UNDERHILL v SHERWELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER and BEAZLEY JJA 11 November 1997, 18 December 1997 [1997] NSWCA 325 Torts — Trespass to person — Civil assault — Self defence — Reasonable self defence — Justification — Excessive force — Whether act of self defence excessive — Onus — Whether onus on plaintiff to prove excessive force used or on defendant to prove that there was not. Damages — Damages for loss of chance — Assessment. This was a plaintiff's appeal arising from an incident which occurred on 11 April 1989. The trial judge, accepting the respondent's version of the incident, found that an argument had started between the parties and that the appellant had attacked the respondent with her fists and feet. The respondent had put up his hands to defend himself, and came into contact with the appellant's face. The appellant sustained her injuries on the day she was to be interviewed for employment. The interview was a final interview. On the appellant's action for damages, the trial judge found that the respondent had acted in reasonable self defence. The appellant argued that the nature of her injuries suggested that she was hit with considerable force, far more force than a male putting up his hands simply to ward off a female. One question which arose in the determination of this question was whether the onus was on the appellant to prove that excessive force was used, or on the respondent to prove that there was not. The appellant also appealed against the trial judge's award of damages. HELD, allowing the appeal: (1) The respondent had a right, in the circumstances of the case, to defend himself. Fontin v Katapodis (1962) 108 CLR 177; McClelland v Symons [1951] VLR 157; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; R v Loughnan [1981] VR 443 considered. (2) Any defensive act in which a person who is in danger engages must be reasonably necessary. If excessive force is used the defence of self defence fails. Fontin v Katapodis (1962) 108 CLR 177; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; considered. (3) The onus of proving the reasonableness of the defensive act at all times remains on the defendant. In the circumstances of the case, it was incumbent upon the respondent to prove that the action he took was necessary in order to defend himself from the appellant's attack. Pearce v Hallett [1969] SASR 423 approved; Miller v Sotirpoulos (unreported, New South Wales Court of Appeal, 18 August 1997) followed; McClelland v Symons [1951] VLR 157 not followed. (4) In the circumstances of the case, the respondent did not satisfy the onus upon him that the degree of force exerted was reasonable. (5) The appellant should be assessed as having lost the chance of obtaining the employment for which she was to be interviewed the day of the incident. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Norris v Blake [No 2] (1997) 41 NSWLR 49 followed. Meagher JA I agree with Beazley JA. 2 UNREPORTED JUDGMENTS Sheller JA I agree with Beazley JA. Beazley JA This is a plaintiff's appeal from a decision of Barr AJ in which his Honour entered a verdict for the respondent/defendant in respect of her claim for damages for injury sustained during an incident in which the respondent's hand came into contact with the appellant's face (the incident). His Honour found that the respondent had acted in reasonable self defence. The incident occurred not long after midnight on 11 April 1989. Both the appellant and respondent were, at that time, affected by alcohol. Apart from those two matters, there was little common ground between the parties as to the events preceding the incident. The Nature of the Relationship The parties had met in January 1988. They kept company until August 1988, although the nature of their relationship was in dispute. The relationship was disrupted by an argument in Adelaide, to which I will return. They recommenced their relationship in January 1989. The respondent contended the relationship was a sexual one and that he had provided her with considerable financial support. Except in minor respects, the appellant denied both aspects of the relationship. As to the financial support, not only was the appellant in receipt of social security benefits over a substantial period of the relationship, the respondent was able to provide documentation which supported his version on this issue. The trial judge accepted the respondent's evidence. Similarly, he accepted the respondent's evidence as to the sexual nature of their relationship. His Honour's finding on those matters cannot be disturbed by this Court: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472. Events Prior to the Incident The respondent had been staying at the appellant's house for the three days prior to the incident. On the day before the incident, they had gone to Bondi Junction to buy clothes suitable for a job interview which the appellant had the following day. The respondent said this was the principal purpose of the trip. The appellant said the principal reason for going to Bondi Junction was to keep two appointments, one with her solicitor and one with a doctor. The trial judge carefully analysed the evidence to determine whose version should be preferred. He stated that the: "... Tespective accounts about what happened on the day assume some importance because they bear on the question how much the parties had to drink on 10 April 1989 and whether the [appellant] had anything or anything much to drink." The effect of the respondent's evidence was that they had commenced the day on 10 April 1989 with a champagne breakfast; had drinks at a hotel for about an hour, the appellant matching the respondent "drink for drink"; shared a bottle of red wine over lunch, had more drinks in the afternoon and then equally shared about half a bottle of port over dinner. Counsel for the respondent submitted that his Honour's acceptance of the respondent's evidence on this and other matters was such that the verdict could not be disturbed. See Abalos v Australian Postal Commission; Devries v Australian National Railways Commission. Such a proposition is far too simplistic. The principle in Abalos and Devries relates to the integrity of findings URJ UNDERHILL v SHERWELL (Beazley JA) 3 of facts made by a trial judge based on the credibility of a witness. Such a finding "must stand until it can be shown that the trial judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence ": see Devries at 479 per Brennan, Gaudron and McHugh JJ. The relevance of a particular finding of fact depends at all times on the issue to which the evidence is directed. Save for the question of credit, which was determined in the respondent's favour, and the finding that each party was well affected by alcohol, it is not readily apparent what significance his Honour's finding about the amount each had to drink had to his determination. His acceptance of the respondent's version of the incident was based on his overall finding of credit. It was not based upon the amount each had to drink. The appellant contended that she had independent corroborative evidence to support her version that she had attended her solicitor on the morning of 10 April and had a blood test in the afternoon. As to the former, there was tendered in evidence a letter from John Lloyd & Co solicitors which stated: "On the 10th April, 1989 Mr Lloyd of our office saw M/s Underhill in conference." There was enclosed a copy of his appointment diary for that day. The trial judge found that evidence of little assistance. He also found that even if it was correct, it did not contradict the respondent's version of how much the appellant had to drink during that morning. That conclusion was open to his Honour. The evidence in respect of the blood test was, in my view, more significant and his Honour's rejection of it, at face value, open to criticism. The report from Douglass Laboratories showed that the blood sample was received on 10 April 1989. 10 April was a Monday. In the absence of evidence that Douglass Laboratories had late collection services and worked outside normal business hours, his Honour did not accept that the blood was taken on the same day as it was received by the Laboratory. His Honour found that the blood must have been taken the previous Friday. His Honour's approach to this evidence may have demonstrated a lack of knowledge of what is common practice in respect of pathology services. However, that is a risk the appellant took. Notwithstanding that I would have thought that it was common knowledge that pathology services provide pick up facilities in the late afternoons and that it would not be expected that a blood sample be kept for three days before being collected and tested. I do not believe that such knowledge falls within the area of judicial notice. Nor was such an approach urged on the Court. I should also state, so that there be no confusion about the matter, that these proceedings were heard prior to the commencement of the Evidence Act 1995 (NSW). Accordingly, in the absence of evidence as to these matters, his Honour's rejection of the report from Douglass Laboratories as providing support for the appellant's case, was open to him. Even if his Honour erred in rejecting this evidence, it does not follow that his Honour's acceptance of the respondent's version of the incident was vulnerable to appellate interference. There were other bases upon which his Honour accepted the respondent as a witness of truth and rejected the appellant's version of events. It was open to him, therefore, to accept the respondent's version of the incident. It is convenient at this point to recount the respondent's version of the incident. 4 UNREPORTED JUDGMENTS His Honour found that an argument had started when the appellant asked the respondent to give her $200. The respondent refused. The appellant then implied that if the respondent did not let her have the money, she would earn money through prostitution. The respondent left the house, and stood in the street opposite the house, repeatedly calling the appellant "whore" in a loud voice. In response, she called out "Kevin Maxwell Sherwell, Assistant Signalmaster, South Head". The respondent commenced to leave the vicinity of the house and turned into Alison Road. He heard the appellant running after him. She attacked him with her fists ant feet. He put up his hands to defend himself. He said his hands were never closed into a fist. He was not conscious of having come into contact with the appellant and said he had no intention of harming her. He accepted that he may have come into contact with her nose, but this had not been deliberate. The appellant fell. The respondent noticed that her nose was bleeding but did not observe any other injuries. The parties then returned to the house together. The respondent left the house at the request of the appellant. The trial judge fount that: "The [respondent] had reason to defend himself because his experience in Adelaide showed that the [appellant] might injure him." The Adelaide Incident The reference to the respondent's experience in Adelaide was a reference to the argument which the parties had in Adelaide which had caused a disruption to the relationship in August 1988. His Honour accepted the respondent's version of that incident. It was as follows: "... [H]e and the [appellant] went to the Adelaide Casino on the Saturday night. They had a fair amount to drink there. On the way home they dined at a Japanese restaurant, then called into an hotel and took some beer back to the motel. They drank the beer in bed. The [appellant] hallucinated, saying that she could see her dead brother and friends and asking him, the [respondent], whether he could see them. The [appellant] picked up an empty beer bottle, tried to smash it and jab him in the face with it. Luckily it did not break. The [appellant] quietened down and went to sleep. She was normal again by morning. On the next day, Sunday, the [appellant] got in touch with her friend Lillian, who joined them at an hotel. At the hotel an argument developed and the [appellant] said that she wanted her airline ticket to keep for herself and to go and stay with Lillian. The [appellant] again attacked the [respondent], punched him and tore his shirt. She then telephoned police and claimed he was withholding her airline ticket. The police arrived. The parties told their respective stories to the police, the [appellant] packed her bags and left with the police and her airline ticket." Although his Honour relied upon the Adelaide incident to support his finding that the respondent acted in self defence, the respondent did not give any evidence that he was concerned for his safety for that reason. His concern was immediate - the appellant was kicking him in the shins and hitting him with her fists. The respondent had a right, in those circumstances, to defend himself. See Fontin v Katapodis (1962) 108 CLR 177; McClelland v Symons [1951] VLR 157; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 (CLR 645; R v Loughnan [1981] VR 443 at 448 per Young CJ and King J. However, any defensive act in which a person who is in danger engages, must be reasonably necessary: Fontin v Katapodis per McTiernan J at 181. The question to be asked in such circumstances was framed by Wilson, Dawson and Toohey JJ in Zecevic v DPP (Vic) at 661 in these terms: URJ UNDERHILL v SHERWELL (Beazley JA) 5 "Tt is whether the accused believed upon reasonable grounds that it was necessary in self defence to do what he did." However, if excessive force is used the defence fails. See Fontin v Katapodis, where it was held that the throwing of a piece of glass in self defence, which was capable of causing serious injury, was out of all reasonable proportion to the emergency confronted. It is apparent that the trial judge was satisfied that it was necessary for the respondent to act as he had done. This is implicit from his Honour's finding that the respondent had acted in "reasonable" self defence. That finding would be unassailable if the respondent's version of the manner in which he defended himself was accepted in its entirety. See Abalos v Australian Postal Commission; Devries v Australian National Railways Commission. However, the trial judge only partially accepted his evidence in this regard. He found: "T accept that he believed that all he did was put up his hands in the manner he described. He does not remember coming into contact with her, however, and he must have done.... He might, I suppose, have struck her with other than an open hand, but it seems possible that the injuries could have been caused by a hard blow with the heel of the hand or hands." (emphasis added) It seems that the only finding which his Honour made in this passage was that there was physical contact. He postulated that it may have been from a hard blow with an open hand, but did not make any finding as to whether "the hard blow with the heel of the hand or hands" was as a result of the appellant running into the respondent or whether it was the result of a directed blow or blows. However, it is clear from a passage to which I refer below, that his Honour accepted that the appellant's injuries were consistent with a blow by a fist as described by the appellant. The appellant argued that the nature of her injuries suggested that she was hit with considerable force, far more force than a male putting up his hands simply to ward off a female and more force than was necessary in the circumstances here. The first question which arises in determining this question is whether the onus is on the appellant to prove that excessive force was used, or upon the respondent to prove that there was not. It is suggested in McClelland v Symons at 169-171 that where the plaintiff has established the assault and battery complained of, and the defendant has proved justification, or self defence, the onus rests upon the plaintiff to show that the act of self defence was excessive. This proposition was considered by Bray CJ in Pearce v Hallett [1969] SASR 423. His Honour stated at 428: "T cannot think that under modern conditions the onus of proof can be affected by the form of pleading, still less that a plaintiff who replies specifically alleging excessive force thereby assumes a burden which would not otherwise fall upon him. I venture with some diffidence to make a distinction which seems to me to be at least good sense and I hope good law. The alleged excess may relate to the number of blows or to their nature. If the position is, as in McClelland v Symons (1951) VLR 157, that one blow would have been justified in self defence but further blows would not and the plaintiff alleges several blows and the defendant admits only one, then the onus of proving the further blows must, I think, be on the plaintiff. Each alleged blow is really a different assault and the plaintiff has the onus of proving each such assault. On the other hand, where it is not the number of blows alleged by the plaintiff but their nature and reasonableness which is in dispute, then once the plaintiff proves the blows it seems to me that 6 UNREPORTED JUDGMENTS the onus passes, or at any rate ought to pass, to the defendant to justify them, not only with reference to the necessity for some force but as to the necessity for the particular force. This seems to me to be inherent in Cockcroft v Smith (1705) 2 Salk 642 (91 ER 541).... I see really no answer to the proposition advanced in Miska v Kivec (1959) 18 DLR (2d) 363 that the reasonableness of the force is an integral part of the defence, so long as it is clear that the assault finally relied on by the plaintiff is the very assault which the defendant has undertaken to justify and not some other assault." I agree with this view. The very essence of the defence of self defence is that it is the use of reasonable force. In determining that issue, there may be shifting evidentiary burdens. However, the onus of proving reasonableness at all times must remain on the defendant. This was clearly stated by this Court in Miller v Sotiropoulos (unreported, New South Wales Court of Appeal, 18 August 1997). In this case, there was no direct evidence of the force which was in fact used. There was, however, evidence which his Honour was required to consider to determine whether the respondent had discharged his onus. The first piece of evidence was statements made by the respondent to the appellant's mother, Mrs Dormer, some hours after the assault. The second was a record of interview taken by Detective Senior Constable Corban on 22 July 1989; and the third was the extent of the appellant's injuries. Statement to the Mother After the appellant was taken by ambulance to the Prince of Wales Hospital and a plaster cast applied to her wrist, she was told to return home to change and return to the hospital within two hours. She telephoned her mother (Mrs Dormer) from the hospital and arranged to go to her house in Randwick. The respondent arrived shortly after the appellant got there. Mrs Dormer asked the respondent why he had assaulted her daughter. He replied that he could not remember. The appellant then returned to the hospital. Later, Mrs Dormer rang the respondent and again asked why he had assaulted her daughter. He again stated that he could not remember. He returned to Mrs Dormer's house later on, and when asked why he had assaulted the appellant he again stated that he could not remember. Statement to the Police On 22 July 1989, the respondent was interviewed in relation to the assault "outside 5 John Street, Randwick, about 11:30pm on 11 April 1989". After being cautioned, the respondent stated that he "did not assault her in John Street, whatever happened happened in Alison Road". When asked to explain, the respondent stated: "We had an argument inside the house. She chased me outside the house somewhere near Alison Road. I don 't know whether I hit her or whether she fell over or whether I was defending myself. I can 't remember. We had both been drinking and its all a bit hazy to me. I remember certain things. I didn't just front up and assault her". He signed a record of the conversation that he had with Detective Senior Constable Corban. He then asked what injuries the appellant had sustained. The officer stated that the appellant had alleged that she became unconscious when the respondent had punched her in the face. The respondent replied: "That's not right. When I saw her in the street she was sitting up on the footpath". When told of the appellant's injuries the respondent stated "T don 't think I could have caused all those injuries". The trial judge found that the respondent's statements to the appellant's mother and to the police were explicable and did not amount to an admission. His Honour states that he would not necessarily have expected the defendant to give URJ UNDERHILL v SHERWELL (Beazley JA) 7 a complete account to Mrs Dormer in the circumstances in which she called him to her house when the appellant was present and was hurt and in need of some attention. His Honour stated that the respondent must have said that he was sorry for what had happened the night before, but did not regard that as any admission of responsibility for what had happened. He continued: He and the [appellant] had, on any view, had a blazing row and any party to such a row, feeling innocent or guilty, would probably be feeling very badly about it on the following morning, especially if the other participant had suffered some injury. If the [respondent] said to Mrs Dormer that he could not remember I would not take that to have meant that the [respondent] did not remember anything at all about what had happened. It may equally have been a way of declining to talk to Mrs Dormer about a subject which might have been none of her business. Ultimately I do not think it assists in deciding the issues in this trial to decide whether the [respondent] used the words Mrs Dormer said As to the record of interview, the trial judge found that the respondent had regarded the incident as a private domestic matter and had dealt with it accordingly, "having even then some notion of protecting the interests of the [appellant]". It was submitted at trial that because of what the respondent had said to the police officer, his account of what happened could not be a true one. The trial judge disagreed. His Honour found that the two accounts, that is, his statement to the police and his evidence, were not necessarily inconsistent, and that it was not surprising that he did not tell the police that the appellant was making unreasonable demands on him for money and that the argument had arisen because she had asked for money and he had refused. His Honour also found that the respondent was entitled to believe that the matter was not being treated seriously by the police. His Honour continued: "T think it consistent with his desire to protect the [appellant] and with his understandably naive approach to the interview that he gave a somewhat inept and incomplete account of what had happened. I would not have expected him in those circumstances to give an account which exonerated him if to do so would have asserted serious misconduct the by [appellant]. I am satisfied that the [respondent] was not concerned to do such a thing at that time." Even though a different view could have been taken of this evidence, the trial judge's conclusion was open to him. The other evidence was the extent of the appellant's injuries. The trial judge found that the appellant had exaggerated her injuries. Notwithstanding this, there was objective evidence upon which his Honour determined that the appellant had sustained facial injuries. The appellant's face was swollen and her nose was bleeding. She had a fractured nose which required reduction, resulting in the appellant being hospitalised for approximately 4 days, and X-rays also revealed an irregularity of the left bony margin of the nose "which may be related to a fracture". She also had a fracture of the root of the second upper right molar; which his Honour "assumed" (and therefore must be taken to have found) was a result of the incident. The appellant also suffered injury to her left forearm. However, X-rays demonstrated there was no bony injury. Notwithstanding this, her wrist was in plaster for a few months. The appellant had also alleged that her jaw had been broken. This was not made out on the evidence. However, she did receive an injury to her jaw sufficient to interfere with the fit of the occlusal splint which the appellant already wore. 8 UNREPORTED JUDGMENTS The trial judge stated that these injuries were consistent with a blow to the face with a fist as described by the appellant. However, as no evidence was called about the force which would have been necessary to cause the injuries, the trial judge made his own assessment. His Honour found that the medical reports did not assist in ascertaining the size or position or seriousness of the nasal fracture. The trial judge concluded that none of the medical evidence led him to the view that the plaintiff's injuries might not have been caused by some action taken by the defendant in defence of himself. His Honour did not refer to Dr Bomba's evidence that there must have been "quite a disturbance " in teeth position. There are two difficulties with his Honour's conclusion. First it does not address the question of onus. It was incumbent upon the respondent to prove that the action he took, which on his Honour's finding was consistent with a blow to the face with a fist as described by the appellant, was necessary in order to defend himself from the appellant's attack. His Honour's view that he was not satisfied that the appellant's "injuries might not have been caused by some action taken by the [respondent] in defence of himself' is only consistent with his having assumed that the onus was upon the appellant to prove that more force than necessary was used. Further, although his Honour had earlier recognised in his judgment that, in the absence of evidence as to the force necessary to cause the appellant's injuries, he would have to make his own assessment, he fails to express his reasons for having come to the view which he did. For my part, I cannot conceive how injuries, of the nature received did not involve considerable force. In expressing that view, I am excluding, for the moment, the injury to the arm, which almost undoubtedly was received when the appellant fell to the ground. The evidence does not establish, in my view, that that degree of force was necessary to fend off the appellant. Indeed, on the respondent's version, the only force he needed to exert was to outstretch his hands to ward her off. In my opinion, the respondent did not satisfy the onus upon him that the degree of force was reasonable. Accordingly, I am of the opinion that the defence of self defence should fail. Damages The appellant also appealed against the trial judge's award of damages. The trial judge properly proceeded with an assessment of damages, notwithstanding that he had found a verdict for the respondent. He assessed general damages in the sum of $10,000 and allocated the whole of that sum to a one year period. He rejected any claim for past and future economic loss. The appellant sustained a broken nose which required surgical reduction. The fracture to the root of the molar meant that teeth had to be removed. More serious, however, were the effects the appellant suffered from the injury to her mouth. Prior to the accident, the appellant hat a malocclusion which was being treated conservatively by Dr Marks, dental surgeon. Dr Marks had fabricated an occlusal splint, which he fitted on 28 March 1989. The splint did not fit post-accident and the appellant required surgical intervention. On 28 April 1992, she underwent a bilateral sagittal split osteotomy to rotate the mandible and correct its deviation. She underwent a further 8 months orthodontal treatment. It must be recognised of course, that the appellant had to undergo a considerable amount of orthodontal treatment in any event. Dr Bomba, who recommended the surgery, also gave evidence that her preferred choice of treatment, even pre-injury, would have been surgical intervention. She recognised that sometimes a patient opted for conservative treatment if possible and that the appellant fell URJ UNDERHILL v SHERWELL (Beazley JA) 9 into that category. However, after the accident Dr Bomba said that the appellant had no choice but to have surgical treatment. This was performed on 29 April 1992, the appellant being hospitalised for 4 - 5 days. In my opinion, the trial judge's award of general damages was outside a sound discretionary range ant general damages in the sum of $15,000 should be awarded. As the whole of this is attributable to the past, interest on that amount should be awarded. The Appellant's Employment History The appellant's employment history was varied. Immediately after finishing school, she completed a secretarial course. She subsequently engaged in a number of occupations including that of fashion coordinator, management consultant, cosmetic consultant, public relations journalist and a waitress. At the time of the incident she was unemployed. Her last employment prior to 11 April 1989 was with Mapp Plumbing Services from 21 August 1987 to 13 May 1988. She had a final interview for a job on the day of the incident. Indeed one reason for visiting Bondi Junction was to buy clothes for this interview. The interview was with the New Australian English College at Ultimo, a job in which she states that she would earn around $500 per week She stated that she also had a casual job that evening that she had to go to. The casual job was with Westpac. The rate of pay was about $19.80 per hour. She said that she was going to do it for about four nights a week. Following the assault, she was employed with K B Hutchinson Pty Ltd between 25 September 1989 and 15 November 1989, earning, on average, $500 per week. She told the court that she was asked to leave that job when special work was done on her jaw by Dr Bomba "because they don't want to see their executives walking around that building site slurring their words". She then obtained employment with the Scottish Hospital at Paddington. She worked there from 17 January 1990 to 30 June 1990, earning $240 per week for a 42 hour working week. She states that the job was "perfect" as "it required no speaking". She was then unemployed for about three months. Her next position was with the Royal Hotel at Randwick She worked there until 12 December 1990, earning a total of $4,805. She was then unemployed until commencing with City Tattersalls, where she was employed at the time of the incident. She started as a drinks waitress, and was subsequently promoted to "class 5". She stated that this meant that she had to be able to walk into any position. She confirmed that she had been reasonably satisfied with the earnings that she received in that job. The appellant's pre-and post-accident employment history was, therefore, sporadic. The first question which arises is whether she is entitled to damages for the lost opportunity of obtaining the job for which she was to be interviewed on the day of the incident. The correct approach to this question was explained by Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643: "Tf 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... But unless the chance is so low as to be regarded as speculative — say less than | per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court 10 UNREPORTED JUDGMENTS assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." See also Norris v Blake [No 21 (1997) 41 NSWLR 49 at 67. In my opinion, the appellant should be assessed as having lost the chance of obtaining the employment for which she was to be interviewed the day of the incident. Notwithstanding that her employment history was sporadic, she had held a range of interesting jobs. She had been unemployed for some time prior to 11 April and was in need of money. She had, with the respondent's assistance, purchased new clothing so as to be presentable at the interview. Her desire to be employed ought therefore to be treated as genuine. The interview was a final interview, which means that she must have had reasonable prospects of being selected. It therefore becomes a matter of assessment as to what those prospects were. In my view, her prospects of obtaining the job should be treated as at least 50 per cent. There is often a two or three week delay between interview and appointment and commencement of a position. Accordingly, I propose to allow a period of 20 weeks at $250 for this lost opportunity, making a total of $5,000. The other period of past economic loss which should be taken into account is between mid November 1989, when she lost her job with K B Hutchinson and 17 January 1990. The appellant's evidence was that she lost this job because of her speech, at about the time of the operation. Therefore, an allowance should be made for this period. Accordingly, I would allow a period of 9 weeks at $500, making a total of $4,500. The next question which arises is whether any allowance should be made thereafter. The appellant earned considerably less in her next job at the Scottish Hospital. She was then unemployed for a period of 6 months. It is reasonable to attribute the lower salary received in this position to the fact she had lost her job and had found one suitable to her medical condition. Accordingly, I would allow a period of 24 weeks at $250 per week, being a total of $6,000. That only leaves the question of the period when the appellant was unemployed after her employment with the Scottish Hospital. There was no evidence this was due to her medical condition resulting from this incident. Accordingly, no allowance should be made for this period. Interest on the damages for past economic loss should also be awarded. Out of Pocket Expenses The trial judge should have allowed the cost of the surgical intervention. Although Dr Bomba stated that surgical intervention always would have been her approach to the appellant's treatment, the fact is she was being treated conservatively. Accordingly, in addition to the amount allowed by the trial judge for medical expenses an amount of $11,735.00 should be allowed for the surgical treatment. If the appellant has paid these out of pocket expenses, interest is also payable on these expenses. It follows that the appeal should be allowed with costs. The respondent should have a certificate under the Suitors Fund Act 1951 (NSW), if so entitled. The parties should bring in short minutes of order to accord with these reasons for judgment. 1. Appeal allowed with costs. 2. The respondent to have a certificate under the Suitors Fund Act 1951 (NSW), if so entitled. 3. The parties to bring in short minutes of order to accord with these reasons for judgment. URJ UNDERHILL v SHERWELL (Beazley JA) Counsel for the appellant: R J Colquhoun Solicitors for the appellant: Lyons & Lyons Counsel for the respondent: M D Farrar Solicitors for the respondent: Farrugia & Co