KNIGHT v CLARKE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 10 March 1995, 10 March 1995 [1995] NSWCA 247 DAMAGES — PERSONAL INJURIES — DEATH OF PLAINTIFF AFTER TRIAL. Appeal by defendant from the assessment of plaintiff's damages under the Motor Accidents Act - respondent died while appeal pending - appellant contends damages should be reassessed - contends trial judge failed to allow for contingency of early death - Held: By taking into account plaintiff's life expectancy trial judge had allowed for possibility of premature death Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 applied - appeal dismissed. Handley JA This is an appeal by the defendant from the assessment of damages payable to the plaintiff under the Motor Accidents Act arising from injuries sustained on 24 September 1990. Abadee J gave judgment on 27 July 1993 awarding the plaintiff the sum of $263,303.46. The defendant's notice of appeal challenged the assessment of the plaintiff's non-economic loss as 60 per cent of a most extreme case, the assessment of future economic loss based on an on-going loss of $186 a week, and what was said to be an excessive award for future care. Mr Mcllwaine, who has appeared for the appellant, but did not appear below, has not sought to argue any of these grounds. At the start of the appeal the Court's record was amended to reflect the fact that the respondent died between 4 November and 13 December 1994. The Court ordered that her Administrator be substituted as respondent to the appeal. Mr McIlwaine has submitted that the Court should act upon its knowledge that the respondent died while the appeal was pending and, either re-assess the damages, or remit the matter for re-assessment to the Common Law Division. In making these submissions Mr MclIlwaine attempted to distinguish Doherty v Liverpool District Hospital (1991) 22 NSWLR 284. In developing his argument he submitted that the learned trial judge had failed to allow for the possible adverse contingency of early death in assessing the plaintiff's damages for non-economic loss, future economic loss, future care and future expenses. The trial judge did not advert in express terms to possible adverse contingencies in arriving at his assessment for these components of the judgment. However the existence of adverse contingencies is so well understood that no significance should be attached to the fact that his Honour did not expressly refer to them. In any event his Honour based his assessment for future care on the plaintiff's statistical life expectancy at the date of trial of 39.7 years. It is a reasonable inference that his awards for future expenses and future non-economic loss also had regard to that life expectancy. 2 UNREPORTED JUDGMENTS His Honour allowed a discount of 25 percent for adverse contingencies in assessing the plaintiff's future economic loss increasing the conventional allowance of 15 per cent because of adverse factors affecting the plaintiff established in the evidence. None of these matters establishes that his Honour failed to take account of possible adverse contingencies in relation to the plaintiffs life expectancy when assessing her damages. The life expectancy of the plaintiff at the date of trial of 39.7 years was an average, which took into account the fact that half her age group will live longer and half will not live as long. The plaintiff's life expectancy, therefore, reflects the possibility that members of her age group will die prematurely many years before the average life expectancy of the group. I am therefore satisfied that by taking into account the plaintiffs life expectancy his Honour also took into account to some extent the possibility that she would not live for very long after the judgment. Of course his Honour did not assess damages on the basis that the plaintiff was likely to die within two years of his assessment. In Doherty v Liverpool District Hospital (above) as appears at 286G and 290 A-B, the jury did not have before it any precise evidence of that plaintiff's life expectancy. However they were given the conventional direction by the trial judge to take adverse contingencies into account in assessing the plaintiff's future economic loss, including the possibility of premature death. As events turned out the conventional discount of 15 per cent could not possibly prevent over-compensation in cases such as Doherty and _ this. Nevertheless in Doherty's Case the Court held that the jury's verdict could not be disturbed since the jury had been directed to take into account the normal vicissitudes of life, including that of premature death. In those circumstances I am of the view that Doherty v Liverpool District Hospital (above), treated as governing an appeal from a decision of a judge sitting alone, is directly in point. I would, therefore, reject the submissions of counsel for the appellant. It follows the appeal should be dismissed with the usual consequences. Clarke JA I agree. Sheller JA I also agree. Clarke JA: The order of the Court will be - appeal dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: R S McILWAINE Respondent: SM HAMMAN SOLICITORS: Appellant: FERGUSON HOLZ Respondent: STANGER and CLARKE