Vicissitudes (ground 3)
70 The appellant complains that the primary judge erred in allowing only 25% for vicissitudes in assessing damages for future economic loss.
71 The respondent objected to the appellant raising this ground of appeal on the basis that the appellant had addressed no submissions to the primary judge as to the discount for vicissitudes which should be applied. In such circumstances, the respondent submitted, the appellant must be taken to have been content at the trial for the "usual" discount of 15% to apply.
72 The appellant did not dispute the proposition that 15% is the conventional starting point for an allowance for vicissitudes: see Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 per Beazley JA (with whom Spigelman CJ, Powell JA and Stein JA agreed); State of New South Wales v Moss [2000] NSWCA 133 at [32]; (2000) 54 NSWLR 536 at 544 [32] per Mason P (with whom Handley JA agreed), see also Heydon JA at [100].
73 Mr Neil SC pointed out that before the primary judge the respondent's written submissions on damages included a table setting out the calculations the respondent contended the primary judge should adopt on heads of economic loss. The calculation concerning his probable earnings had he not been injured was based on the 3% tables on the basis of 10% residual earning capacity - the percentage for which the respondent contended. The calculation provided for that sum to be reduced by 15% for vicissitudes. In contrast, the appellant's written submissions to the trial judge had not addressed the allowance for vicissitudes at all.
74 Despite the respondent's submissions allowing the "usual" 15% deduction for contingencies, the primary judge departed from that figure, increasing it to 25%. His judgment does not explain why he took that course. The respondent does not complain about the 25% figure even though the consequence is that, in effect, the percentage allowed for his residual earning capacity was increased from 30% to 40% (i.e. by the "extra" 10% deducted for vicissitudes).
75 The Court permitted Mr Sullivan QC to address on the issue of the deduction for vicissitudes, but reserved its opinion on whether it would permit this ground of appeal to be pursued.
76 Mr Sullivan QC argued that this was "the simple case where a submission was overlooked" and that the fact that no submission was put at trial about vicissitudes did not preclude the appellant agitating the matter on appeal. He submitted that it was a fundamental obligation of the primary judge in assessing damages "assisted or unassisted by counsel to reach a correct conclusion as to vicissitudes". He next contended that it was incumbent upon the primary judge to determine the amount to allow for vicissitudes in accordance with established principles and also to express a reasoning process so that this Court could satisfy itself that his discretion had been properly exercised. No ground of appeal complained that the primary judge's reasons on the issue of vicissitudes were wanting.
77 Mr Sullivan QC submitted that the respondent would not suffer prejudice if the appellant was allowed to pursue this ground of appeal. He submitted that the appellant's failure to address the matter at trial should not be a bar to the matter being agitated on appeal. He submitted that to not permit the matter to be agitated on appeal would be contrary to the High Court's decisions in Coulton v Holcombe and Metwally v University of Wollongong (No 2).
78 Mr Sullivan QC acknowledged, however, that even if the appellant was permitted to argue this ground of appeal, he faced the hurdle that the percentage allocated to vicissitudes involved a discretionary decision and was, therefore, subject to the principles of review of such decisions.
79 Mr Neil SC submitted that the respondent would be prejudiced if the appellant was permitted to argue this ground. He argued that if the appellant had included in its written submissions a contention that the primary judge ought to have allowed 35% to 40% by way of vicissitudes on the bases submitted in this Court, then the respondent would have had to consider whether to call any further evidence to seek to meet the arguments the appellant advanced. Mr Neil SC could not identify the further evidence which might have been called, saying that it was now a matter of speculation. He also said that if the issue had been raised at trial, he might have accepted the primary judge's invitation to make oral submissions. Mr Sullivan QC did not challenge the respondent's submission that if the point had been raised below, the course of the trial may have been different.
80 In Sullivan v Gordon, above (at [89]), having referred to the fact that "[it] is accepted that the 'usual deduction' for contingencies is 15%, a percentage accepted by the High Court as 'the practice' in New South Wales", Beazley JA said that figure was "subject to adjustment up or down to take account of the plaintiff's particular circumstances". In State of NSW v Moss, above, Heydon JA said at [100], "15% is the starting point, and, indeed, as the figure used in most cases, usually the finishing point". His Honour also acknowledged that that allowance "can be departed from in an appropriate case".
81 A discount for contingencies or vicissitudes takes account of "matters which might otherwise adversely affect earning capacity": Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 497 per Dawson, Toohey, Gaudron and Gummow JJ. An assessment of the allowance which should be made for vicissitudes is a quintessentially impressionistic exercise. There is no hard and fast rule governing the approach to be taken to its calculation: see General Motors-Holdens Pty Limited v Moularas (1964) 111 CLR 234 at 350 per Menzies J.
82 It is plain that allowances for vicissitudes have not been immune from review on appeal, despite the impressionistic nature of their calculation. However, the Court should not, in my view, entertain an appeal seeking to challenge the allowance for vicissitudes where the appellant advanced no argument before the primary judge as to why the "usual deduction" should be departed from.
83 Mr Sullivan QC's submission that this Court should entertain the appellant's complaint about the allowance for vicissitudes albeit that the submission was "overlooked" at trial gives no weight to the principles concerning when a Court will permit a party to raise a new case on appeal to which I have already referred. There are no exceptional circumstances which would warrant this Court permitting the appellant to depart from the manner in which he had conducted the case at trial.
84 The respondent was, in my view, entitled to feel aggrieved that the primary judge increased the deduction for vicissitudes despite the appellant's silence on the point. He would be additionally and justifiably aggrieved in the sense to which the High Court referred in Whisprun v Dixon if the appellant was permitted to submit that an even greater amount should be deducted for vicissitudes. I also accept Mr Neil SC's submission that the course of the trial may have differed if the appellant had argued for a higher deduction for vicissitudes. At the very least the respondent would have been able to make detailed submissions to the primary judge seeking to persuade him to accept the usual figure. Even if this did not dissuade the primary judge from the course he took, his reasoning process would no doubt have been exposed, thus enabling this court properly to exercise its rehearing function. It would, in my view, be inimical to the due administration of justice to allow this point to be raised on appeal.
85 This ground of appeal should be rejected.
86 I would add that, in my view, where the defendant's counsel does not demur to the plaintiff's submission that the discount for vicissitudes should be the usual figure of 15%, the primary judge should not depart from that figure without giving the parties notice of his or her intention to do so and inviting them to make submissions about the appropriate percentage for this factor.