BACHMANN v COPEMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 13 October 1994, 13 October 1994 [1994] NSWCA 15 DAMAGES — FUTURE ECONOMIC LOSS DAMAGES FOR FUTURE ECONOMIC LOSS — use of "cushion" approach — assessment of possibilities was appropriate. The trial judge assessed the appellant's damages for future economic loss by way of the "cushion" approach. Held: it is plain from the entirety of his Honour's reasons that he was assessing the possibilities in the appropriate way so far as future economic loss was concerned. ORDERS Appeal dismissed with costs. Priestley JA In this case the court has been assisted by three documents. The first is the Reasons for Judgment of his Honour Judge Pain, from whose judgment the appeal is brought; the second is the written submissions of the appellant, and the third is the written submissions of the respondent. The case in this court is within a small compass and is one in which it is appropriate, rather than for the court to recite again what has been well set out in Judge Pain's reasons, simply to act upon the basis of the facts as he stated them. There has been no challenge to any of his Honour's basic factual findings. The challenge has been confined to one aspect of his Honour's decision. This was that head of the damages claimed by the respondent called future economic loss. The judge dealt with it in a particular way which he set out in his reasons and which has been repeated in the written submissions. His method involved the starting point that this particular head of damage concerning future economic loss would be best dealt with by what has been called the "cushion" approach. The appellant does not quarrel with his Honour having taken that approach, but says that there were clear errors in the way in which he applied it. The substantial point is that, according to the appellant's submission, the way in which his Honour stated his method of calculation of the "cushion" indicated that he was dealing with the matter of future economic loss, not by assessing that loss in light of the future possibilities inherent in the respondent's situation, had she been uninjured, but by assuming she would definitely have worked for twenty years, had she not been injured, perhaps even for a longer period. It was then submitted that this approach is wrong because the case is pre-eminently one where it was a valuation or assessment of the chances or possibilities relating to the respondent that had to be undertaken, and the evidence could not support a finding that the respondent would have worked for the period said to have been assumed by his Honour. There is something in this submission in a formal sense if his Honour's words are read in the way the appellant would wish to read them. However, I do not think they should be so understood. In my opinion it is plain from the entirety of 2 UNREPORTED JUDGMENTS his Honour's reasons that he was assessing the possibilities in the appropriate way in so far as future economic loss was concerned. There are three reasons for my saying this. One is the overall context and tenor of his reasons. The second is his use of the word "cushion." The idea of the "cushion," to my mind, is something that needs to be provided against the chances of the future so far as the court can assess them as they would have been had the respondent not been injured. The third thing is that in the part of the reasons which is particularly criticised by the appellant, his Honour made it clear that he was taking into account the various vicissitudes, economic conditions and other imponderables, both for better and for worse, and was bearing in mind the restrictions upon the respondent that flowed from her position working with her husband on the farm. These considerations all lead me to the conclusion that the trial judge was not purporting to make a finding that the respondent would have worked in the period that he was projecting, had she not been injured, but that the calculation he did was simply one way of trying to estimate the proper assessment of the possibilities which he had earlier enumerated. On this footing there is nothing inappropriate in the method which he adopted. It seems to me appropriate to say, further, as one rough way of checking the impression that I formed on reading the criticised parts of his Honour's reasons, that my own assessment of the future economic loss, upon a reading of the appeal papers and using the method which the appellant contends is the appropriate method, I arrive at a figure very much the same as that of the trial judge. The matters I have discussed being the only point raised by the appellant, there is nothing further that needs to be said beyond perhaps remarking that I have not dealt with every one of the individual submissions put by the appellant but have confined myself to the ultimate substance of those submissions. The result in my view is that the appeal should be dismissed with costs. Meagher JA I agree. Handley JA I agree. Priestley JA: The result therefore is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: HJ MATER Instructed by: WINDEYER DIBBS Counsel for the Respondent: C HICKEY Instructed by: RHODES, KILDEA AND JOHNSTON