WILLIAMS v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 6 July 1995, 6 July 1995 [1995] NSWCA 517 Motor vehicle accident — Quantum of damages Loss of chance to pursue career of professional footballer Appeal from District Court — Quantum of damages for loss in motor vehicle accident Loss of chance to pursue career of professional footballer — Verdict of $381,425.70 Loss of chance not undervalued — Appeal dismissed with costs — No question of principle. ORDER Appeal dismissed with costs. Mahoney JA On 20 January 1985 the plaintiff, Mr Rohan Kym Williams, was involved in a motor vehicle accident. He was then aged approximately fourteen years and seven months. He was given, in the course of his treatment, the care which ordinarily would be given to a person suffering the injuries that he did. He went from the Wagga Wagga Hospital to Flinders Hospital in Adelaide and was subjected to the operations and the procedures that are referred to in the judge's judgment. It is not necessary for me to detail them to the extent that the judge did. It is sufficient to say that, as the judge found, he suffered a serious injury to his right knee, namely an intra condylar fracture of the distal femur involving the distal femoral epiphysis and extending medially through the metophysis in the manner to which reference is made in the medical reports. He also suffered a significant injury to his right ankle, abrasion to his left foot and to his back. His Honour detailed the circumstances and the problems that were inflicted upon him by the accident. He was involved in treatment of the nature of physiotherapy, and ultimately in March of 1986 underwent an operation for the removal of the screws that had been inserted. He engaged in gymnasium exercises with a view to improving the most serious of the injuries, the one that had the greatest effect remaining with him, namely that affecting his right knee. Unfortunately, he continued to suffer difficulties with the right knee. He attempted to play football in the Australian football code, both at school and subsequently, and the details of that are set forth in the judge's judgment. I shall not recapitulate them. Ultimately he brought proceedings for damages in the District Court. On 9 December 1994 his Honour Acting Judge Cullen, as he was, awarded him a verdict of $381,425.70. That verdict was made up as follows: $2,500 for the cost of a future operation which he may or will probably undertake by reason of the injured knee; $8,925.70 agreed out-of-pocket expenses; $60,000 general damages; $150,000 for future economic loss; $125,000 for past economic loss; and $35,000 for interest. The total verdict was, as I have said, $381,425.70. 2 UNREPORTED JUDGMENTS The plaintiff has appealed to this Court against the quantum of the judgment. The submissions have been made both in writing and orally and are directed to three matters: past economic loss; future economic loss; and general damages. The nub of the complaint in relation to economic loss lay in the prospects which the plaintiff had, of pursuing a career as a professional footballer. Details were given in the evidence of the structure of The Australian National Football League. It is not necessary for me to recapitulate them. It is said that the plaintiff contemplated that he would have taken an active part in the South Australian portion of the Australian football game and would have moved up through that to a national team, perhaps or probably the South Australian national team and, again, perhaps or probably, from that to a team in Victoria or in one of the other States. The prospect held out was, it is said, that he would have become a player of eminence in the Australian National Football League at national level and would have earned the rewards which a professional footballer of note would have earned in those activities. It is upon that possibility or probability that the claims for past and for future economic loss have been based. It is not necessary for me to pursue the detail of how the moneys said to have been lost because of the injury in that regard have been made up. Figures were detailed at the trial and the parties in the end have no dispute as to, as I understand it, the mathematical calculations that were involved. The details are set out in the written submissions of the respondent to which reference has been made by Mr Hall in his oral submissions. The substance of the matter is, I think, generally as follows. In relation to past economic loss it was suggested that if the plaintiff had played the four seasons, which it is contemplated or suggested he would have played, that is between 1991 and 1994, he would have received a sum calculated as $171,599. The judge, in the course of his judgment, discounted that amount for the contingencies to which he referred, and to which I shall refer, and awarded the plaintiff $125,000. The nub of the complaint, in relation to the award for past economic loss, is that the discount, which is approximately 27 per cent of $171,599, is too large and appealably too large. Mr Hall, who has dealt with the matter in great detail in both his written submissions and his oral submissions, placed particular emphasis upon the structure of the rewards which it is said the plaintiff would have earned, and the findings of the learned judge. It was agreed before the judge that, as far as past economic loss was concerned, the parties were involved in evaluating the lost opportunities that would have been available to the plaintiff (then, as I have said, about fourteen and a half years of age) in relation to pursuing a professional football career of the kind referred to. It was necessary to place a valuation upon that lost chance. Mr Hall, quite properly, placed considerable emphasis upon the valuation which the judge made in his findings, upon the assessment which the judge made in his findings, of the likelihoods in relation to the course of the plaintiff is career had he not been injured. The learned judge, in the course of his judgment, said this: "Based on the evidence before me I am of the opinion that the plaintiff would almost certainly have reached the level in his sport to have played for an AFL team in 1991. Whether it had been the Adelaide Crows or some other team it is WRAULIAMS v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Mahoney JA) hard to say. However, in my view he had the requisite talent, size, physical make up and determination to succeed in this regard. It then becomes a matter for the court in assessing the value of this lost chance to look at the various discounting factors in order to ascertain as best the court can the value of the loss. I should say in coming to my view it was almost a certainty and I take into account both the evidence of Mr Bertelsmeier on the plaintiffs performance before the accident as well as the determination shown in his performances after the accident, where he attempted to continue in the face of adversity which he suffered right up until the plaintiff was no longer being invited to be a member of the club. When looking at the question of the discounting factors one must take into account the possibility of some loss through injury, although I note and accept the evidence relating to insurance payments and the requirements of the club pursuant to the contract draft which was tendered, exhibit 2. One must take into account the question of whether the plaintiff would have been in the twenty-one players selected at the start because of the significant drop in the contractual relationship for the $200 per match, if he were not in the twenty-one and also the normal contingencies of life. Given my findings in relation to the plaintiff's abilities and determination I am of the view that because of the high probability of him attaining that position by the beginning of 1991 and maintaining it up to the date of hearing I should award the sum of $125,000 for past economic loss. To this I would add interest at 7 per cent for four years, a further $35,000." Mr Hall's submission was that the judge had found that the plaintiff would "almost certainly have reached the level in his sport to have played for an AFL team in 1991". He referred to the fact that in his judgment the judge said that he was of the view that there was "the high probability of him attaining that position by the beginning of 1991 and maintaining it up to the date of hearing". His submission was that in view of the finding that the chance which the plaintiff lost was such that there was the high probability of his doing what the judge indicated, it was wrong to discount the amounts which he otherwise would have earned by the order of 27 per cent. It was submitted that the discount should have been of the order of about 5 per cent. It is, in my opinion, very difficult to assess the uncertainties involved in a situation of the kind with which the judge was confronted. There were a number of uncertainties. The judge, in assessing the likelihood of the plaintiff reaching such a level of sport as to have played for an AFL team in 1991, spoke in terms of "almost" certainty. He emphasised again the "high probability" involved in his assessment. Yet the position remained that in his view the chance which he was to value was not a certainty but involved some uncertainties, uncertainties which could have destroyed or reduced the value of the chance. The judge, in taking into account these uncertainties and subsequent uncertainties, had in mind matters to which reference was made in argument and otherwise. These included, amongst others, the possible injury to the plaintiff, the possibility that he would lose "form" or perhaps also motivation, and the normal contingencies of life appropriate to be taken into account in the evaluation of the loss of a chance in the context of past economic loss. All of these uncertainties are, I think, of substantial order. It is obvious that the judge took that view of the matter. He was faced with a calculation of probabilities which it must have been very difficult to make. I think that, giving full effect to the verbiage that he used, such as "almost certainly" and "high probability", the judge indicated, by his discount, what he meant by that degree of probability and how, in his opinion, 4 UNREPORTED JUDGMENTS that probability was affected by factors such as those to which I have referred. I have referred to some of the factors; no doubt there are others which the judge also had in mind. In the end, I am not satisfied that a discount of 27 per cent, in relation to the career which a fourteen and a half year old school boy was likely to be able to follow from January 1985 to the end of 1994, is a discount which is beyond the range of a sound discretionary judgment. The principles to be involved in considering these matters on appeal are not in doubt, they are well settled. In addition, it is not necessary for me to state precisely the verbiage of the principles to be extracted from cases such as Moran v McMahon (1985) 3 NSWLR 700 and the other cases frequently applied in this Court. It is sufficient, in my opinion, to indicate that having reconsidered the matter, as on a rehearing, I am not satisfied that 27 per cent discount was wrong. It is a discount generally of the order which I myself would have applied. In dealing with past economic loss I have not sought to deal with all of the matters to which Mr Hall, in his detailed submissions, has made reference. The views which I have formed are, I think, sufficiently indicated by what I have said. It is, however, appropriate that I refer to one matter. Mr Hall submitted that in the assessment of past economic loss it is not proper to take into account the discount which, in relation to the future loss, is ordinarily applied in respect of what is described as the contingencies or vicissitudes of life. That discount is ordinarily of the order of 15 per cent. He did not, I think, exclude the possibility of taking into account a discount for such matters. But his emphasis was, I think, upon the fact that the discount on past economic loss is different from that made in relation to future economic loss. However, there are cases, and I think the present is one, in which it is proper to make some discount for such a factor. One case may illustrate this. There is little doubt that uninjured the plaintiff would have followed a lifestyle different from the lifestyle which he followed following his injury. The fact that (as the events have shown) the lifestyle which he in fact followed resulted in no vicissitudes of life affecting him detrimentally to a substantial degree, does not mean that had he followed the other lifestyle he would not have been unaffected. It may be that ordinarily one assumes that one lifestyle is much the same as the other, that there is no substantial difference between them. That does not necessarily follow in the case of a young boy, such as this plaintiff was, who would undertake rigorous training and go through the activities which were contemplated in preparation for a professional career he would have undertaken. Uninjured, he would, for example, have played or sought to play four season of top grade professional football with the attendant risks of injury or the like. It is not necessary to pursue this aspect of the matter further. But it is proper, as I have said, to refer to this portion of the argument of Mr Hall. I think his Honour was entitled to take into account some discount in relation to the vicissitudes of life. His Honour did not quantify that discount precisely. I am satisfied that his Honour, insofar as he took this factor into account, did not take it into account in a manner which, in principle, was wrong. I come then to the second matter to which reference was made in this appeal, namely the assessment of future economic loss. Mathematically the parties were of a consensus that on the assumptions which the plaintiff had suggested the plaintiff might have earned, uninjured, in a professional football career, something of the order of $366,000 to $375,000. The assumptions involved, for example, that he would continue as a player up to about the age of thirty-two, that WAULIAMS v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATIONS (Mahoney JA) thereafter he would spend some time as a player/coach, perhaps three seasons, and would then undertake other activities, dependent upon the extent of the reputation that he had achieved as a professional football player. The make-up of the sum of $375,000 which at one stage was suggested on behalf of the plaintiff was generally as follows: $298,262 was attributed to business and match play to the age of thirty-two; $10,715 was attributed to three seasons as player coach; and a sum of $65,892 was attributed to, as I may describe it for brevity, player retention scheme of pay. The judge, in approaching the matter, adopted a different approach. His Honour did not deal in precise detail with all of these figures. He did not simply adopt them as the appropriate approach. He appears to have concluded that an amount of $240,000 should be awarded for, as I have described it, the business and match play, up to about the age of thirty. He then applied a discount of approximately one-third for the kinds of uncertainties and contingencies to which he had regard, leaving a figure of $160,000. He then made a further comparatively small discount for, as it was described, "vagaries", of $10,000 and he awarded $150,000 for future economic loss. I mean by this, of course, that the sum was awarded for the loss of the chance which the plaintiff would have had had he been able to follow a professional football career, as it was delineated for him in evidence. It is suggested that the loss post-trial would have been of that order. The judge awarded $150,000 in relation to the loss of that chance. It was then submitted that, having regard to the findings which the judge made, this discount was excessive. The findings which the judge made and which were properly relied upon by Mr Hall were set out in the following terms: "Tn relation to the future the net figures are between $366,000 and $375,000, mathematically agreed between the parties, however allowing for the vagaries of football itself and allowing for the normal contingencies of life and allowing for a career perhaps not lasting as long as up to thirty-two or thirty-five, I am of the view that a fairly significant discount for contingencies should be made. I note that if the plaintiff continued up to age thirty in the Australian Football League his loss undiscounted would be about $240,000 and if one discounts this by a third for the multiplicity of contingencies, that would seem to be the appropriate way to come to a figure, however discounting even further to ensure that the vagaries are taken into account I would allow the sum of $150,000 for future loss of earning capacity in relation to his lost career." Again, it is to be borne in mind that what was being assessed was the chance, which a boy of fourteen and a half years would have had, to pursue such a career and to earn money of the relevant order had he not been injured. The uncertainties affecting those matters, on any view, remain substantial. I have in mind what the judge said in relation to the probabilities as at the date of trial. But his Honour was required to take into account, as he described them, the vagaries of football itself and the normal contingencies of life. In the end I am not satisfied that the discounts that he applied were beyond those which could have been applied in the exercise of a sound discretionary judgment. Again, I would come to the view that even assuming the high degree of probability in attaining the positions to which the judge referred, the possibilities, the contingencies affecting the career from the date of hearing onward must, on any view, be very substantial. One can take account of the evidence which was given in this regard taking account of, as I may describe it, one's own common sense. 6 UNREPORTED JUDGMENTS Reference was made in argument to the predictions which had been made by various witnesses. One of the witnesses upon whom considerable reliance was placed, a Mr Bertelsmeier, himself suggested that if one took into account the contingencies that were involved, the degree of possibility of the plaintiff not successfully pursuing his prospective career were significant. In the course of his evidence, in answer to Mr Hall, he said this: "Knowing Rohan Williams as well as I did at that stage I would have thought that there would be a ten per cent, may be a fifteen per cent chance of outside factors influencing his career path". He described this as "very much outside" and went on to qualify and add to what he had said. The factors that have been described as contingencies and the like would have affected, inter alia, whether he would have attained the rank in the professional football suggested, whether he would have maintained it, whether he would have earned the moneys in question, the extent to which his motivation would have been maintained, the extent to which he would, for example, have been able to work with those associated with him in football and competing with him, and other matter which it is not necessary further to detail. In all of the circumstances I am no convinced that the assessment was wrong. I would adopt it as an appropriate assessment for the purposes of this case. I come finally to the question of general damages. The general principles for review on appeal of such an award as this are not in question. It was suggested that some $100,000 should have been given. I have referred briefly to the extent of the plaintiff's injuries, and in referring to them briefly as I have, I do not mean to understate the effect of them. The total effect of them on the plaintiff and the plaintiffs future activities was the subject of assessment by the judge. His Honour, in his judgment, in assessing the "severe injury to the plaintiffs knee, was of the view that "it does not affect a lot of aspects of hi life, as can be seen from his various activities overseas". His Honour detailed the activities that he had undertaken in the sphere a football following his injuries and following the surgery and treatment which he ha had. It is obvious that the state of his knee was such that he could engage in football to an extent which would be the subject of admiration of many, although not reaching the heights of his own desires. In the course of his own activities following the injuries he went overseas, was engaged for two years in construction work involving heavy lifting, building houses and the like; he indulged in water-skiing and wind surfing, and in fact for some time was involved in teaching in respect of both of these activities. It is obvious tha notwithstanding the seriousness of the injury that he had suffered, matters of this kin are to be taken into account in assessing the physical effects of the injury upon him. I am conscious of the deprivation that he has suffered, in the sense of his loss of the possibility of a future career as a professional footballer. The frustration an disappointment involved in this is not to be understated. The sums awarded for the loss of a possibly lucrative career were not insubstantial and the need to avoid overlapping is to borne in mind. But in the end, taking account of his present condition and his future difficulties, I am not satisfied that the amount of $60,000 is outside the range of a sound discretionary judgment. Ihave dealt with these matters, perhaps at greater length than would normally have been done in an appeal which has been dealt with as this appeal has. I have had regard to the detail of the evidence and the submissions that have been made. I can understand the effect which this injury has had upon the plaintiff and what, WAULIAMS v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Mahoney JA) uninjured, he may have hoped from life. But, in the end, I am satisfied that this is not a case in which the appeal should succeed. I therefore propose that the appeal be dismissed with costs. Clarke JA I agree. Meagher JA I agree. Mahoney JA The order of the court therefore is that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: PM HALL QC/DJ HOOKE Instructed by: TURNER WHELAN Counsel for the Respondent: HM DI SUVERO Instructed by: GM MEADOWS, NSW IMC