RUDMAN v WILSON INDUSTRIES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 12 October 1994, 12 October 1994 [1994] NSWCA 274 FACTS:Plaintiff damages assessment heavily discounted in respect of past and future economic loss. HELD: (1) Discount so savage as to be almost penal. ORDERS: (1) Appeal allowed (2) Judgment of the Court below set aside. (3) Substitute judgment in the sum of $210,615.00. (4) Judgment to take effect from 2 September 1992. (5) Respondent to pay the Appellant's costs of the Appeal and Trial. (6) Respondent to be given Certificate under the Suitors Fund Act, if so entitled. Priestley JA I will ask Mr Justice Meagher to give judgment. Meagher JA The plaintiff, who is the current appellant, suffered a very severe accident on 11 March 1986 when thirty-five years old. In that accident he suffered a head injury. Mr Justice Grove awarded him a verdict of $148,295.00 in a trial dealing with assessment alone. It is an extraordinarily difficult case, both because of the imponderables involved and the plaintiff s unattractive personality, a matter which influenced the Judge. He was a drunkard, a loafer, liar, ex prisoner, wife molester and a man of violence. His work record before the accident was deplorable: worked only about 50 per cent of the full time and then perhaps one-third of the going average weekly earnings. In these circumstances one can understand his Honour's decision to discount heavily the amounts of damages to which the plaintiff was otherwise entitled. However, in my view his Honour discounted far too heavily. In my view the discounting which his Honour undertook was so savage, as to be almost penal and, in my view, both the economic loss for the past and the future economic loss ought to be disturbed. I have not reached any lump sum, but I should indicate to counsel the way that the matter ought to be treated and, in due course, counsel can provide figures. As far as the past economic loss is concerned, one starts with the figure of $140,756.00. That is part loss calculated on the $416.00 figure. Instead of taking one-half of that, as his Honour did, one should take two-thirds of it and then take a half of that figure. That will give a figure to project into the future but for the correct number of years, not the number of years which his Honour used, and to be discounted when capitalised by 15 per cent, not by 31 per cent. In addition to those figures, of course, that will carry the interest that will have to be re-calculated, as best as we can manage here roughly, and that should add another $60,000 to $80,000 to the plaintiff's verdict. 2 UNREPORTED JUDGMENTS The orders which I propose that the Court should make now are, a verdict and judgment to be set aside and a new figure to be substituted for the figure at which his Honour arrived. That new verdict as from his Honour's original verdict is that the respondent pay the appellant's costs of today's hearing. Priestley JA I agree with what Mr Justice Meagher has said, and will mention one matter. That is that so far as the calculation of the future economic loss is concerned, what the Court intends is that the same method be used as Mr Justice Grove used, to the age of sixty-five, but that instead of the $103 figure which he used for the capitalisation purpose, the figure be used which will emerge from the new total for past economic loss. I assume that it will be easy for the parties to work these figures out and let us have them either before or immediately after lunch. Handley JA I agree. If the Court discounts the plaintiff s earnings immediately fore his injury by one-third to reflect his indifferent past employment history and earning rate, but still to reflect the potential that he had demonstrated at that stage over some months while working for the defendant on a regular basis, with overtime and, then to deduct a further 50 per cent to reflect his residual earning capacity after the injury one would get a weekly loss of $138.81, which for the past would give on my calculations - $46,918. This figure will, of course, attract an award of interest. Taking the same figure of $138.81 and adopting the figure of $2,883.85 from the 3 per cent tables referred to in Mr Murray's submissions for the period to age sixty-five as the appropriate multiplier, one gets, on my calculations $122,687 and after deducting the usual 15 per cent for vicissitudes, $104,284. As I understand the views of the Court, it is that figure that should be substituted for the award of $60,000 for future economic loss made by the trial judge. I agree with the orders proposed by Mr Justice Meagher. Priestley JA: We would leave it to counsel to do the calculations. I think that we have given you all the information you need to make the calculations. McGillicuddy: The figure is $210,615. Handley JA: After taking off the workers compensation? McGillicuddy: Yes. Priestley JA: The parties have now handed up short minutes of orders which they agree embody the correct calculations as required by the reasons earlier given by the court in this matter. On that footing, the court makes the orders as set out in the short minutes which I initial and leave with the papers. (1) Appeal allowed (2) Judgment of the Court below set aside. (3) Substitute judgment in the sum of $210,615.00. (4) Judgment to take effect from 2 September 1992. (5) Respondent to pay the Appellant's costs of the Appeal and Trial. (6) Respondent to be given Certificate under the Suitors Fund Act, if so entitled. Counsel for the appellant: BF Murray QC/IJ McGillicuddy Solicitors for the appellant: GH Healey and Co Counsel for the respondent: J Coombs QC/ M Herschderfer Solicitors for the respondent: Windeyer Dibbs