NSW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NEW SOUTH WALES) v MESITI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and SHELLER JJA 16 November 1994, 1 December 1994 [1994] NSWCA 221 ADMINISTRATIVE LAW — failure to give reasons duty to give reasons for various findings when liability at issue — limited new trial ordered The plaintiff had commenced two proceedings against the defendant in the District Court with respect to two motor vehicle accidents, in both of which liability was at issue. By consent, these were heard together. The trial judge gave one judgment in both proceedings. The plaintiff appealed on the grounds that his Honour failed to give reasons to support his conclusion on liability, for preferring the plaintiff's medical evidence to the defendant's and for arriving at the amount assessed for future economic loss. The defendant argued that the failure to give reasons entitled it to a new trial. Held: (1) That the reasons given were insufficient. (2) The failure to explain the basis of the findings on medical issues and the calculation of future economic loss amounted to a breach of the principle that justice must not only be done but must be seen to be done. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281. Government Insurance Office of New South Wales v Blanusa (unreported) Court of Appeal, 10 August 1992 distinguished. (3) The failure to give reasons on liability did not call for a new trial since the plaintiffs case on negligence was overwhelming, there was no persuasive and critical contrary evidence and the trial judge's conclusion was correct. Compare Mifsud v Campbell (1991) 21 NSWLR 725. (4) Accordingly there should be a new trial limited to damages. A party is entitled to expect of a judgment that the judge spell out what happened and where and when it happened, summarise the evidence that goes to liability and make his or her findings on the evidence indicating, where there is conflict, why some rather than other evidence is preferred. It is part of the task of a trial judge to consider the evidence and arguments of the parties and, when reaching a decision, inform the parties of the basis for it. An important reason for this is to assist an appeal court, if there is an appeal: Pettitt v Dunkley (1971) 1 NSWLR 376 at 380. ORDERS 1. Appeal allowed; 2. Except on the issue of liability in both proceedings, set aside the verdict and judgment for the respondent; 3. Order a new trial in both proceedings limited to damages; 4. The costs of the first trial to be in the discretion of the judge hearing the new trial; 5. The respondent to pay the appellant's costs of this appeal and to have a certificate under the Suitors' Fund Act 1951. Mahoney JA I agree with the judgment of Sheller JA. In relation to the issue of liability, the only observation made in the judge's judgment was: "Given that I find that both accidents were caused by the negligent driving of the defendant's insured, the principle issues at the trial were and/or became..." issues in respect of damages. Whatever be the content of the obligation to give reasons, such reasons would ordinarily be insufficient. 2 UNREPORTED JUDGMENTS Parties may, of course, agree that no or no detailed reasons need be given. In the present case, having regard to the notation upon the judgment to which Sheller JA has referred, the Court inquired as to whether what occurred explained the course taken by the judge in relation to liability. Counsel have assured the Court it did not. Accordingly, the judgment was affected by an error of law. Iam conscious of the consequences which flow from the obligation - as some would see it, the tyranny - of judgment writing. In superior courts, the time required for judgment writing will ordinarily be substantial. The result will be that the decision in the instant case will be given later rather than sooner. And, during the time he must spend writing a judgment, the judge cannot hear other cases. Inquiries made by, for example, the Remuneration Tribunal suggest that, in superior courts, judges are occupied between fifty and sixty hours per week in doing what they must do. It would be unfortunate if considerations of form rather than of function or necessity required unnecessary time to be spent in writing rather than in judging. Accordingly, I confess to sympathy for the trial judge in a case such as this where it was, I think, plain that the defendants were negligent and that the plaintiff was not guilty of contributory negligence. In earlier times, it would have been possible for this to be stated acceptably in a few lines. It is now required that the reasons why these conclusions are drawn be indicated. I do not think that they have to be stated at length. But, even in such a case as this, something more than the mere statement of the conclusions is required. The reason for this is the part which the statement of reasons plays in the judicial system. In an unreported judgment: Rajski v Bainton (Court of Appeal, 6 September 1991); I stated my views upon the matter as follows: "Tn the past, views of judges have differed as to what should be given by way of reasons for judgment. It may be that they will continue to differ. But in general there has been discussion in the cases of two things: when reasons must be given; and what reasons the law requires to be given. It is established that, in some but not all cases, the failure to give reasons for the orders made by a judge will constitute an error of law: see Pettitt v Dunkley (1971) 1 NSWLR 376. The matter was examined formally by this Court in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 and Soulemezis v Dudley Holdings) Pty Ltd (1987) 10 NSWLR 247; and it has been referred to in the High Court: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666 et seq; 676-677; (1984) 3 NSWLR 447. In the present case, detailed reasons were given for the order dismissing Mr Rajski's proceeding. His present complaint is essentially that the reasons given were not sufficient. The reason why they were not sufficient is, the suggestion is, because, in dealing with the allegation that Mr Bainton had agreed to seek access to computer material for the improper purposes alleged, the court dealt with the submission that he had done that 'in deliberate defiance' of an inter-parties undertaking but had not dealt in terms with the allegation that he had done so 'in deliberate defiance' of particular court orders. There is no mechanical formula for determining what reasons must be given for the orders which a judge makes. The reasons to be given are to be determined not by abstractions but by what the reasons are to do. Litigation is not a private game: it is a public procedure whereby disputes which parties have brought forward are formally determined. The judgment of the court is the public act of the State whereby such a dispute is determined. The reasons which are given are not given by way of legal essay: at least, they need not be. (I do not mean by this that a judge may not, in his reasons, say whatever he feels it proper to say. But WEBW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NEW SOUTH WALES) v MESITI (Mahoney JA) what is here in question is not what a judge may say but what he must say). Reasons are given in essence as the formal statement by a judicial officer of the State of the basis on which he has, in the exercise of his office, affirmed the existence of rights in one party and not in the other. Essentially, reasons are part of a public act, the exercise of judicial power. In the ordinary case, the basic public function of reasons is twofold: to record the basis on which that exercise of judicial power has been made; and to enable the parties to know what, consequent upon the judgment, their rights are and how, by way of appeal or otherwise, they may act in exercise of them. In this sense, reasons go to professional matters: they are a professional statement, to be understood essentially by professionals, dealing with matters essentially professional. But there is, in my opinion, a third function. It derives from the broad context in which courts of justice operate. There is a public interest in maintaining public acceptance of judicial decisions and the judicial system. It is assumed that this will be assisted if courts give an explanation of why they have reached the conclusions they have and have made consequently the orders which have been made. Accordingly, it has been seen as desirable that appropriate reasons be given: see the general discussion of considerations of this kind in the judgments in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. But it is wrong to treat this consideration as requiring that reasons must be given on every issue and upon every argument. There are several reasons for this. First, the giving of reasons consumes much public time and resources. Judges must take time to prepare them; they must be recorded; and the paraphernalia of law reporting, indexing, and the like is expensive. There must be balanced against the assumption that good will be achieved by them. Second, the assumption that reasons will maintain a public acceptance of the judicial system requires the additional assumption that the public involved will read or otherwise know of the detail of the reasons, to an extent which will make worthwhile the detailing of them. Such an additional assumption should not, I think, be readily made. At least, any assumption in this regard must be significantly qualified. Third, this function requires only that reasons be given to the extent that the giving of them will achieve. as I have described it, the desired public acceptance of the judicial system. If what is desired is acceptance by the lawyers of what was decided, reasons need be brief: lawyers will seldom be in doubt as to the substantial reasons why they have won or lost. And if the parties' acceptance is in question, it will, as I have said, not be assumed that they will have read them or have been apprised of the detail of them. Whatever be the effect of considerations of this kind, it is a matter for judgment in each case as to what need be said. It has been suggested, I think, that what a judge is to do is ordinarily to give 'the broad outlines and constitutive facts' on the basis of the orders which he has made: see the observations of McHugh JA in the Soulemezis case at 280 and of myself at 273. A judge may, in particular circumstances, conclude that he should not merely indicate by his reasons the basis on which his orders have been made; he may feel it necessary to go beyond that. But, in the end, it is not necessary that he pursue every argument or destroy every submission. And particularly is this so where, as in the present case, the arguments advanced have been many and the significance of them has been variable. In the present case the matter was before Clarke JA for, as the court was informed, some twenty-two days. This Court had before it the 4 UNREPORTED JUDGMENTS material that was before his Honour supplemented by further written material and some 500 pages or more of argument and submissions from Mr Rajski and some 150 pages from Mr Bainton. This was not a case in which it was necessary to pursue every argument raised in order that the matters in question should be 'dealt with'." The result is, as I have indicated, that the judge must be held guilty of an error of law. This does not necessarily mean that a new trial is required. This Court, as on a rehearing, is entitled itself to consider the matter. And, if appropriate reasons for the conclusions be given, it may itself decide the issues. I agree with Sheller JA that a new trial on these issues is not required. In relation to other matters, I agree with the judgment of Sheller JA. It is to be hoped that, these matters having been dealt with by this Court, the parties will be able to agree upon the appropriate result. Handley JA I agree with Sheller JA. Sheller JA Introduction The appellant, New South Wales Insurance Ministerial Corporation, appeals from a decision of Acting Judge Horler QC. His Honour gave a reserved judgment on 20 November 1991. At the end of it, after indicating a verdict consisting of agreed medical out of pockets, an amount for past economic loss excluding interest, general damages and future economic loss, he said that if interest could not be agreed between the parties he would receive written submissions on the issue. The judgment bears handwritten notes by his Honour; "16.12.91 interest agreed at $26,776.25" and "12.2.92 plaintiff withdraws request for further reasons. Verdict and judgment for plaintiff in each and both actions for $459,010.63 (including interest of $26,276.25) plus costs. Each side pay own costs of mention 12.2.92." The respondent had commenced two proceedings against the appellant in the District Court. The first (32200/86) was to recover damages for injuries suffered in a motor vehicle accident which occurred on 19 November 1985. The second (3234/89) concerned a motor vehicle accident which occurred on 13 April 1987. In the first proceedings the respondent alleged that the vehicle he was driving came into collision with another motor vehicle being driven by Norman Barry Elliott at the intersection of Marrickville Road and Wardell Road, Marrickville. In the second proceedings the respondent alleged that while he was driving his motor vehicle along Parramatta Road at the intersection of Crystal Street, Petersham, a motor vehicle driven by Richard Smith collided with his vehicle. In each case the respondent alleged that the accident was caused by the negligent driving of the other driver who was insured by the appellant. Liability was in issue in both cases which, by consent, were heard by Acting Judge Horler together. The Court's jurisdiction was extended. His Honour gave the one verdict and judgment in both proceedings. GROUNDS OF APPEAL The principal ground of appeal was that his Honour failed to give reasons: * for accepting the respondent's evidence on liability and rejecting the appellant's; * for accepting the medical evidence tendered on behalf of the respondent in preference to the medical evidence tendered on behalf of the appellant; WABW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NEW SOUTH WALES) v MESITI (Sheller JA) * for the findings he made in relation to the respondent's future likely earning capacity but for the accident; the appellant submitted that his Honour failed to identify the basis upon which he made the calculations relied upon for the assessment of future loss of earning capacity. FAILURE TO GIVE REASONS The appellant argued that the failure to give reasons entitled it to a new trial. It relied upon the following statements by Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728: "Tn Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court (at 667) said that it was right to describe the giving of reasons as "an incident of the judicial process' although a normal but not a universal one. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (at 278) makes some comments upon that holding, and goes on to say (at 281) that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. cesses a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires." In Soulemezis vy Dudley (Holdings) Pty Ltd at 280 McHugh JA, as he then was, pointed out that where legislation gives a right of appeal against a decision, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his or her right of appeal; see also per Mahoney JA at 269. However Mahoney JA went on to say at 270-272 that it is not necessary for a judge who is exercising a discretionary judgment to detail each factor which he or she has found to be relevant or irrelevant, or to itemise, for example, in the assessment of damages for tort, each of the factual matters to which the judge has had regard. The law does not require that a judge make an express finding in respect of every fact leading to, or relevant to the final conclusion of fact; nor is it necessary explicitly to reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion. Mahoney JA referred to the decision of the Privy Council in Selvanayagan v University of the West Indies (1983) 1 WLR 585. Lord Scarman, who delivered the judgment, regarded as misplaced the criticism of the trial judge for omitting to make specific findings fundamental to the issues in the case made by the Court of Appeal of Trinidad and Tobago. At 587-588 he said: "There was a very substantial conflict of evidence as to the plaintiff's knowledge of the state of the passage-way and as to the degree of light available. It is understandable that the Court of Appeal may have felt disposed to criticise the judgment at first instance as unstructured and prolix. But it is abundantly clear that the judge had the evidence - all of it - very much in mind. It is, of course, 6 UNREPORTED JUDGMENTS not necessary for a trial judge to make explicit findings on every disputed piece of evidence. If it is clear that he has the evidence in mind, it suffices for him to state his final conclusion, as the trial judge did in the passage already quoted." After quoting from this judgment, Mahoney JA said at 272: "Their Lordships did not, I think, suggest as a model of a judgment one in which, having the evidence in mind, the judge does no more than state his final conclusion of fact. Professional skill would suggest that something more be done. But their Lordships did make clear that there is no ground for reversal in the fact that, having made clear the facts on which he based himself, the learned judge did not detail the steps by which he proceeded from those facts to his final conclusion. In my experience, it has not been the practice in New South Wales for judges, in cases where reasons are given, to detail their reasoning processes in the manner suggested in the present case. For example, in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557, in the passage to which I have referred, Mason JA referred to the fact that a tribunal at first instance may state a number of facts without making findings on all of the issues of fact relevant to the final decision and that there may be unexpressed findings of fact which, as I understand his Honour's reasoning, have formed part of the process of reasoning to the final conclusion of fact. What his Honour there said was said in a different context. But the kind of judgment to which his Honour referred is not one in which the reasoning to the conclusion of fact is detailed in the manner which, it is suggested, is required." JUDGMENT AT FIRST INSTANCE At the beginning of his judgment his Honour set out background material about the respondent and the two accidents. In the course of this he said: "Both accidents were relatively minor in terms of force of impact." Under the heading "Issues" the judgment continued: "Given that I find that both accidents were caused by the negligent driving of the defendant's insured, the principal issues at trial were and/or became (i) the nature and duration of the plaintiff's injuries (ii) the aggravation, if any, of the initial injuries on 13.11.85 by the second accident on 13.4.87 about 17 months later (iii) his present and future capacity to work as a bricklayer and/or do physical work of a similar kind (iv) how long could a gun bricklayer have been expected to work?" His Honour then said: "I have read the trial transcript, my own notes, the exhibits and the medical reports particularly in the contentious area of orthopaedic medicine - Dr Rivett v Dr GE Scarf." He set out the names of the doctors on whose reports the respondent relied, said that he had considered the reports of two doctors relied upon by the appellant and referred to the fact that Dr Rivett and Dr Scarf had given oral evidence. The judgment proceeded: "T have reread the reports and considered the conflicting reports of the specialists in the context of the oral evidence of Drs Rivett and Scarf and the medical issues joined by their contrary opinion. I find the following facts on the His Honour's findings were numbered 1 to 7. The first dealt with the respondent's situation before the accident, his education, skills and experience, which, his Honour observed, were relevant to the question of his future employment from about age 55 to 65. The second finding was expressed as follows: WABW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NEW SOUTH WALES) v MESITI (Sheller JA) "T find that the first accident (13.11.85) was caused solely by the negligence of NB Elliott, the insured. I also find that the second accident (13.4.87) was caused solely by the negligence of the insured RC Smith. In neither accident was the plaintiff guilty of contributory negligence. I accept the plaintiff's versions of the accidents." This, together with what followed immediately under the heading "Issues", was all his Honour said about negligence. The third finding concerned the injuries suffered by the respondent in the first accident. His Honour observed: "If the plaintiff was already suffering from a latent condition ie, degenerative changes and disc narrowing with a congenital fusion at C2-3 it had not effected [sic] his ability to work hard." The fourth finding related to the period between the first and second accident. His Honour said: "After the second accident he again suffered acute pain to his neck and back and was unable to walk (T 11). He suffered further and/or aggravated injuries affecting his left leg and foot. Thereafter he has undergone a course of specialist treatment over a number of years including injections, manipulation, the cutting of nerves." The fifth finding was that the combined effect of the two accidents had been to prevent the respondent from returning to the workforce full time as a bricklayer. His Honour said that his age, his continuing disabilities and the state of the economy made him almost unemployable (T.26). The judgment went on: "The big issue has been: how long could he have worked as a bricklayer anyway even without these two accidents? The defendant reminds me of his pre-existing condition, the pre-existing degenerative changes and the physical demands of bricklaying (T.21, 22). Where the opinions of Dr Rivett and Dr Scarf conflict, I prefer those of Dr Rivett." The sixth finding was as follows: "Doing the best I can, I find that it is unlikely that the plaintiff would have continued to work full time at the same rate past age 55. Thereafter it is unlikely that he would have moved across into any supervisory or management for which he was not trained or equipped. I do not say that he would have stopped work at 55 or thereabouts. I find that his income from part time bricklaying and related building work of a less physically demanding kind would have progressively declined thereafter. This tendency I have taken into account in the global figure for his future economic loss to age 55 and thereafter. I do not consider that the plaintiff's submissions and figures sufficiently take into account the vagaries of the building industry. I have allowed a bigger discount." The seventh finding related to the capacity and earnings of successful bricklayers and the sort of job that the respondent was left able to do. His Honour said that the task of identifying and separating items of damage referable to the first and not the second accident had been an almost impossible and artificial job. He stressed that he found the second accident aggravated and exacerbated the condition and injuries from which the respondent was already suffering. There followed a schedule of damages: "Agreed medical out of pockets (T.80) 10,734.38 Past economic loss $112,000 EXCLUDING interest (NB has received DSS 112,000.00 payments of $57,000) 8 UNREPORTED JUDGMENTS General damages for pain and suffering for 60,000.00 both accidents Future economic loss to include some 250,000.00 cushion for period after age 55, diminuendo $432,734.34 FINDING ON NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE According to the respondent the first accident occurred when he was driving in the kerbside lane past a line of traffic proceeding in the same direction and in the lane on his right, which appeared to be waiting to turn at the intersection of Marrickville and Wardell Roads. The offending vehicle, driven by Mr Elliott, turned suddenly and without warning to its left from this line of traffic and hit the respondent's vehicle. In large measure the evidence of Mr Elliott and his son, who was a passenger in his father's vehicle, was the same as the respondent. The only point of difference which survived cross examination was that Mr Elliott insisted that he put on his left hand indicator before turning across the inside lane. It was, of course, open to his Honour to accept the respondent's evidence. If the respondent's evidence was accepted, his case on negligence was overwhelming. It was a powerful case if the account given by Mr Elliott and his son was fully accepted. There was no basis for a finding of contributory negligence by the appellant. The second accident occurred when the respondent was in his vehicle stationary at a set of lights in Parramatta Road, Leichhardt. The car driven by Mr Smith went into the back of the respondent's vehicle causing it to go forward into the back of the vehicle in front. The only reason advanced by Mr Smith for colliding with the respondent's car was that he had had a sneezing attack. Again the respondent's case on negligence was overwhelming and there was no basis for a finding of contributory negligence by the appellant. The only point in issue was the force of the impact. The respondent said that ie force of the impact was "Very big". Without explanation his Honour found that both accidents were relatively minor in terms of force of impact. In my opinion, the appellant is justified in complaining about the lack of reasoning given to support his Honour's conclusion on liability. Of the location of the accidents no more is said than one was at Marrickville and the other at Petersham. No mention is made of the fact that two vehicles were involved. The appellant submitted that conflicts in the evidence of the two drivers were not dealt with. All this is true. Ordinarily a judge is required, where liability is in issue, to say more than that an accident occurred at a particular place, on a particular date, that he or she finds the accident was caused by the negligent driving of the defendant's insured and that he or she accepts the plaintiff's version of the accident. In my opinion, a party is entitled to expect of a judgment that the judge spell out what happened and where and when it happened, summarise the evidence that goes to liability and make his or her findings on the evidence indicating, where there is conflict, why some rather than other evidence is preferred. I do not mean by this that a failure to follow this pattern in part or perhaps in whole will necessarily require a new trial. The present case on the finding of negligence is an example. If the only complaint in this appeal was the failure of the judge to give adequate reasons for finding negligence I would not order a new trial. The judge accepted the respondent's version of what occurred. If there had WABW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NEW SOUTH WALES) v MESITI (Sheller JA) been persuasive and critical contrary evidence the principles enunciated by Samuels JA in Mifsud v Campbell would suggest that a new trial must follow. However consideration of the evidence leads to the conclusion that his Honour's findings on this aspect of the case were correct. THE MEDICAL EVIDENCE His Honour recognised that there was a contentious area of orthopaedic medicine exemplified by the evidence of Dr Rivett on one hand and that of Dr Scarf on the other. He did not say what this area of contention was though he did make a finding that if the respondent was already suffering from a latent condition ie, degenerative changes and disc narrowing with a congenital fusion at C2-3, it had not affected his ability to work hard. When he came to what he described as the big issue he referred to the appellant's submission about the respondent's pre-existing condition, the pre-existing degenerative changes and the physical demands of bricklaying and said that where the opinions of Dr Rivett and Dr Scarf conflicted, he preferred those of Dr Rivett. In no part of his judgment does he summarise this evidence, explain where the opinions conflicted or give reasons for his preference. Thus the appellant was left to refer the Court to various places in the transcript of the two doctor's oral evidence to demonstrate conflict. It is obvious that this is unsatisfactory. It suggests that the function of this Court is to read all the evidence, without any assistance from the trial judge's judgment, and decide whether the conclusions reached were right or were conclusions open to the trial judge to find. It is part of the task of a trial judge to consider the evidence and arguments of the parties and, when reaching a decision, inform them of the basis for it. An important reason for this is to assist an appeal court, if there is an appeal; Pettitt v Dunkley (1971) 1 NSWLR 376 at 380. It is not a performance of that task to tell the parties, in effect, that if they read and understand all the evidence they will appreciate the conclusion reached. In my opinion, in this case the failure of his Honour to explain the basis of his finding on the medical issues offends the principle that justice must not only be done but be seen to be done and, unfortunately, requires that there be a new trial. LOSS OF FUTURE EARNING CAPACITY The respondent was born on 21 September 1945 and was therefore aged 45 at the date of trial. His Honour referred to his peculiar skills in the area of laying bricks quickly and expertly, the physical demands involved and the fact that his background education and experience had not equipped him in the areas of contracts, quotations, management and building supervision. All this was relevant to the question of his future employment from about age 55 to 65. His Honour found that it was unlikely that the respondent would have continued to work full time at the same rate past age 55. He found that his income from part time bricklaying and related building work of a less physically demanding kind would have progressively declined thereafter. He said that he took into account this tendency in the global figure for his future economic loss to age 55 and thereafter. He did not consider that the respondent's submissions and figures sufficiently took into account the vagaries of the building industry. "I have allowed a bigger discount." He regarded the respondent's age, his continuing disabilities and the state of the economy as making him almost unemployable. So far as the judgment revealed it, this was the material which based the award for future economic loss "to include some cushion for period after age 55, diminuendo" at $250,000. No mention is made in the judgment of the net wage or discount used. The respondent's submissions referred to a document in evidence dated 25 July 1991 which showed calculations based on a current 10 UNREPORTED JUDGMENTS comparable bricklayer's net wage of $605 per week assuming the respondent worked for periods from up to age 55 years to up to 65 years using the 5% multiplier and deducting a discount of 15 percent. The shortest of these periods produced a total amount of $212,334; the largest $342,697. Presumably his Honour's conclusion that it was unlikely that the respondent would have continued to work full time at the same rate past age 55 led him to start with the lowest of these figures. What bigger discount he then applied is not revealed. Nor is the amount of the cushion. In defending this part of the judgment the respondent relied upon the Court's decision in Government Insurance Office of New South Wales v Blanusa (unreported) 10 August 1992. That case concerned a motor vehicle accident. Liability was admitted and the action proceeded as an assessment. The trial judge awarded the plaintiff an amount of damages which comprised a sum for out of pocket expenses and a sum for other heads of damage, covering general damages for pain and suffering, past and future, and damages for loss of earning capacity with a cushion for future unemployment and under employment. A claim for past economic loss had been rejected. Handley JA, who gave the principal judgement, with which the other members of the Court agreed, said that it was common ground between the parties that the trial judge fell into error in awarding a single lump sum for the heads of damage other than out of pocket expenses. There was therefore an appealable error which prima facie entitled the Court to intervene. The judgment showed that the trial judge had dealt in some detail with the medical evidence and the evidence given by the plaintiff. Handley JA rejected the respondent's submission that it could make good the judge's assessment upon the basis of an additional award for past economic loss. His Honour went to the findings about the nature of the plaintiff's injuries and disabilities. He accepted that the sum properly allowable for general damages was in the range from $40,000 to $60,000 and that the possible allowance for the chance that the plaintiff would suffer economic loss during the period from age 51 to age 65 was potentially quite substantial. He concluded that the verdict for $100,000 damages for general damages and future economic loss had not been shown to be erroneous or outside the range of a sound exercise of the trial judge's discretion. The principles in Robinson v Reilly (1971) 1 NSWLR 403 were applied. The Court could be comfortably satisfied that in the result the assessment of the trial judge had not been shown to be excessive. The challenge in Blanusa's case was limited to the award of a global figure for general damages and future economic loss. It was not expressed to be one based on a failure to give reasons, except to the extent that there was no breakup between the two heads of damage. That case is distinguishable from the present case. In the present case the trial judge gave no reasons for the amount that he arrived at for future economic loss beyond saying that the respondent would not have been able to work full time as a bricklayer beyond the age of 55 and that the discount allowed in submissions and figures put forward by the respondent was not sufficient. In my opinion, the failure to explain the basis upon which the sum for future economic loss was calculated amounts to a further breach of the principle that justice must not only be done but must be seen to be done. CONCLUSION The appeal should be allowed in part. I am satisfied that the only conclusion open on the evidence was that in both accidents the driver of the other vehicle was negligent and that there was no material which would support a finding of WABW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NEW SOUTH WALES) v MESITI (Sheller JA) contributory negligence. Accordingly I think that in both proceedings there must be a new trial limited to damages. I propose the following orders: 1. Appeal allowed; 2. Except on the issue of liability in both proceedings, set aside the verdict and judgment for the respondent; 3. Order a new trial in both proceedings limited to damages; 4. The costs of the first trial to be in the discretion of the judge hearing the new trial; 5. The respondent to pay the appellant's costs of this appeal and to have a certificate under the Suitors' Fund Act 1951. 1. Appeal allowed; 2. Except on the issue of liability in both proceedings, set aside the verdict and judgment for the respondent; 3. Order a new trial in both proceedings limited to damages; 4. The costs of the first trial to be in the discretion of the judge hearing the new trial; 5. The respondent to pay the appellant's costs of this appeal and to have a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant: HJ Mater Instructed by: GM Meadows Counsel for the Respondent: RC Tonner Instructed by: Michael J Miceli and Associates