Caddajin Pty Ltd & Ors v Tasevski [2003] VSCA 19

5. There were a number of issues joined at trial between the parties, both in respect of liability and quantum. As a consequence the trial had proceeded for some two weeks. By their verdict the jury found that the injuries suffered by the respondent did not arise out of or in the course of her employment as had been alleged by the appellants[1]. They also concluded that the appellants were negligent and that such negligence was a cause of the respondent's injuries and loss; but that there was contributory negligence on the part of the respondent which was assessed at 20%. Total damages were assessed at $232,905 and after allowing for contributory negligence and adding interest on damages, his Honour entered judgment in favour of the respondent in the sum of $190,324.00.

8. The jury's verdict in respect of the issues going to liability is not in contest in this appeal. The appeal relates solely to the verdict in relation to the assessment of damages. It is submitted on behalf of the appellants that the jury's assessment of damages in the sum of $232,905 is unreasonable in the sense that it is unsupported by the evidence, and it is further contended that the unreasonableness of the verdict has been produced or contributed to by errors of the trial judge in permitting respondent's counsel to advance a case in respect of past loss of earnings and future loss of earning capacity which was neither pleaded nor particularized, and was unsupported by evidence; and in failing to adequately direct the jury as to the manner in which they should assess the respondent's claim for future loss of earning capacity. Before these matters can be addressed, it is necessary to refer to the way in which the respondent's claim was made, and the evidence led in support of it.

12. The respondent was a young woman, aged 27 years at the time of the accident and 30 years at the time of trial. At all material times she had been gainfully employed as a freelance agent in production and direction of film making. Furthermore, she was at the time of trial the mother of a young child which had been born following the receipt of her injury and was expecting her second child in April 2001. It was not in dispute that she was devoted to, and good at, the employment which she performed and that she earnestly desired to continue in her chosen field of occupation notwithstanding her family responsibilities. In this respect it was accepted that she was "courageous" in the pursuit of her career despite the disabilities with which she had been confronted.

15. She suffered her injuries in August 1997 when she fell heavily after misjudging a poorly lit step at the appellants' hotel which divided two floor levels at those premises. The consequence was a severe injury to her right knee which had buckled beneath her. There was a rupture of the right anterior cruciate ligament, the tearing of the medial ligament in the same knee and associated damage to the articular surfaces of the knee joint. This was initially treated by placing the knee joint in a splint; but, following arthroscopy, she required a right knee reconstruction at the Austin hospital in late 1997. At the time when she was injured, she was retained as an assistant director in the production unit of December Films Pty. Ltd. which was engaged in making a film in North Melbourne. On the day when the accident occurred she had been to the appellants' Castle Hotel for a drink with a number of the film crew after work had finished for the week. She returned to her work in late January 1998 after her knee reconstruction, but whilst her knee was still in a splint, and upon crutches. She said that she "coped with her work" - but imperfectly - during 1998 and had ceased towards the end of that year pending the birth of her first child in February 1999. She was "off work" during 1999 in the course of which her knee "got worse". She returned to the Austin Hospital for an MRI scan which revealed the early onset of osteo-arthritis in the knee joint. At the time she was under the care of Mr. Ritchie, an experienced orthopaedic surgeon. She returned to her work in the middle of 2000, but again ceased in December 2000 when she was expecting her second child. That second child was due to be born shortly after the trial which took place in March 2001.

18. The respondent said that, whilst working for December Films, she was earning a little over $1,000 per week gross, which amounted to $740 per week after tax; her employer was also contributing approximately $50 per week for superannuation. This, she said, was about "the average" pay for the type of work which she did in the industry. She said that, if she had been "able bodied" in the 20 week period between the date when the injury occurred and the date when she first returned to work in late January 1998, she would have worked "most of those weeks" and certainly "at least 12 of them". She also said that her disability reduced her capacity to earn by "about 60%". She was simply unable to do all of the physical work which her employment demanded. In respect of the respondent's present condition, her husband said that she was getting "aches" in the knee regularly, that it was "clicking" and "getting worse". It was not in contest that the job which the respondent did required mobility and agility and a capacity to work outdoors in all types of terrain. Nor, as I have said, was it in contest that she was good at, and committed to, her work, and wished to make it her life's endeavour, notwithstanding her family and other commitments.

21. The plaintiff said that she was unable to do many of the things which she used to be able to do; such as bush-walking and yoga. She also said that she could not squat, kneel or even cross her legs. It appeared that, as at the date of trial, it was particularly lack of confidence and fear of recurrence which was holding her back.

24. Mr. Ritchie, the respondent's specialist orthopaedic surgeon, described the damage to the right knee. He said that it was apparent from the MRI scans in late 1999 that the respondent had developed early degenerative changes in the knee joint as a consequence of damage to the articular surfaces of the adjoining femur and tibia bones. In his view the plaintiff would suffer from osteo-arthritic changes in the knee which would deteriorate over a period of time - "a continuing destructive process of the joint surfaces". The process he described as the gradual wearing away of the cartilaginous material in the joint spaces until the bones "bear on one another", causing pain and lack of flexion in the leg. Using somewhat colourful terminology he said that ultimately, the joint will be "wrecked ... buggered". In his view the respondent would come to that position by the time she reached 45 or 50 years and the chances of her requiring by then a "total replacement" of the knee joint were "moderately high". He said that such medical assistance would - in today's terms - cost about $30,000. (It was agreed that the present value, at discounted rate, for the cost of such an operation in 20 years time was $16,251; in 30 years time $11,653.)

27. Mr. Davie, an orthopaedic surgeon called by the appellants, was far more optimistic about the chances of the respondent. He expressed the view that arthritis was a fairly common sequel to an injury of this kind but only a small percentage deteriorated to the point where they needed total joint replacement. There was a further orthopaedic surgeon, Mr. Elsner, who had examined the respondent on behalf of the appellants. He was not called as a witness and much was made of this circumstance by the respondent's counsel[2].

30. It was in the face of this evidence, which I have briefly described, that counsel for the respondent submitted to the jury that the injury and disability which they were called upon to compensate was, for a young woman with a lifetime of physical exertion ahead of her, a very serious injury indeed. In making his submissions counsel put figures before the jury having previously informed his opponent that he was intending to do so, as was his obligation having regard to the fact that the appellants' counsel was to address the jury first[3]. Counsel introduced the topic of compensation for "general damages" in the following terms:

"You know she's had a knee reconstruction ... and you know about the present condition of her leg. You know the difficulty she has had. They are significant ... . And her present condition indicates that she - and it is common ground - has certain restrictions at the moment of a moderate nature; she has pain, she has difficulty on activity and there are certain things she cannot do; rough terrain is an example, yoga, various other things. And we say, for a 30 year old woman they are significant matters, but unfortunately for [the respondent] the worse to come is in the future ... . It is our case that the plaintiff's knee will slowly deteriorate to the extent where, at 50 plus, she will require a total knee replacement. That implies she will get to the stage where she can't put up with it any longer."

Counsel referred to the conflict of evidence between Messrs. Ritchie and Davie, and urged the jury to prefer the evidence of the former. Counsel, in this respect, called in aid the failure by the appellants to call Mr. Elsner, the other orthopaedic surgeon whom they had secured to examine the respondent. Counsel then suggested to the jury that he would put what he described as "a moderate figure in all the circumstances" of $120,000 as appropriate compensation for the non-economic component of the respondent's claim. Counsel said:

"Now I stress, members of the jury, that this issue of general damages - this is pain and suffering for the past, present and future, underline `future', you might think is too little. Of course if you think it is too much, cut it down, but if you think it is too little, you are perfectly entitled to add more."

36. Counsel then went on to make submissions to the jury about "economic loss". He referred to the agreed "out of pocket expenses of $654" and said that there were also "amounts for her past loss of earnings". In this latter respect, he put it to the jury that, at the time of the accident, the respondent was "clearing $740 at December Films and they were paying $48 superannuation". He referred to other evidence which indicated, so counsel submitted, that the respondent was "clearly losing something in excess of $700 [nett] per week ..., that would be a modest loss". This loss, counsel submitted, was incurred over - "at the very least" - some 12 weeks; amounting to "something like eight or nine or ten thousand [dollars]". This amount was put as the loss to the respondent for the period between the date of the accident and her return to work in late January 1998.

39. Counsel then turned to the question of the respondent's loss between January 1998 and the date of trial in March 2001. He referred to her evidence that she was not able to do things which she should have been able to do and that her income had "dropped 60 per cent". It would be "fair", so her trial counsel put to the jury, that "together with the eight, nine or ten thousand [dollars], or whatever, you could perhaps give her another five, six, seven - take her up to $15,000 for those two items".

42. Counsel next turned his attention to compensation for future medical expenses; that is the discounted cost of "knee joint replacement" which had been the subject of evidence from the orthopaedic surgeons, Messrs. Ritchie and Davie. This was the prospective expense (present cost $30,000) in respect of which actuarial figures had been provided depending upon whether such an operation was to be carried out in either 20 years or 30 years time (respectively $16,251 and $11,653).

45. The final aspect of compensation which the respondent's trial counsel put to the jury related to future loss of earning capacity - a matter to which he referred as "the most difficult issue in this case". Counsel submitted that the evidence should lead the jury to conclude that the respondent was a young woman committed to work that she loved but that it was inevitable, at some time in the future, that her injury was going to progressively impact upon her capacity to perform her work and, thus, to earn the income that otherwise she would. In substance, it was put to the jury that although no one could, with precision, say when and to what extent the respondent's progressively depreciating knee would impact upon her capacity to earn income, that did not mean that the jury could "ignore it ... and say ...therefore you've lost nothing". Counsel suggested to the jury that they should adopt "a broad brush approach" and further suggested that an award of "something in the order of $100,000 would be appropriate", but that "it is a matter of what you think is fair".

48. Trial counsel for the appellants (who also appears for them in this Court) immediately complained to the trial judge that he had been taken by surprise in respect of the figure of $100,000 put by the respondent's counsel in respect of loss of future earning capacity. He contended that it was "something that comes right out of the blue and ... it is not supported by any worthwhile evidence ... nor has it been put to the jury in the manner required". Counsel submitted that the contention on behalf of the respondent that the jury should award $100,000 for loss of future earning capacity was "a grievous error", "requires correction" and "is totally at odds with the way that damages should be assessed - carefully and by reference to rational principle and actuarial tables". Further discussion ensued between the judge and counsel in the course of which the respondent's counsel disputed the submissions made on behalf of the appellants, and submitted that his claim for future loss of earning capacity was appropriately made in accordance with the principles explained by the High Court in Malec v. J.C. Hutton Pty. Ltd.[4]. A short adjournment followed to give the judge an opportunity to re-visit the authority referred to. When the court resumed, his Honour said that he had briefly read the judgments in Malec's case, and that they appeared to support the contention being made by respondent's counsel. Because, however, the trial had been proceeding for nearly two weeks, the judge suggested that he should commence his charge to the jury on the issues going to liability before entertaining further submissions on matters relating to quantum. Counsel agreed, and his Honour directed the jury on the "liability issues" between the parties. Although the jury's resolution of these issues is not in contest in this appeal, it is appropriate to note that they consumed a very significant part of this trial.

51. On the following morning, counsel for the appellants continued to debate the propriety of the conduct of the respondent's case. Whilst accepting that the "nub of his complaint" was that he had not been given a fair opportunity to meet the case "on future loss of earning capacity", counsel further submitted that respondent's trial counsel should not have put to the jury the figures, which he did, suggesting that they could award damages of "$5,000 to $7,000" in respect of past income loss between the date of return to work in January 1998 and the date of trial in 2001. Such a loss, he contended, was beyond that which had been pleaded and particularized. In fact, the "Particulars of Damage and Loss of Earnings" which had been supplied by the respondent's legal advisers prior to trial included the following:

"Past Loss of Earnings At the time of the accident the plaintiff was employed as an assistant film director with December Films Pty. Ltd. working on a children's television series. She was unable to complete the series and was unavailable for further employment for a period of 12 weeks. At the time of the accident the Plaintiff was earning $1,000 per week. Accordingly the Plaintiff makes a claim for past loss of earnings totalling $12,000. Plaintiff's Loss of Future Earning Capacity The Plaintiff was born on the 18th April 1970 and is presently aged 29. As a result of the injuries the Plaintiff has found her ability to continue as a film director's assistant extremely difficult. The types of film projects she can undertake is also limited by reason of her injuries. It is likely that as a result of her injuries, her future employment opportunities will be narrowed, she will require further periods off work and may be forced to cease her employment altogether. Should this occur the Plaintiff will suffer significant ongoing loss of earnings. Save as aforesaid the Plaintiff is unable to quantify such loss further."

Counsel submitted that neither these particulars, nor the evidence, signalled to him that a claim was being made for past earning loss beyond the "12 weeks" off work between the date of the accident and 28 January 1998 when the respondent returned to work. It was then submitted that, if his Honour concluded that the trial had proceeded upon an inappropriate basis, there were "a range of possibilities" including permission to counsel to "make an address in response" or for the judge to "take appropriate measures to correct the errors". Counsel disclaimed any intention of moving for a discharge of the jury.

56. Having considered the matter over the week-end, his Honour ruled that, in respect of the issue of past economic loss, he proposed to leave the matter to the jury on the basis that there was some evidence that would support the claim for loss between 28 January 1998 and the date of trial. He further ruled that it had been appropriate for the respondent's trial counsel to put figures in respect of loss of future earning capacity, a matter which in his Honour's view had been clearly opened and sufficiently supported by evidence to warrant the jury making an assessment of the loss. Thereafter his Honour continued his directions to the jury in respect of the issues relating to damages; and, in addition to the amounts claimed for past loss of earnings in the 20 week period immediately following the accident, left to the jury the "modest" claim for $5,000 to $7,000 for the period of the ensuing three years. He referred to the evidence upon which this sum was claimed and said of that evidence that "it was not specific", but nevertheless was a matter for the jury to assess, taking into account the fact that, in respect of a substantial portion of the period, the respondent's pregnancies and maternal responsibilities would have prevented her, in any event, from resuming employment. Having then dealt with the issue of general, or non-economic, damages (of which no complaint is now made), his Honour left to the jury the issue of future loss of earning capacity, as well as the question of compensation for the prospect of the knee joint replacement operation. Again, neither the directions upon, nor the assessment of, this last mentioned item of loss are now in contention. In respect of the loss of earning capacity, his Honour left that to the jury, not as a matter of present and accruing calculable loss, but as a chance or risk which may, on the evidence, accrue to the respondent at some unspecified time in the future. In the context of discussing the relevant evidence of the respondent and the doctors, his Honour said:

"It often happens in a case where the plaintiff suffers an injury that the plaintiff is able to say to a jury, `well, I'm losing $100 per week because of my injury, for example, I can only work three days a week and not five, and that is going to happen for the next 10, 15, 20 years', and by the use of actuarial tables you can calculate what the future economic loss is going to be. This is not one of those cases. What the plaintiff's case, in substance, is there is this uncertainty, there is this risk that some time down the track I will need to have a knee replacement operation. The plaintiff says if that happens, and it is for you to assess the risk of it, but if that happens she may be forced to cease her employment altogether, or at the very least, for a period of time. It is a matter for you to assess what that risk is, and having assessed the risk, to determine what a reasonable sum is in money terms for that risk."

Initially his Honour's directions appeared to link the chance of loss to the prospect of the "knee replacement" operation although, in re-direction, the jury were told that they would need to consider the evidence (if accepted) relating to the future and progressive degeneration of the knee joint when determining whether there was a compensable risk of loss of future earning capacity. His Honour thus concluded:

"So you have to make allowance in your considerations for what impact the condition of her knee in its current state or, if you find it, aggravated in the future, what effect that injury would have on the plaintiff's ability to earn income, and you would have to assess what the risk was, and how big it was. And then, doing the best that you can on all the evidence put a dollar figure on that aspect of the ... claim."

63. I have recited at some length the evidence, submissions and events which occurred at trial in relation to the issues of the respondent's "economic loss" and the judge's rulings and directions on "quantum" because they are at the heart of this appeal. Indeed the submissions made by counsel for the appellants are, substantially, a repeat of those made below. Although grounds 1 and 2 of the Notice of Appeal assert, in different ways, that the jury's verdict was unreasonable, counsel told us at the outset of his argument that he would "defer" any contention upon those grounds pending submissions made in respect of the other grounds. In the long run no oral submissions were advanced by counsel to the effect that the jury's verdict was unreasonable. Indeed, when one has regard to the view of the evidence most favourable to the respondent[5], it would, in my opinion, be very difficult to contend that the award of some $230,000 in favour of the respondent was so excessive that no reasonable jury could have made it[6]. Although counsel did not withdraw paragraph 11 of his written submissions that "both in relation to the components of pain and suffering and of loss of earning capacity, the verdict of the jury was manifestly excessive", it is a submission that I am not prepared to accept. Taken at its highest from the respondent's point of view, the evidence portrayed the respondent as a young woman who had suffered a significant injury to her right leg which, with the passage of time, would become increasingly painful and lacking in movement; prospects which - in turn - would in all probability impact not only upon her general enjoyment of life but upon a job to which she was much committed and which she desired very much to be part of. Although this Court does not know with precision how the jury's award was arrived at, or what its components are, I am far from persuaded that it is "manifestly excessive" in the sense that I have described. Indeed counsel for the appellants did not contend to his Honour, or to this Court, that the figure of $120,000 which the respondent's trial counsel had put to the jury for general damages was not a figure which could responsibly have been awarded; nor am I persuaded that the figure of $100,000 for the risk of loss of future earning capacity - if that was awarded by the jury - is a sum which, on the evidence, was beyond the range available.

66. Grounds 3 and 4 of the appellant's notice of appeal, in essence, assert that the trial judge was in error in failing to pay heed to the submissions made to him about the figures put to the jury on the respondent's behalf in respect of past loss of earnings and loss of future earning capacity. Ground 3 asserts no fewer than eight sub-paragraphs, of which sub-paragraphs (a), (b), (c) and (f) (along with ground 4) allege errors in respect of the former topic, and sub-paragraphs (d), (e), (g) and (h) allege errors in respect of the latter. As counsel conceded there was a "degree of overlap and interplay" in and between the grounds; and he argued them in this Court compendiously. Although many of the grounds assert that the learned judge was in error "in permitting or allowing the respondent to advance a case for" past loss of earnings beyond those particularized and a case for loss of future earning capacity, the thrust of the argument before this Court was that his Honour was in error in failing to withdraw these items of loss from the jury's consideration either for the want of proper notice or for the want of sufficient evidence. Alternatively it was contended that, if there was evidence to support the claims, his Honour's directions in respect of them were deficient.

71. Whilst the appellants' counsel acknowledged that the claim made for past loss of earnings between return to work on 28 January 1998 and date of trial was modest (between $5,000 and $7,000), he nevertheless submitted that the advancement of the claim was made without notice and without forewarning by particulars, and created particular mischief because it provided to the jury an unsubstantiated, but attractive, foothold for the assessment of loss of future earning capacity. Furthermore it was submitted that there was no evidence to support the claim.

74. Similar submissions were made to the trial judge, who rejected them. In my opinion, he was correct to do so. It is true that the particulars of past loss of earnings provided in accordance with Rule 13.10 of the County Court Rules were probably insufficient to alert the appellants to the existence of a claim for past loss of earnings beyond the respondent's return to work on 28 January. However, the respondent's counsel, in opening the case to the jury, had referred to a claim for "opportunities missed" in the period between January 1998 and trial; and there was substantial evidence given by the respondent that after she had returned to work on 28 January 1998 there were occasions when, because of the pain and lack of movement in the leg, she was unable to take on work otherwise available to her, although she could not estimate how much work or income she had lost as a consequence. Even after she had the first of her children, she said that she had been keen to return to the workforce by mid 2000 but she was unable to do "outdoor work". She put a figure of "about 60%" on the number of work offers she was forced to reject. This evidence, as his Honour ruled, made it abundantly clear that some modest claim for past loss of income following return to work on 28 January, arising from lost opportunities, was being made. As his Honour said in the course of his ruling, the evidence was led without objection and, although not specific, it was evidence upon which the jury was entitled to act notwithstanding that, on one view of the particulars furnished, the evidence was going beyond them. I agree with his Honour's conclusion. As the High Court said in Dare v. Pulham[7]:

"But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and the particulars earlier furnished will not disentitle a party to a verdict based on the evidence."

"In the event that evidence, admitted without objection, tends to establish a claim for damages higher than the claim made in the particulars, the defendant is placed in no stronger position to avoid an assessment based on that evidence than he would be if a verdict was returned on facts not alleged in particulars but admitted without objection at the trial to establish the cause of action pleaded."

80. Of course, we are not in a position to know whether the jury allowed in their verdict anything for the past loss of earnings claimed by the respondent beyond that particularized. But if they did, they were in my view entitled to do so because there was evidence upon which such an award could properly be made. I cannot accept that the evidence to which I have already adverted was incapable of constituting notice to the appellants' counsel of the basis of the claim being made; but even if counsel was not alerted, it cannot prevent the jury from acting on the evidence before them. As I have previously noted, counsel's objections to this aspect of the respondent's case came somewhat belatedly, and after objection had been taken to the figures mentioned by the respondent's counsel for future loss of earning capacity. Even when the matter was raised, counsel conceded that the issue was "not the nub" of his complaint. Although, at the end of the day, he suggested that he should be entitled to a "right of reply" to the address of the respondent's counsel, it does not appear to me that the request comprehended a reply in respect of this issue. In any event the judge could not, sensibly, have extended such a right because, at that stage, he was in the course of his charge to the jury.

83. In the course of his submissions appellants' counsel contended that because, without warning, the respondent's counsel had departed from the "particulars of past loss of earnings", it was incumbent on the trial judge to give "relevant directions to guide the jury". As I apprehend it, the submission was that - because the evidence upon which the respondent relied to support her claim could not establish a basis for quantifying such an additional loss of earnings - the judge should have told the jury so, and thus withdrawn the issue from them. However, for the reasons I have already given, I do not accept the basic premise upon which the submission is founded. In my view, there was evidence upon which the jury was entitled to find that the respondent had suffered at least the "modest past loss" which she claimed. The judge told them what that evidence was and reminded them of its non-specific nature. I can discern no error in his directions in respect of the issue and I would reject, accordingly, grounds 3 (a), (b), (c) and (f) and ground 4.

87. Counsel for the appellants next submitted that the trial judge was in error in leaving to the jury the respondent's claim for loss of earning capacity. It was counsel's contention that the evidence before the jury was incapable of supporting the claim made because there was no reliable basis upon which the jury could determine when and to what extent the respondent's degenerating condition would restrict and/or disable her from employment; or the time at which her employment would be completely interrupted by a joint replacement. The submission proceeded on the basis that evidence in relation to these matters was required because otherwise no reliable actuarial guide, encompassing discounts for present payment, could be provided to ensure that the jury could make an appropriate assessment of the loss. Further, it was contended by counsel that these deficiencies in evidence were compounded by the error in leaving the past loss of earnings to the jury because that had provided an unreliable "springboard" to tempt the jury into assessing future loss of earning capacity from a date proximate to the trial. It was further submitted that when counsel for the respondent had put the figure of $120,000 for "general damages", there was nothing to indicate that it did not comprehend "future economic loss" as well as damages for the non-economic component of the claim; and that because of the "surprise" occasioned by counsel's "departure from particulars" and the need for reliable actuarial guidance to assess future loss, the judge should have acceded to appellants' counsel's request for "a right of reply" and further "re-direction".

90. For my own part, I am unable to accept these submissions. In the first place there can be no sensible basis for suggesting that appellants' counsel could have been justifiably surprised when counsel for the respondent made a claim for loss of future earning capacity. The particulars of such a claim, to which I have referred in paragraph [16], and the content of the opening address of respondent's counsel, each provided ample notice to the appellants that it would be made, as does the evidence, medical and otherwise, upon which the respondent relied to support it. Furthermore, it can scarcely be suggested that the claim was "masked" in some way by the claim for "general damages" when that claim, in its form and substance, was made solely for the non-economic components of the damages sought (see paragraph [10] of these reasons). Nor, in my view, can it be validly suggested that the claim for loss of future earning capacity was likely to be wrongly "inflated" because of the claim for past loss of earnings until trial. The two claims were entirely discrete; the claim for future loss being put solely on the basis that, because of progressive degeneration, the respondent was at risk - at some undefined time in the future - of having to cease work altogether or, at least, to "scale back" her work activities. On the other hand, the past loss of earnings was put on the basis that she had lost job opportunities in the recovery phase of knee reconstruction when her confidence was low. There was, so far as I can see, nothing in the evidence, or in the way in which it was put to the jury by counsel, which was likely to mislead the jury into believing that the claim for loss of future earning capacity was to be measured from the date of trial. Certainly, nothing which the judge told the jury could have led them to that view; rather to the contrary because - at least in the first instance - his directions were calculated to direct the jury's attention to a commencement of loss at or about the time when, as the evidence suggested, she might have to undergo a joint replacement.

93. The emphasis of the appellants' submissions to this Court was upon the absence of evidence of the time span during which the progressive degeneration of the injured knee would restrict, and/or disable, the respondent from working. As I understand the submission, it was that unless there is some evidence reliably demonstrating a pattern of future earning loss, upon which actuarial tables (incorporating discounts) can focus, there can be no basis for an award of damages for loss of future earning capacity; and no basis for respondent's trial counsel to put a figure of $100,000 to the jury.

96. Similar submissions were made to, and rejected by, the judge. I, too, am not prepared to accept them. In claims for damages for personal injuries, there will frequently be cases where the nature of the injury is such that, whilst there can be some degree of certainty that it will, or might well, impact upon its victim's future life-style, it cannot be predicted with any accuracy just when that impact will occur; or to what extent, at any given point in the future, a progressive degeneration of the injury will impact on the victim's capacity to work. The law does not say that the absence of precision as to time and extent of impact precludes an award of compensation for the chance or risk of future loss; nor does it say, as I understand it, that just compensation should be denied simply because the assessment of the risk or chance cannot be actuarially calculated. There will, of course, be cases where, due to the nature of the injury and its consequences (known at trial), actuarial figures may be a helpful and reliable guide; for example where the injury itself has destroyed any useful prospects of employment in a person whose life span remains unaffected. But where, as here, the evidence, taken at its highest from the respondent's point of view, renders it likely that her injury will lead to progressive degeneration which will or may, at times and to extents unable to be calculated with precision, impede or destroy her working future, actuarial guides will be more likely to confuse than assist. As to matters which remain uncertain, the evaluation of the loss can only be made on the basis of chance, and what has to be assessed is the degree of the chance or risk of loss which will depend on the circumstances of the case[8]. As Deane, Gaudron and McHugh, JJ. said in Malec v. J.C. Hutton Pty. Ltd.[9]:

"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 that chance into account in assessing damages. ... Thus, the court assesses the degree of probability that an event ... might occur, and adjusts its award of damages to reflect the degree of probability."

In the same case, Brennan and Dawson, JJ. (at 640) expressed agreement with the general thrust of the reasoning to which I have just referred, but expressed the view that it was "undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage". As they said (again at 640):

"Damages founded on hypothetical evaluations defy precise calculation."[10]

102. It would be wrong to think that juries are unaccustomed to, or incapable of, assessing risks of future loss of earning capacity unassisted by actuarial tables. In my own experience, they have done so - with appropriate assistance from judges - with what has been acclaimed as remarkable accuracy. At one stage it was thought that use of actuarial tables, even in circumstances where loss of capacity was certain, was more likely to be a hindrance than a help to the jury. As Barwick, C.J. said in Arthur Robinson (Grafton) Pty. Ltd. v. Carter[11]:

"The assessment of the global sum of compensation is a matter of judgment, bearing in mind all the facts and circumstances. Whether this assessment be made by jury or judge alone it is not, in my opinion, a matter of mathematical calculation. The use of the present value of future regular payments, in my view, is more likely to divert the mind from the elements which should go to affect the judgment of the proper sum than to assist the assessment of the fair compensation to be paid."

I do not, of course, intend to imply that, in assessing the value of a chance or risk of future loss, actuarial tables will never be of use to a jury. Much will depend upon the state of the evidence and the precision with which the degree of risk can be ascertained. As Eames, J. noted in Woodhead & Anor. v. Barrow[12]:

"The jury were entitled to make use of the actuarial tables to assist them in reaching their conclusion as to quantum, and in my opinion nothing said in ... Malec v. J.C.Hutton Pty. Ltd. ... would deny that that was an appropriate approach to adopt, given the view of the facts which it was reasonably open for the jury to take in this case. ... The use of actuarial tables was not rejected by the majority in that case; at issue was the assessment of the chance of an event occurring, namely the reduction or loss of earning capacity. So long as the jury were mindful that they were assessing the probability of an event occurring rather than being required to assume that it was a certainty that the event would occur, and adjusted any figures which the calculation achieved when use was made of the tables so as to reflect that they were not dealing with a certainty, then they would be entitled to adopt the approach which it was suggested they adopt."

However, it is apparent that his Honour's comments were strictly related to the facts, and the evidence, of the case before him. They were not an endorsement of the view, which is implicit in the argument of the appellants' counsel in this appeal , that in no case should a plaintiff be permitted to claim damages for the risk or chance of lost earning capacity in the future without reference to the need to discount the appropriate multiplicand by a multiplier based upon the 3% discount tables. Where, as here, the evidence was not able, as I have said, to identify a time at which or the extent to which the increasing physical incapacity would impact upon the respondent's capacity to work, there was no basis upon which any sum could be identified as a multiplicand. In this sense, the evidence was in contrast to that given in respect of the cost of future operative treatment. But, as the authorities indicate, that is no reason why an award should not be made for a loss which has been appropriately proved.

109. Finally, counsel submitted that his Honour's directions in respect of future loss of earning capacity were deficient, particularly in the context of the figure of $100,000 which had been put before them by the respondent's trial counsel. Once again, I am not satisfied that this submission is made out. I think it should be said at the outset that it is not uncommon in this State for counsel to seek to give guidance to juries in respect of future loss by putting suggested figures to them. In doing so, counsel assume the responsibility of putting figures which are capable of being supported by the evidence. If they do not, they run the obvious risk that an award of damages based on such figures will be set aside. As I have already said, I do not regard the figure of $100,000 as unsupported by the evidence given in this trial; and I did not understand that appellants' counsel in this Court was contending otherwise because he did not, in the end, contend that the verdict was unreasonable. Counsel continued to submit that he was "taken by surprise" and that the trial judge was in error in not offering to him a "right of reply". For reasons I have already given, I do not agree that his Honour was in error in refusing such request having regard to the advanced stage of the proceedings at which it was made. Furthermore, I am of the view that the directions which his Honour gave to the jury in respect of this aspect of the respondent's claim were both adequate and correct. It was submitted that they did not properly correspond to the reasons of the majority in Malec v. J.C. Hutton Pty. Ltd. (supra) in that they did not adequately bring home to the jury that they should assess and compensate for the risk of future loss in accordance with what they found to be the degree of probability of the risk occurring. Once again, it was submitted that the jury were not in a position to do that without the assistance of actuarial figures. It follows from what I have already said that I do not accept the latter submission.

112. With regard to the asserted inadequacy of the judge's directions, the submissions appeared to be premised upon an assumption that, in directing the jury as to the manner in which they should assess a risk of future loss, the judge was required to use terms which replicated, or at least closely followed, the words used by the majority judges in Malec's case; namely that they should assess the risk of such loss by reference to percentage probabilities. Again, I cannot accept those submissions. As I read it, the judgment of the majority judges in Malec's case was not intended to fashion a formula in accordance with which trial judges should slavishly direct juries called upon to make an assessment, in money terms. of the risks or chances of future loss of earning capacity. Rather, their Honours were concerned to identify the principles in accordance with which such risks or chances fell to be proved before becoming compensable. That no doubt is why their Honours referred, with approval, to the exposition of the principles by Lord Diplock in Mallett's case (supra at 176), in which his Lordship spoke in terms of making "estimates" of the chances or risks, and also the exposition of the same principles by Moffitt, P. and Samuels, J.A. in McIntosh v. Williams (supra at 550-1) in which their Honours referred to the evaluation by the court of "the degree" of chance or risk. In any event, it seems to me that the directions given by his Honour both as to the assessment of and compensation for the risk of the knee operation and the assessment of the risk of future loss of earning capacity were sufficient to direct the jury's attention to the appropriate principles to be applied in making their assessment. Thus he told the jury that they only had before them the discounted cost of an operation occurring in 20 and 30 years time and such an award could only be made if they were satisfied that it would happen within those times; but that if not so satisfied they would need to adjust the figures according to the degree of probability that it would or might occur. Likewise, in respect of the assessment of the risk of loss of future earning capacity, his Honour reminded the jury of the evidence, both lay and medical, in respect of the respondent's future prospects, of the risks which she faced in respect of work incapacity, of the inability to determine with precision if, when and how the injury and disability would or might encroach on her employability and that it was for the jury to assess the degree of that risk and "having assessed the risk, to determine what reasonable sum in money terms" should be awarded for the risk. He gave those directions on more than one occasion; he directed the jury that the fact that appellants' counsel had not suggested "a figure" was not to be taken as his acceptance of the figure put by

respondent's counsel and did so in the context of a direction that if they accepted Mr. Davie's view of the respondent's prospects, clearly that would affect their view of this item of loss. He reminded the jury that it was necessary in respect of any such assessment that they must bear in mind the vicissitudes of life, which must necessarily be brought into account in depreciation of any sum awarded. It seems to me that to seek to draw a distinction - as the appellant's counsel's submissions do - between directing the jury to assess a risk of future loss in terms of percentage probability of the risk occurring, and directing them to assess such risk by reference to degrees of probability or likelihood is to descend into the realm of semantics.

116. It follows from these reasons that I am of the view that ground 3, sub-paragraphs (d), (e), (g) and (h), have not been made out. I would, accordingly, dismiss the appeal.

[1] At the trial the appellants (defendants) had alleged that the injuries had arisen out of or in the course of the respondent's employment. Proof of such allegation would have put the respondent "out of court" (Accident Compensation Act 1985, ss.135, 135A).

[2] cf. Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298.

[3] Marsh v. Suleyman [1983] VicRp 44; [1983] 1 V.R. 483 (F.C.).

[4] [1990] HCA 20; (1990) 169 C.L.R. 638.

[5] cf. Australian Iron & Steel Ltd. v. Greenwood [1962] HCA 42; (1962) 107 C.L.R. 308 at 311.

[6] cf. Precision Plastics Pty. Ltd. v. Demir [1975] HCA 27; (1975) 132 C.L.R. 362 at 369, per Gibbs, J.

[7] [1982] HCA 70; (1982) 148 C.L.R. 658 at 664.

[8] cf. McIntosh v. Williams [1979] 2 N.S.W.L.R. 543 at 551.

[9] [1990] HCA 20; (1990) 169 C.L.R. 638 at 642.

[10] See also Mallett v. McMonagle [1970] A.C. 166 at 176 per Lord Diplock.

[11] [1968] HCA 9; (1968) 122 C.L.R. 649 at 660.

[12] (1993) Aust.Tort Reports 81-238 at 62,469.