GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and MEAGHER JJA 17 and 21 August 1992, 29 October 1992 [1992] NSWCA 94 PRACTICE and PROCEDURE — judgment — following appeal to Court of Appeal — order not perfected — judgment not entered — application by party for order setting aside or varying the judgment and review thereof — complaint that judgment based upon failure of the members of the Court separately to determine the plaintiff's application to expand her cross appeal upon which rested the order for retrial favoured by Kirby P — complaint that Kirby P and Meagher JA (and possibly Mahoney JA) erred in assuming that the plaintiff's fund of damages would be exhausted after nine years — evidence suggests exhaustion after about 25 years — plaintiff's life expectancy accepted as 61 years — whether argument forbidden by Todorovic and Anor v Waller (1981) 150 CLR 402 — held: (1) The power to set aside or vary a judgment of the Court of Appeal is discretionary, one to be exercised rarely and only in exceptional circumstances having regard to the desirability of the maintenance of the finality of litigation. Smith vy New South Wales Bar Association [No 2] (1992) 66 ALJR 605 (HC); Rajski v Bainton, Court of Appeal, unreported, 18 February 1991; (1991) NSWJB 3 applied; (2) One ground for the reopening of an order or judgment pronounced was demonstration of a mistake or misapprehension going to the root of the judgment. State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29 applied; (3) To resolve differences of opinion in a collegiate court, and thereby to secure an order of the Court disposing of proceedings, it is open to the judge junior in seniority to agree with the orders of the senior judge. Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1977] 2 NSWLR 827 (CA) 866; O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 (CA) 641 applied; (4) As this had been done by Meagher JA in the instant case, and as it was adhered to, no error appeared warranting reopening; (5) Although error on the assumption of the depletion of the fund from 9 years was shown, it remained open to conclusion that the fund would be depleted in about 25 years which could result in an injustice to the plaintiff warranting the conclusion that she should have the opportunity, by evidence at a retrial, to challenge the consequences which followed from Todorovic and Anor v Waller (above); (6) Accordingly, (per Kirby P, Meagher JA concurring) no basis was shown to reopen the orders of the Court which were affirmed and should be entered without delay. (per Mahoney JA): Any suggested errors could be corrected at the retrial. JUDGMENT and ORDERS — setting aside before entry — challenge to judgment ordered by the Court of Appeal — concurrent application for special leave to appeal to the High Court of Australia — proper approach to application to set aside judgment — exceptional nature of — public interest in finality of litigation — whether exceptional case shown — whether demonstrated error such as to warrant reopening and review. Smith v New South Wales Bar Association [No 2] (1992) 66 ALJR (HC) 605 (HC) considered. DAMAGES — personal injuries — discount rates — calculation of present value of future loss of income — rule in Todorovic and Anor v Waller (1981) 150 CLR 402 — whether rule results in plaintiff with profound brain damage suffering serious injustice — whether plaintiff will be left "destitute" by exhaustion of fund — availability of arguments to plaintiff profoundly injured — errors shown warranting setting aside of judgment — whether, in exercise of 2 UNREPORTED JUDGMENTS discretion, Court should recalculate or order retrial — held: (confirming orders previously announced): Motion for review dismissed. Supreme Court Rules Pt40, R91); Pt51, R16. Kirby P The Government Insurance Office of New South Wales (the claimant) movesthe Court to exercise powers conferred upon it by Pt40 R9(1) of the Supreme Court Rules (SCR) whereby it: "\.. may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment." Ms Leah Rosniak (the opponent) opposes the application. It is therefore necessary to consider: (1) The principles governing the exercise of the exceptional jurisdiction invoked by the claimant; (2) The bases (substantially two in number) upon which those principles are invoked in this case; and (3) The conclusion to be reached either to refuse the application or, if it be granted, to conduct the review in the reopened proceedings in the manner required by the Rules, as explained in the High Court's recent decision in Smith v New South Wales Bar Association (1992) 66 ALJR 605 (HC), 608. The course of the proceedings. First, it is useful to say something about the course of the proceedings. The full description is contained in the judgments of this Court in Government Insurance Office of New South Wales v Rosniak, unreported, 17 July 1992. The opponent was severely injured in a motor vehicle accident in 1983 when she was eleven years of age. The claimant is liable in law for the negligence of the driver who caused the opponent's injuries. No dispute about liability troubles the case. Amongst the opponent's injuries were those which resulted in serious brain damage. In consequence, she is a disabled person. In respect of her affairs, an order was made by Powell J under the Protected Estates Act 1983. Additionally, in the view which I have expressed, the opponent is entitled to the protection traditionally afforded by the courts, in succession to the sovereign, as parens patriae in respect of persons with such profound disabilities. She is before this Court, which is not created by statute with strictly defined and limited powers, but is the successor to the sovereign's prerogative rights and obligations. It is the business of the Court, in addition to affording the opponent the ordinary rights of any other person in society, to make sure that she suffers no injustice during her disability. In that sense, she is within our protection. She cannot effectively protect herself by reason of her profound mental disabilities occasioned by the tort for which (by her representative) she sues the claimant. The opponent's action for damages was ultimately heard by Badgery Parker J. His Honour awarded her a judgment in the sum of $1,558,950. From that judgment the claimant appealed to this Court. The opponent cross appealed. The appeal took an unusual course. It extended over several days. It was then part-heard. An application was later made for the claimant to reopen its evidence. That application succeeded. The consequences are significant for these proceedings. At first the only challenge by the claimant in its appeal was to that component of the judgment which allowed the claimant the sum of $211,500 for the costs of fund management. The claimant originally intended to challenge an earlier decision of this Court in Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522 (CA). In the event, however, no application was made to reargue the essential holding in that decision. Various other attacks were made upon \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO 2] (Kirb$ P) Badgery Parker J's calculations. A number of the components in his Honour's judgment required recalculation and adjustment. These included interest which he had allowed on general damages, conforming to the law as it stood before MPB (SA) Pty Ltd v Gogic (1991) 65 ALJR 203 (HC). As appears from the reasons of the members of the Court hearing the appeal, a number of errors were established by the claimant which required that the appeal be allowed and the judgment entered by Badgery Parker J set aside. This conclusion posed for the Court a problem, not infrequently addressed by it. It was whether the Court could safely proceed to a recalculation of the opponent's proper damages as on a rehearing or whether, to avoid the risk of a substantial wrong or miscarriage and because any other course was unsafe, the matter should be sent back for retrial. Notwithstanding the establishment of error in the first trial, there are various inhibitions upon ordering a new trial. They include some, not presently relevant, in the Rules. See eg Pt51 R16 SCR. There are obvious reasons of finality and the saving of cost and delay, which tend to favour recalculation where this can safely be done by the Court on the available material. However, it is always a matter of judgment. And it not infrequently happens that judges differ about the course which is desirable in a particular case. Cf Government Insurance Office of New South Wales v Evans (1990) 21 NSWLR 564 (CA). In circumstances which it will be necessary to describe, towards the very end of argument of the earlier proceedings in this Court, the opponent sought leave to amend her cross appeal to add an additional ground viz: "5. That his Honour erred in calculating the present value of the plaintiff's future economic loss and future care by reference to the 3% discount tables." This motion, in turn, arises out of the reopening of the evidence which had been permitted to the claimant. It follows certain evidence given by the claimant's expert, elicited, in part, by questioning by Meagher JA. The Court did not accede to the motion for amendment of the notice of cross appeal at the time it was made. It reserved its decision on the point to be dealt with by the Court, together with the other matters in contention, in disposing of the appeal and cross appeal. What I have said describes, in broad outline, the proceedings in this Court. But it scarcely does justice to the complexity of the issues, the number of submissions and the density of the actuarial material which was placed before the Court. A very large number of actuarial tables was tendered in support of the various submissions of the parties or in pursuance of the leave granted to the claimant to tender additional new evidence during the hearing of the appeal. The orders of the Court in the appeal. Unfortunately, in disposing of the appeal, it was not possible for the various members of the Court to reach unanimity. This is by no means an unusual experience in appellate courts, whether in Australia or elsewhere. I was generally in agreement with the conclusions which Meagher JA had reached and expressed in his reasons. However, having regard to what I described as: "\.. the belated development arising from the additional oral and written submissions of the appellant, with fresh evidence which provoked the evidence and application of the respondent." I concluded that the "only safe course" was to send the proceedings back for retrial where a complete recalculation of the opponent's damages could be made. That course had the additional advantage, as it seemed to me, that it would permit 4 UNREPORTED JUDGMENTS a retrial of the opponent's damages relating to future care and loss of earnings. I gave three reasons for favouring a retrial: 1. That it would permit correction of the errors of approach and calculation exposed by Meagher JA (in many cases with the concurrence of Mahoney JA as I understood his Honour's reasons); 2. That it would permit new evidence to be given, which had not been given in the first trial, which would "sustain a fundamental attack on the computation of the two central components of the [opponent's] judgment"; and 3. That it would permit the opponent, if she so chose, to take at the retrial the point which had emerged in the way the appeal was heard, concerning the challenge to the High Court's holding in Todorovic and Anor v Waller (1981) 150 CLR 402. It was said that the facts of her case, as elaborated in the hearing of the appeal, exposed serious flaws in the application of that decision to her case. Retrial recommended itself to me as the most just way of disposing of the undoubted errors which had emerged during the hearing in the Court whilst at the same time protecting the position of the opponent in respect of points which she may wish to argue, ultimately before the High Court, which had come to notice, with clarity, in the way the appellate proceedings were conducted in this Court. In the course of my reasons, I referred expressly to the belated application for the opponent to enlarge her grounds of appeal. I favoured allowing that motion to avoid what I described as the "'shocking affront to justice" which would otherwise arise if the Court were to apply to this opponent, rigidly, a rule of procedure holding her to the grounds of cross appeal as originally filed. I pointed out that: "... both parties should be taken to have waived [such rule] by the tender in this Court of affidavits containing fresh evidence by actuaries. It is to be remembered that the first such tender was made by the appellant itself... It was this unheralded additional factual material which elicited the evidence of the respondent's actuary." Mahoney JA in his reasons expressed agreement in the matters of "calculation and detail" appearing in the judgment of Meagher JA. He concluded his reasons with the proposal that the judgment of Badgery Parker J should be set aside; the amendments proposed by Meagher JA to "errors" should be made and: "In addition, there should be included in the judgment as the management costs an amount calculated in the manner to which I have referred." His Honour's formal order was that the opponent should bring in short minutes of the order necessary to give effect to his conclusions. Meagher JA, having identified various errors indicated that, initially, he favoured the substitution of the judgment corrected in accordance with his recalculations. However, it was then necessary for his Honour to deal with the belated application signalled by the opponent's motion to enlarge her grounds of cross appeal. Having been initially of the view that the claimant should not have been permitted to reopen evidence so that the actuaries could "resume their haruspicial activities', Meagher JA was steadfast in his opinion that the proper orders were that the appeal and cross appeal should each be allowed; that the judgment and order appealed from should be set aside; and that in lieu of that judgment there should be substituted judgment in favour of the opponent in the sum of $1,434,755. \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO 2] (Kirb§ P) The result of the several orders proposed by the three members of the Court of Appeal was that no order of the Court could be derived from them. As is customary, this produced internal discussions within the Court. Resolution still not being achieved, Meagher JA proceeded to add to his reasons, as originally drafted, the following: "T have now read the judgments of the President and Mahoney JA. Since no orders could be made if things continue to stand as they are, and since I am the junior judge hearing the appeal, I must be content to acquiesce in the orders proposed by the President." The result was that the orders which I proposed became the orders of the Court. They were so pronounced when the reasons for judgment were published. In ordinary events, therefore, the judgment of the Court of Appeal would have been taken out to reflect my orders. The complaints about the Court's orders. The claimant has sought special leave to appeal to the High Court of Australia from the orders of this Court. It did so by application made on 10 August 1992. For the opponent it was complained that the affidavit in support of the claimant's application to the High Court did not, in breach of the requirements of 0.69A R4(2) of the High Court Rules, annex copy of the judgment or order of this Court. That is a complaint to be made to the High Court, not to us. The opponent then said that the claimant should be left to its remedies in the High Court. This complaint has some validity. I will not elaborate the principles which are defensive of the finality of litigation. The reopening of argument before a court which has disposed of a case should be discouraged. Relief, including under Pt40 R9(1) SCR, should be conserved to exceptional cases. So much was not really disputed by the claimant. Indeed, there was a large measure of common ground concerning the principles to be applied. As those principles have lately been analysed by the High Court in Smith (above), by this Court in Rajski v Bainton unreported, Court of Appeal, 18 February 1991; (1991) NSWJB 3, no good purpose is served in restating the governing rules. Where an order or judgment has not been taken out (as is the case here) there is undoubted power in the Court to provide relief of the kind sought by the claimant. But it is a power to be exercised "with great caution". See State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29, 38. Reopening will more readily be granted where there is a simple case of mistake or misconception shown. In any other case, it is necessary to demonstrate that there has been an "irremedial injustice" which outweighs the high public interest in the finality of litigation. In support of its invocation of the review procedure, the claimant pointed to the fact that it had no right to appeal from this Court's order. It was obliged to secure the special leave of the High Court. By common knowledge and published statistical material, that leave is granted to review only a small percentage of this Court's orders (between | and 296). Accordingly, so it was put, this Court should avail itself of the opportunity to correct any clear error for itself and not consign the claimant to run the gauntlet of special leave. As well, the claimant stated that it had taken the course it did because otherwise, in the case of a suggested "clear error", it was likely that the High Court itself would have asked why it had not brought the matter to this Court's attention. 6 UNREPORTED JUDGMENTS For my own part I see no objection to the course which the claimant has adopted. Its application has more merit than most such applications. In essence, the claimant raised two grounds to suggest that a "clear error" had occurred by misapprehension or oversight: 1. That a majority of the Court had favoured refusal of the opponent's belated application to enlarge her grounds of cross appeal. As it was that amendment, favoured by me, which afforded a principal basis for the order of retrial, it was desirable that the Court should isolate, sever and separately determine the motion for enlargement of the cross appeal. If this was decided (as the claimant suggested it would be) contrary to the opponent's application, no basis would then exist for an order of retrial. The Court's suggested majority in favour of recalculation of the opponent's damages would then prevail. The cost, delays (and risks) of retrial would be avoided. The litigation would be brought to a close; and 2. One of the errors, said to be common to the reasons both of Meagher JA and myself (and if incorporated as an "error in the judgment of Badgery Parker J" by Mahoney JA also) was the belief that the opponent's funds would be depleted in about nine years. By reference to the actuarial material, the claimant contended that the only fund which would be exhausted within such a period (viz 6 years) was an allocation of $47,869 for the future fund management. It was not the total fund of the opponent's damages. It is convenient to take each of these points in turn. Suggested error: method of procuring the orders of the Court Faced with the inability to secure common orders by the process of logical reasoning, appellate courts have devised various techniques to ensure that the individual opinions of their members do not frustrate the achievement of a final order of the court. The established technique, followed many times in this Court, is that laid down in Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1977] 2 NSWLR 827 (CA) at 866. See eg Kovac v Kovac [1982] 1 NSWLR 656 (CA) at 682; Sharman v Evans (1977) 138 CLR 563. This was, for example, the course followed by McHugh JA in O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 at 641 when Mahoney JA and I reached different conclusions on the multifarious issues of the appeal and cross appeal in that case. To secure the order of the Court, McHugh JA agreed with my orders which were later upheld by the High Court. See Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332. I have never considered that the foregoing convention provides a particularly rational way of resolving differences of judicial opinion. It depends more upon the accidents of judicial seniority than logic which should, as far as possible, rule the conduct of courts aspiring to justice. I have said so much on numerous occasions. See eg Woolworths Ltd v Kelly (1991) 22 NSWLR 189 (CA); Attorney General for New South Wales v Barr, Court of Appeal, unreported, 11 October 1991; (1991) NSWJB 106. I have done so in cases where, although the senior and presiding judge, I have withdrawn my orders, in whole or part, so as to procure the highest common denominator of agreement within this Court. But this view of mine does not make the convention followed by McHugh JA in O'Brien and Meagher JA in this case in any way inappropriate or unlawful. It was for Meagher JA (possibly in consultation with the other judges participating) to decide what should be done. It is true that, if Mahoney and Meagher JJA had approached their decisions differently, a different result might have ensued. My opinion on the proper course to be followed was, and still is, that expressed by \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO 2] (Kirby P) me in my published reasons. I determined the motion for enlargement of the cross appeal. I then proposed my orders to dispose of the appeal. It is not for me to respond to the criticism of what otherwise might have been done by other members of the Court. The first basis for the application to have the Court review its pronounced orders fails, at least so far as the orders which I favour are concerned. Suggested error: premature depletion of the damages fund. There is more substance in the second argument. The claimant correctly draws attention to the fact that I, alike with Meagher JA, said that the parties had accepted that withdrawals from the "respondent's fund", which I described as the moneys which "Badgery Parker J thought were justified", would "probably deplete the whole fund within about nine years". I am satisfied by argument in this motion that this was a mistake. But is it a mistake which requires the setting aside of the orders which have been pronounced and the re opening of these protracted proceedings to a complete review and reconsideration? If it were to appear that the mistake was one central to the reasoning which led to my conclusions and the orders which I proposed, the only intellectually honest course would be to grant the claimant the relief which it seeks. If, however, the error is simply one of an inessential character, such that it does not undermine the reasoning which I exposed nor invalidate the result which I reached, the orders which I have proposed should stand. The application for review should be disallowed. Into which class, then, does the error fall? The starting point of the answer to that question takes me back into the case at trial and the assumptions adopted by Badgery Parker J for the judgment which he entered. His Honour determined that the opponent's life expectancy was 61 years of age. That finding was not challenged by the claimant. His Honour intended to provide, by his judgment, for future weekly outgoings and future economic loss on the part of the opponent in the sum of $279.60 being for various components for future care and accommodation and economic loss which he found. His Honour capitalised these outgoings by reference to the 3% discount tables. The resulting aggregate was the sum of $1,026,584 which he included as the principal component of his judgment. In its submissions to this Court dated 25 March 1991, the claimant contended that the allowance for the administration fees for which the opponent's estate would be subject should be assessed according to certain "principles". These principles included a determination that the likely future rate of return on investment of the fund was 10%; that the likely future rate of inflation was 6% or (less likely) 5%; and that current tax scales should be assumed to continue. In support of these "principles" on 18 June 1991 the claimant, pursuant to leave given to it by the Court, called before the Court its actuary, Mr Geoffrey McRae. Mr McRae, having been called, was subjected to questioning both from the Court and on behalf of the opponent. Mr McRae was requested by Meagher JA (tspt 81) to calculate what initial amount which it was necessary to start with in order to keep the total fund for the opponent in existence for 61 years, whilst enabling the opponent to make the withdrawals contemplated by Badgery Parker J as set out above. In response to that request, Mr McRae produced a table which was admitted (tspt 84) as exhibit 2 in the appeal. Cross examined, Mr McRae stated (tspt 83): "MR KELLY: Q: That indicates (documents handed up) on the assumptions made in that document the fund cuts out after 28 [years]? A: That is correct. 8 UNREPORTED JUDGMENTS Q: And the difference between this and your other table is the annual drawings correspond with the judge's actual figures? A: Well, they correspond for the first 24 years. The fund was so low then we didn't bother at that stage bumping them on. If we had actually put those on it would have run out maybe a year earlier, there is not much in that. It seemed to be merely a point of detail which was not of any significance. Q: Whereas the annual drawings column in your other document really do not relate to the judge's figure at all, they are merely notional figures? A: They spread the total award over the whole period of the expected future lifetime. We have been instructed to use in this case; Q: I may be missing out something: doesn't that demonstrate that if the judge said that the annual drawings should be in accordance with your new document, the total amount of the initial fund is far too small to permit that bearing in mind it should last 61 years? A: I suppose where there is inflation the 3% does tend to disadvantage the plaintiff. Q: That would mean the total fund which is intended to be a 61 year fund and intended to have annual drawings of the amounts indicated in the column just isn't sufficient for that purpose? A: On this basis, yes.... Q: You know his Honour intended the plaintiff should draw in year 25 $780 per week in future care expenses in today's money? A: Well I pointed out to his Honour a few minutes ago that the fund had run down to such an extent by year 25 that it seemed to be... Q: In other words, making this assumption and factoring in the tax, by year 25 the fund is in such a parlous position there is not much point in making the adjustment? A: The fund may have run out a year or two earlier. Q: In doing the calculations as you have it is evident, is it not, that the fund is exhausted? A: The fund may have run out a year or two earlier. Q: In doing the calculations as you have, it is evident, is it not, that the fund will have exhausted in 28 years rather than the 61 years that his Honour intended? A: On the basis shown here, yes. " Later, Mr McRae gave counsel for the claimant the following answers: "MR SPERLING: Q: Where the rate of inflation is anything more than zero or a little more than zero is this pattern in exhibit 2 what you would expect from the application of the Todorovic v Waller formula? A: It is, yes. Q: So that the corollary is: one really needs conditions of zero inflation or near zero for the Todorovic formula to work in such a way to enable the predicted drawings to be made over the postulated period? A: That would be right because of the fact of tax on inflation not taken into account in Todorovic..." Unsurprisingly, perhaps, counsel for the claimant thereafter frankly conceded that the opponent would have to make do with less than Badgery Parker J had intended should be provided for her or else be left, in effect, without funds at the end of 27 years. He simply asserted that it was the result of the authority of Todorovic: \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO 2] (Kirb9 P) "MEAGHER JA: Q: Why hasn't exhibit 2 destroyed your case or given Mr Kelly a new ground for an appeal in that granted it is reasonable to take a 10% investment return, granted it is reasonable to take 6% inflation, a fund at $871,000 odd will not give the annual drawings his Honour said?... MR SPERLING: Because of the decision of the High Court in Todorovic v Waller which mandates a different approach and prohibits this. [It] prohibits increasing the verdict because of this - because Todorovic v Waller says, in relation to expenses which will inflate roughly in line with inflation, such as the expenses with which we are concerned here [cost of care, swimming pool costs and lost income]... income in the sense of earnings - which will inflate in line with inflation, it is mandated that one must assume for the purposes of the exercise that they will not inflate and one must apply a 3% discount rate to the assumed stream of future income or loss at today's dollars. It works very well in low inflation. It works like this [indicated, semble ex 2] in times of high inflation. There is nothing in the Todorovic v Waller formula to compensate for the tax payable on that part of the notional income for an investment which relates to the inflation rate. This is the consequence. Seen another way, it is a judicially imposed cap on damages." The result of the foregoing exchanges was a suggestion that the Court should recalculate the respondent's entitlement to the fees for management of the Protective Commissioner upon the basis either that the opponent would have to live frugally and without the funding contemplated by Badgery Parker J or that she would be left without means, effectively at the end of 27 years: "MR SPERLING: What I do adopt is that it is a question of fact as to what the likely future cost of fund management will be. The Court now has in effect two competing models. One is the model which Mr McRae formulated on assumptions he was asked to make, which is that the money will be rationed out as to last 61 years. That will necessarily have the effect that the weekly amount rationed out will be less than the aggregate of those figures mentioned by [Badgery Parker J]. MEAGHER JA: Which means, prima facie, it must be suspicious I would have thought. MR SPERLING: Not at all, your Honour. That would simply be proper management response to reasonable assumptions as to what was likely to be available to the plaintiff out of this fund over the years with the fund running out at the end of 61 years. Otherwise the Protective Commissioner has to do this, exhibit 2, and leave the plaintiff destitute at the end of 27 years. Given the choice between rationing the money out on the basis the plaintiff will live frugally but with support for 61 years or, as against that, rationing out the figures mentioned by his Honour, with the expectation that the plaintiff will have nothing half way through the period contemplated, is a question of fact. The overwhelming probability is that the Protective Commissioner will take the more conservative approach. MEAGHER JA: But why is not the desirable result that the plaintiff be given such an amount as will enable Mr McRae's reasonable assumptions to work and the Protective Commissioner to act prudently and permit the plaintiff to withdraw the very sums which the judge has found would be reasonable for her to withdraw? MR SPERLING: The one thing that cannot be done is to increase the award for this purpose because it would fly in the face of Todorovic and Waller. 10 UNREPORTED JUDGMENTS MEAGHER JA: I remain to be convinced of that. Todorovic v Waller is really a case that tells you how to discount back, is it not? " The proper order is for a retrial. The opponent wishes to canvass these matters at a retrial. Unless she can do so, she will be prevented from having them passed upon by a court. This will be because, in the first trial, she did not raise the point at trial. Accordingly, other things being equal, it would involve a_ procedural unfairness to the claimant for the opponent to be allowed to raise the matters belatedly now, given that upon them evidence which was not given at the first trial (eg from actuaries) might be appropriate. The opponent has indicated her desire to call, at the retrial, evidence which would suggest that, for a person in her profoundly disadvantaged position, the 3% discount rate adopted in Todorovic is not appropriate or just. Reference was made, for the opponent, to an article by Professor JR Eck, Visiting Fellow in the School of Banking and Finance at the University of New South Wales and Professor of Insurance and Finance at Woffburn University in the United States. See J R Eck, "Mandated Discount Rates in NSW Personal Injury Cases Mean Lower Awards" (1992) 30 Law Soc J (NSW) 44 at 45. Of course, it would be perfectly possible to apply a rigid procedural rule to the opponent. She (or more properly her lawyers, representative and the Protective Commissioner) could be told: You failed to take this point at the first trial. You cannot take it now. She is bound by your conduct of the case. That course was not attractive to me when this appeal was first argued. It has become no more attractive during the hearing of this motion. I concede that I erred in my reasoning where I suggested that the opponent's total fund would run out in nine years. This was a mistake. It will run out somewhere between 24 and 27 years, if the expenditures made are those which Badgery Parker J considered appropriate to the opponent's profoundly injured condition. I would not agree with the solicitor for the opponent that the mistake is a "quibble". There is, after all, a significant difference between 9 years and, say, 25 years. But for two reasons the mistake does not alter my essential reasoning or the conclusion which it led to. First, the essence of it was that there would be a long period where, there was a risk, to use counsel's words, that the opponent would be "destitute". Given the life expectancy of 61 years, this may not be 50 years or so. But it is still 35 years or so. And that is a long time in the life of the opponent. Those years would fall, in the probabilities of nature, at a time when her devoted mother will not be able to attend to her as at present. Secondly, the mistake was only one of three considerations which led me to my earlier conclusion. Then, it was only part of that consideration. The establishment of clear errors, which all members of the Court agreed to, provided this Court with the jurisdiction to set aside the judgment of Badgery Parker J. Such errors activated the determination by the Court of what should then follow. The Court then has a discretion. I was of the view that that discretion should be exercised to remit the matter for retrial. I remain of that view. I do not believe that the view has been displaced by the error of reasoning demonstrated by the claimant. Better, as I earlier said, that the matter go back for retrial at first instance, preferably before Badgery Parker J himself. The found errors of a mathematical kind can then be as quickly corrected as they could have been before this Court. As to the remaining matters, since they were substantially opened up by the claimant's own actuarial evidence in this Court (as I have shown) it is only just that the opponent should have the opportunity to explore \WGRQVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO ® (Meagher JA) them at a retrial. Such evidence as is then relevant can be laid out. If, as is foreshadowed, the opponent wishes to seek review of the Todorovic principle in the High Court, she can then secure (as can the claimant) the necessary evidentiary material upon which to ground that application. Orders. In the result, I have concluded that the motion to set aside or vary the judgment of the Court should be dismissed. So far as I am concerned, the judgment of the Court should stand as previously pronounced. It should be entered without delay. The claimant must pay the costs of its motion. Mahoney JA In this matter, Kirby P and Meagher JA concur in the view that thereshould be a retrial. It has been submitted that, in coming to the conclusion that there should be a new trial, an error or errors appear in what their Honours said or agreed to and that that error should be corrected, notwithstanding that the appeal has been disposed of by this Court. My conclusion as to the disposition of the appeal was different. However, as the Court has been moved in the terms referred to by Kirby P in his present judgment I am required, as a member of the Court, to reach a conclusion upon the issues proposed. As I understand the judgment of Kirby P in which he concluded that there should be a retrial, the President would have concluded that there should be a retrial even if the suggested error or errors had not been made. Therefore, if there be such error or errors, they do not invalidate his conclusion as to how the proceeding should be dealt with. The error or errors, if there be such, can be taken into account and corrected upon the retrial. Accordingly, I agree with the orders proposed by Kirby P. Meagher JA I agree with the President. Motion dismissed with costs. Counsel for the Claimant: HD Sperling QC/L King/K Connor, Instructed by: GM Meadows (Solicitor for New South Wales Ministerial Corporation) Counsel for the Opponent: TD Kelly (Solicitor), Instructed by: TD Kelly and Co