to agree that his Honour's general approach was erroneous. That is not, however, the end of the matter. His Honour allowed total loss of earnings for the whole of the period between accident and trial except the times when the plaintiff was overseas or in employment. That means that his Honour allowed that loss during the two years when the plaintiff had opted to leave the workforce and to study full time at the College of the Arts. During this period she was not in a position to undertake gainful employment and that situation resulted from a voluntary decision of her own. Iam unable to accept that it could properly be found that her impaired earning capacity produced any earnings loss during this period. In some circumstances it may be permissible to award a plaintiff economic loss for the time when she voluntarily undertakes a course of study. For instance, if the evidence was to the effect that the plaintiff had been unable to secure employment after months of endeavouring to do so and had turned to study only when it became apparent that she could not get employment it may be that a case could be made out for awarding economic loss during the period of study. But that is not this case. The plaintiff was employed until December 1986 and almost immediately upon giving up that employment enrolled in the College of the Arts. On one view she ceased her employment in order to take up her studies but my conclusion is not based upon an acceptance of that view. The simple position is that she ceased employment and thereafter commenced studies. In these circumstances I do not think that an award for economic loss for the period in which she was engaged URJ STENNING v JOHNSON (Clarke JA) 7 in those studies can be sustained. Accordingly, it will be necessary to deduct the amount awarded in respect of that period from his Honour's allowance. That deduction also requires that an adjustment be made to the credit of $11,000 representing actual earnings which his Honour took into account. It would seem that his Honour included in that sum moneys paid to the plaintiff by the Commonwealth Department of Education under the Austudy Scheme (the evidence of earnings supported a lower figure). Accordingly, the credit of $11,000 will also need to be reduced by the amount of the net payments to the plaintiff for Austudy. In the result a credit should only be allowed for $8,080. Finally, the defendants submitted that his Honour erred in allowing $105,440 in respect of the impairment of future earning capacity. In this respect his Honour accepted that the plaintiff would be disabled for full time work for a period subsequent to the date of trial but did not think that this handicap would persist for the remainder of her working life. Repeating the need to exercise caution in accepting the optimistic views articulated by the plaintiff as to her rate of recovery he found that she would be fit for work involving a maximum of three or four days per week (and perhaps for limited hours on those days) for a period of time not in excess of twelve years from the date of trial. In assessing the allowance that should be made for that period his Honour observed that if she had still been employed at Philip Morris at the date of trial she would have been earning a net weekly salary of $326.00 and that, given the limited amount of weekly work that she could do in her diminished state, she was likely to lose approximately $200 per week until she had fully recovered. His Honour therefore allowed a loss calculated at the rate of $200 per week for 12 years and capitalised using the 3 per cent tables. No allowance was made for vicissitudes. The reason given by his Honour for declining to make any such allowance was that that factor had already been fully taken care of in the adoption of a 12 year working period. Counsel for the defendant challenged the weekly amount allowed, the period of 12 years, and the failure of his Honour to discount for vicissitudes. The task of assessing damages for the impairment of earning capacity following the trial is always a difficult one and requires that the court "make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances in the amount of damages which it awards (Mallett v McMonagle, 1970 AC 166, at 176). 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.... 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 (Malec v J C Hutton Pty Ltd, 64 ALJR 316, at 318). For obvious reasons it would be quite wrong to attempt mathematical precision. What the court is obliged to do is to consider first the chances that the impairment of earning capacity will continue and, if so, for how long, and then the likely adverse financial consequences to the plaintiff resulting from that impairment. Provided that there is no demonstrable error in a trial judge's approach or factual findings an appellate court will, in general, be slow to interfere with the ultimate finding for the simple reason that it reflects the exercise of a discretionary or quasi discretionary function (Moran v McMahon, 3 NSWLR 700, at 723). 8 UNREPORTED JUDGMENTS Counsel for the defendants submits that Whealy AJ's assessment in this case was flawed by error insofar as the evidence did not support the finding that it was probable that the plaintiff would continue to suffer from an impaired capacity for twelve years from the date of trial. In support of that submission counsel referred the court to some expressions of opinion by doctors called on behalf of the defendants. I do not think that this submission should succeed. There was a deal of evidence which supported the conclusion that the plaintiff would continue to suffer from marked disability for a lengthy period from the date of trial and there was nothing in that evidence which would indicate that twelve years, or even slightly longer given the fact that it contained an in built factor to allow for vicissitudes, was excessive. Quite apart from that evidence, to which I will refer in a moment, there was the simple fact that the plaintiff was still significantly disabled at the time of trial and had been so disabled, although improving from time to time, for over nine years. Dr Richmond who saw the plaintiff in the years between 1981 and 1984 concluded in October 1984, that "It was quite possible that she may continue to have symptoms in these areas (cervical, dorsal and lumbar spines) for years to come." Dr Rivett who first saw her in 1985 concluded that she was then "unfit for heavy work, for repetitive jobs and for prolonged sitting and standing such as clerical work''. He was of opinion that she would be effected in the long term but thought that she would be aided by repeated spinal manipulations. When he saw her in 1989 he noted that the cervical spine was stiffer than it had been in 1985. He said that "There is evidence of continuing strains in all three regions of the spine, not much different from when previously examined". He concluded that she was unfit for heavy work, bending, prolonged sitting or standing and repetitive or concentrated hand work. Dr Spence, whose reports were tendered by the defendant, said in 1989 that he thought she could have had a soft tissue injury to her neck. Noting that there was a large emotional and functional element involved he observed that she did seem to have symptoms increasing in severity since he first saw her in 1982. True it is that other doctors whose reports were tendered by the defendant took a more optimistic view. For instance, Dr Ireland observed in 1989 that "once her attention is diverted from this matter these symptoms are going to disappear". That simply means that there was clearly a conflict between the opinions expressed in the medical reports but this is not unusual. When this occurs the trial judge is bound to decide which of the opinions he prefers (and in cases such as the present where those opinions were expressed in medical reports he is at a distinct disadvantage in that the various opinions had not been subjected to any testing) and in carrying out that task the path of the plaintiffs pre-trial medical history, as he finds it, is often his greatest aid. For instance in a case where a doctor says in 1984 that the plaintiff will have recovered by 1986 and the evidence, which is accepted, demonstrates that she is still greatly disabled in 1989 the trial judge would have little difficulty in rejecting that opinion. Similarly the trial judge will no doubt be aided in his evaluation by his assessment of the plaintiff, particularly in a case in which there are functional elements. In this case it is clear that he was. He accepted her as a genuine person who, despite or, perhaps, because of the functional complications, had suffered severe disability for a very long period of time. In those circumstances it is not surprising that he thought she would continue to have troubles for a relatively URJ STENNING v JOHNSON (Clarke JA) 9 lengthy period in the future. It seems to me that on the whole of the evidence in this case it was well open to Whealy AJ to take the view that the plaintiff would suffer from an impaired earning capacity for many years in the future and bearing in mind the impossibility of fixing a precise or accurate period of disability the approach which involved building into the period of allowance a factor for vicissitudes cannot, in my opinion, be faulted. However, the adoption of a continuing loss of $200 per week is more questionable. The plaintiff had demonstrated in 1985 when she worked at the Enmore Art Gallery that she could undertake employments which would return her remuneration at least as large as she could have gained in employment with her pre accident employer. There thus was, at the time of trial, a theoretical possibility that she could have undertaken employment in her disabled state which returned her an income of a dimension which denied the existence of any economic loss from her impaired capacity. However it would have been wrong in my view to deny her an award for her future impaired capacity because of that theoretical possibility given her reasonable attempts to find suitable employment and the limited extent of her successes in finding adequate jobs. Clearly an award which was reasonably significant was required to compensate her for the greatly disadvantaged position in which she found herself on the labour market. On the other hand she also demonstrated a capacity in 1986 to earn about $160 in part time work. In the light of the schedule of earnings of an employee at Philip Morris it is clear that a comparable figure in 1989 would have been about $200. In addition her physical state had, on any view, improved to a significant degree between 1986 and 1989. In these circumstances, and bearing in mind that in 1987 and 1988 she did not work by choice and for a short period prior to the date of trial was again not seeking employment, it is my opinion that it was erroneous to conclude that her impairment was likely to result in a loss of about two thirds of the income she otherwise could have earned. I accept that there was likely to be significant loss but I do not think that the evidence justifies a finding that she was likely to suffer financial detriment in excess of one-third of her earnings. In my opinion the allowance of $200 per week reflected error and the evidence in the case justified an allowance of no more than $100 per week. Accordingly, this element of the damages requires reassessment. I would add that these conclusions require the rejection of the argument articulated in the notice of contention, the thrust which was that his Honour should have determined that the plaintiff had established that the impairment of her earning capacity was permanent and that even if $110 per week was the appropriate measure of loss the amount actually awarded was appropriate. I conclude therefore that the court should set aside the judgment of Whealy AJ. The question which then arises is whether the court should remit the matter for hearing to the District Court or reassess the damages. Both parties have asked the court to carry out the reassessment exercise and I see no difficulty in complying with their requests. Accordingly the Court should reassess the damages. The allowance I would make for past wage loss is $70,342 which I calculate as follows: The trial judge allowed loss of earnings in accordance with Exhibit M at $109,258. Included in that amount was a figure of $30,836 for the years 1987 and 1988. This figure should be deducted, in accordance with my findings, from the former resulting in a net figure of $78,422. There is also the need to make further deductions in respect of actual earnings which will not be $11,000 as found by his Honour but that sum less $2,920 for the reasons I have already given. By deducting the resultant figure of $8,080 from the provisional allowance 10 UNREPORTED JUDGMENTS one arrives at the figure of $70,342. Interest should be allowed on that figure at 7 per cent from 31 July 1981 (not the date of the accident which is the date adopted by his Honour) to 15 December 1989, a figure of $41,239. A rate of 4 per cent should be adopted for the interest calculation in respect of past general damages and, in accordance with the practice of the Court, it is appropriate to allow interest for the whole period at 2 per cent, which results in a figure of $6,386. The award for future economic loss should be $52,720. The damages should, therefore, be as follows: Out-of-pocket expenses 3,910.70 Past wage loss 70,342.00 Interest on past wage loss 41,239.00 General damages 55,000.00 Interest on past general damages 6,386.00 Future economic loss 52,720.00 TOTAL 229,597.70 Accordingly, in my opinion the following orders should be made: (1) Appeal allowed. (2) Judgment of Whealy AJ of 15 December 1989 set aside and in lieu thereof enter judgment for the plaintiff in the sum of $229,597.70 to take effect from the date of judgment at first instance. (3) Defendants to pay the plaintiff's costs of the trial. (4) Plaintiff to pay the defendants' costs of the appeal and to have a certificate under the Suitors Fund Act. Handley JA I agree with the judgment of Clarke JA. 1. Appeal allowed; 2. Judgment of Whealy A-DCJ of 15 December 1989 set aside and in lieu thereof enter judgment for the plaintiff in the sum of $229,597.70, to take effect from the date of the judgment at first instance; Defendants to pay the plaintiffs costs of the trial; and 4. Plaintiff to pay the defendant's costs of the appeal and to have a certificate under the Suitors' Fund Act. » Counsel for the Appellant: KP Rewell Counsel for the Respondent: PM Donohoe QC / A Kostopoulos Solicitors for the Appellant: Solicitor for Government Insurance Office of New South Wales Solicitors for the Respondent: Mannix Enright and Leitch