LE v DOBE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA, COLE JA and BEAZLEY JA 13, 14 May 1996 [1996] NSWCA 319 DAMAGES — personal injury — motor vehicle accident — assessment of future economic loss Handley JA. I agree with Beazley JA. Cole JA. I agree with Beazley JA. Beazley JA. This is an appeal from a decision of Garling J of the District Court on 30 May 1995. The respondent, who was aged 47 at trial, was injured in a motor vehicle accident on 12 February 1986. Liability was admitted by the appellant and the parties agreed before trial that the respondent's contribution for contributory negligence should be assessed at 12.5%. There was also agreement between the parties as to the loss suffered by the respondent as a result of the accident, save for past loss of income and future loss of earning capacity. The sole issue on the appeal is the correctness of the sums which his Honour awarded for those items. At the date of the accident, the respondent was working as a contract courier with Avant Couriers and had been so engaged since 1979. She owned her own vehicle and was paid on a set scale. His Honour found that the respondent had established herself as one of Avant's top couriers. In October 1985, the respondent obtained a number of courier runs for Westpac and was given preference for other work. She worked 15 hours and travelled 461 kms a day. His Honour found that, during the period 8 October 1985 and the date of the accident on 12 February 1986, the respondent earned in excess of $23,000. Grounds: Initially there were 6 grounds of appeal. Ground 1 was a general ground that the damages awarded for loss of income were excessive. This ground was not separately argued as it was subsumed in the more particular grounds 2-6. Ground 2 asserted that his Honour erred in failing to take into account, in assessing loss of income, the earnings of a comparable worker, namely another courier engaged by Avant Couriers, a Mr Scriberros. However, counsel for the appellant conceded during argument that there was no truly comparable worker in this case. This ground of appeal therefore fails. Grounds 3 and 4 may be dealt with together. In those grounds, the appellant challenged as inadequate the trial judge's discount in respect of economic loss. In particular, counsel for the appellant submitted that the trial judge should have made an allowance (and thereby an appropriate discount): (i) for the fact that the Westpac courier run which she was undertaking at the time of the accident was not available for a period of time following the accident; and JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Mon Feb 25 18:19:02 2008 /reports/caseml]/case/urj/9607853 UNREPORTED JUDGMENTS (ii) for the possibility of the respondent being disinclined to continue working at the rate of 15 hours a day, as she was working at the time of the accident. Before dealing with these two matters it is appropriate to refer to the task which a trial judge is required to undertake in assessing past (or for that matter) future economic loss. In Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638, Deane, Gaudron, McHugh JJ (with whom Brennan and Dawson JJ agreed with a slight qualification to which is not necessary to refer) stated at 642-643: When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which haveor have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take the chance into account in assessing the damages. The judge found that the Westpac run had only been lost for a short period and accepted the evidence of Avant's general manager that had the respondent lost this work she would have looked and probably got other suitable work. The trial judge also held that he was satisfied that the respondent would have kept working at her pre-accident pace over the 9 year period from the date of the accident to the date of trial. It is clear from these findings that his Honour took into account the possibilities relevant to each event. He obviously assessed that there would have been no loss of income due to the loss, for a short period, of the Westpac run. He assessed that there was no likelihood that the respondent would work at a lesser pace than she had pre-accident. Accordingly, there was no discount to be made for either of these factors and grounds 3 and 4 must fail. Counsel for the appellant abandoned grounds 5 and 6, save that he submitted that if the appellant successfully established that the discount for past economic loss should be greater than the 5% allowed, the base figure upon which future economic loss was calculated should be adjusted accordingly. However, counsel acknowledged in the courseof argument that the error went the other way and that in fact his Honour had erred in calculating future economic loss on the discounted figure applicable as at the date of trial. There was no cross appeal in respect of this error, which was in favour of the appellant. URJ LE v DOBE (Beazley JA) In my opinion, the appeal should be dismissed with costs. Orders accordingly. 5 Counsel for the appellant: A D M Hewitt Solicitors for the appellant: Windeyer Dibbs Counsel for the respondent: C M Simpson/M Crawford-Fish 10 Solicitors for the respondent: Bryden Doherty and Shead