Commonwealth of Australia v Ryan

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 20844/96 FILE NUMBER(S) : LOWER COURT Newman AJ JUDICIAL OFFICER :

COUNSEL : R S McIlwaine SC & D J Brogan - Appellant F M Douglas QC & W D H Walsh - Respondent SOLICITORS : Australian Government Solicitor, Sydney - Appellant James Taylor & Co, Myrtleford, Victoria - Respondent CATCHWORDS : Damages - Melbourne/Voyager collision - plaintiff left Navy - claim for loss of pension entitlement - whether failure to direct jury as to loss of a chance - case not fought on that basis - fought as case of proof of loss on balance of probabilities - jury directed accordingly - no request for redirection - cannot now complain as to direction - whether open to jury to find loss of pension entitlement - on basis of proof of loss on balance of probabilities was open to jury - interest awarded by adoption of reasons in earlier case - whether failure to exercise discretion - adoption was exercise of discretion - whether error in exercise of discretion - no error identified or established. ND Daniels v Anderson (1995) 37 NSWLR 438; The Guildford [1956] p 364; Haines v Bendall (1991) 172 CLR 60; House v The King (1936) 55 CLR 499; McLean v The Commonwealth of Australia (Sperling J, 22 August 1996); CASES CITED: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Norris v Blake (No 2) (1997) 41 NSWLR 49; Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43; Ryan v The Commonwealth of Australia (1999) NSWSC 573; Singleton v Ffrench (1986) 5 NSWLR 425; Vardanega v Concrete & Terazzo Pty Ltd (CA, 22 October 1979, unreported); Wenkart v Pitman (1998) 46 NSWLR 502. DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40195/02 CLD 20844/96

BEAZLEY JA GILES JA HODGSON JA

Thursday 21 November 2002 COMMONWEALTH OF AUSTRALIA v RYAN Judgment 1 BEAZLEY JA: I agree with Giles JA. 2 GILES JA: The respondent enlisted in the Royal Australian Navy ("the Navy") in July 1962, at the age of 17. He had left school at 15 and undertaken a motor mechanics apprenticeship, but did not complete the apprenticeship. He signed up for a 9 year engagement. He did his recruit training and became an Engineering Mechanic Class 2, of ordinary seaman ranking. He was serving on HMAS Melbourne at the time of the collision between HMAS Voyager and HMAS Melbourne on 10 February 1964. 3 In August 1996 the respondent brought proceedings against the appellant claiming damages for psychiatric injury and consequential physical impairments alleged to have been suffered as a consequence of the collision. The appellant pleaded that the respondent's cause of action was statute barred by virtue of the Limitation Act 1969. The respondent's application for an extension of the limitation period was heard in June 1999, and was successful (Ryan v The Commonwealth of Australia (1999) NSWSC 573). 4 The respondent's claim was heard before Newman J and a jury in February 2002. The appellant admitted negligence, but the psychiatric injury and consequential physical impairments from being part of and witnessing the collision, and the economic effects of those matters, were very much in issue. The jury returned a verdict for the respondent and assessed his damages exclusive of interest at $780,000. 5 After a contest over interest, which had been reserved as a matter for the judge (see Vardanega v Concrete & Terrazzo Pty Ltd (CA, 22 October 1979, unreported), the respondent obtained judgment for $1,222,904.97 and orders for his costs. 6 In this appeal the appellant sought to challenge first, so much of the jury's assessment of damages as compensated for loss of the pension entitlement the respondent would have enjoyed had he re-enlisted and remained in the Navy after his initial 9 year engagement, and secondly, Newman J's award of interest included in the judgment sum.

Pension entitlement - general 7 The respondent was discharged from the Navy in July 1971, at the end of his 9 year engagement. He would have become entitled to a pension under the Defence Forces Retirement and Death Benefits scheme had he re-enlisted and remained in the Navy for a further 11 years to complete 20 years service. The pension could have been taken in part by a lump sum payment and in part by periodical payments. 8 The respondent engaged in civilian employment after leaving the Navy, until 1982 earning, depending upon the rank he would have achieved in the Navy something more or something less than he would have earned had he remained in the Navy until 1982. But the pension entitlement was a valuable perquisite of completion of 20 years service which in general terms was not available from civilian employment. Hence the respondent's case included that, if he had not suffered the psychiatric injury and consequential physical impairments from being part of and witnessing the collision, he would have continued his service after his initial 9 year engagement and would have become entitled to the pension, and that his damages included compensation for loss of the pension entitlement. 9 The appellant submitted that the evidence supporting the respondent's case in this respect, taken at its highest, was insufficient for the jury to find that the respondent would have re-enlisted and remained in the Navy for a further 11 years and insufficient for the jury to find that he would have achieved the rank of Chief Petty Officer. Both these findings, it was said, were essential in order that the jury's assessment of damages stand. The appellant further submitted that the directions to the jury were inadequate, in that the jury was not directed to consider the respondent's chance of becoming entitled to the pension as distinct from whether on the balance of probabilities he would have become entitled to the pension. Although presented as separate submissions, in fact the two submissions inter-acted.

Pension entitlement - as presented to the jury 10 In his opening to the jury counsel for the respondent, Mr Joseph SC, said nothing of loss of a chance. He said that the jury would be satisfied that the respondent would have remained in the Navy for 20 years and got the pension. He did say that the jury would hear "evidence about his chances of promotion and what level he would have been likely promoted [sic] had he served the 20 years as against the 9 years", but then said that the jury would have to decide "at what level he would have been in terms of rank at the 20 years". When acknowledging the difficulty in deciding this, he did not suggest that loss of a chance came into the jury's task - "This question about promotion is not easy. One has to try and reconstruct the past. You can't be certain about it. One has to reconstruct the past and it's a long way past. We are talking about 1964 onwards. We are talking about a young man who was just, as I say, developing. May be the Commonwealth is going to say he would have developed the way he has in any event, therefore forget everything I have said and made submissions about. We say that is not correct." 11 Counsel for the appellant, Mr McIlwaine SC, did not open to the jury. 12 At the conclusion of the evidence the jury was provided with schedules containing agreed figures on alternative assumptions. 13 One set of schedules was headed "Comparison between net actual income and net 'but for' income for the period 1968 to 1982". The schedules proffered three alternative assumptions as to the respondent's promotions until completion of 20 years service. On the assumption only of promotion to Leading Engineering Mechanic on 2 July 1968, it was said that the respondent "earned $13,800 more in civilian life than he would have earned if he had stayed in the Navy and achieved the assumed promotions [sic]". On the assumption of further promotion to Petty Officer on 2 July 1972, it was said that the respondent earned $2,900 more in civilian life et cetera. On the assumption of further promotion to Chief Engineering Mechanic on 2 July 1976, it was said that the respondent earned $10,000 less in civilian life et cetera. (Chief Engineering Mechanic was the rank of Chief Petty Officer.) The narration was not entirely apt, since on the respondent's case, the effects of the collision had impeded his promotion while in the Navy and the heading to the schedules suggested lost income prior to the respondent leaving the Navy. For present purposes it does not matter. 14 The other set of schedules was headed "Net loss of pension entitlement from 1 July 1982 for life". Each stated a rank at discharge followed by a figure for "full pension" and another figure for "lump sum plus reduced pension". Four assumptions as to rank at discharge were proffered, and they and the corresponding figures were - Rank Full pension Lump sum plus reduced pension Engineering Mechanic $291,460.68 $296,125.39 Leading Engineering Mechanic $328,164.82 $333,585.61 Petty Officer $353,279.02 $360,343.21 Chief Petty Officer $424,984.59 $433,482.61

15 From the words "net loss" it seems that any superannuation entitlement from civilian employment was taken into account. Presumably the figures stated comprised past periodical payments since 1982 plus the present-day value of future periodical payments and, in the partial lump sum alternative, a past lump sum payment. 16 In the presence of the jury these schedules were discussed as follows - "McILWAINE: What I'm going to do is by consent and that is they have worked out a number of schedules which assume - well, first of all, they take what is agreed is his wages he has earnt since July '71 up until July 82 and then they have worked out what he would have earned if he had been promoted to a leading engineering mechanic at a certain time and a petty officer and a chief petty officer within that period and then you will be able to see whether there's any loss. Then they have done the same thing with him only getting to a petty officer, the same thing only getting to a leading engineering mechanic. Now what Mr Joseph was saying was that if in that 10 years he was, in fact, promoted to a chief petty officer which we say would not have happened then he would have earned $10,000 less in civilian life than if he stayed in the Navy. HIS HONOUR: That's net? McILWAINE: Yes. Now, in fact he has no loss at all even if he got to petty officer within that period, no loss if he got to leading mechanical engineer. In fact he would have earned more, in fact he would have earned more in civilian life than if he stayed in the Navy, so what the jury will need to do is to decide after argument what they find he would have got to within that period and depending on what they find -- HIS HONOUR: Has the plaintiff established on a balance of probabilities - and you are going to hear this phrase, members of the jury, I regret to say time and time again not only from me when I sum-up but from counsel - what has the plaintiff established on a balance of probabilities that he would have reached the rank of chief petty officer, had he established that he would have reached the rank of petty officer, had he established again et cetera. They are the questions the jury will be asked. McILWAINE: Yes, and this all presupposes that he would have re-engaged anyway. HIS HONOUR: Of course that's another question. Has he established on the balance of probabilities that he would have re-engaged as of July 1971 but these are the questions which I regret to say, members of the jury, you have got to answer. McILWAINE: That's what those agreements do and then there's an agreement also as to the value of his pension had he remained in the Navy for 20 years. Now, natural enough [sic], it's not quite that simple because if he had stayed in for 20 years, and that's the first thing the jury will need to decide, then it's a question of what rank he would have got to, so the same idea again but all the different results are there depending on what the members of the jury find. JOSEPH: I tender that schedule, your Honour. McILWAINE: It's been tendered as an agreed set of figures subject to whatever the findings the jury makes. HIS HONOUR: There are a set of arithmetic calculations which are there to assist the jury in its deliberations, but they are not proof of the figures in terms of what has been established in the case. I think you understand, members of the jury, the purpose of the document. I have no doubt, members of the jury, that you are going to hear a lot more about it before you are through. So am I." 17 The jury was also told that there had been arithmetic agreement on out-of-pocket expenses, although the appeal papers did not include whatever was provided to the jury in that respect. 18 In the absence of the jury, after the discussion concerning the schedules earlier set out and apparently provoked by the judge's references to the balance of probabilities, there was the exchange - "JOSEPH: They are the three matters I wanted to raise. The other matter was this. Your Honour just said a moment ago to the jury we have to prove, on the balance of probabilities what would have happened if he had been injured, whereas there is the alternative loss of chance claim. HIS HONOUR: I was only shorthanding it, to try and help the jury before I got to the formal summing up. JOSEPH: I am not worried, I just wanted to -- HIS HONOUR: As I said, there are going to be a whole series of things which they have to find, on the balance of probabilities to find for him. That's all I was pointing out. As far as loss of chance and the rest is concerned. My summing up will depend a lot upon what is put to the jury." 19 Mr McIlwaine then addressed the jury. He began with an "overview" of the respective positions of the parties, in which he described the respondent's case as a case that the appellant was responsible for the respondent "not re-engaging after nine years" and that that - " … has the consequence if he had been promoted to a certain rank, there is a difference between what he earnt in civilian life and what he would have earned in the Navy and he also missed out on the chance of remaining for 20 years in which he event, he would have been entitled to a pension."

Mr McIlwaine said that the appellant's case was that the respondent had not suffered any recognised psychiatric disorder, and therefore that he was not entitled to any damages at all. 20 In the course of addressing on why the respondent left the Navy, Mr McIlwaine said - "This claim that is now brought that he should be entitled to damages for the loss of a chance of getting a pension if he stayed for 20 years - he never intended to stay for 20 years; he may have when he joined in those few years after he joined thought, 'This is a pretty good life, pretty smart uniform, get to see places I would never get to see otherwise; I like this', but things change as we moved through the 60's; that is why he left. Nothing to do with Melbourne colliding with Voyager, we would suggest to you - commonsense suggests that to you." 21 Mr McIlwaine later put his anticipation of what Mr Joseph would say. It included that Mr Joseph "has to convince you as a matter of probability that the plaintiff would have been promoted to a Chief Petty Officer". He invited the jury to conclude that there - " … is not one scrap of evidence in this case, not one scrap upon which you could make a finding that this man would have been promoted at all … There is absolutely not one shred of evidence upon which you would be able to make a finding, even if you were to accept that he was going to stay there for another eleven years, that he would have been promoted … ". 22 At a later point again Mr McIlwaine said, referring to the figures in the schedules on the assumption of promotion ultimately to Chief Petty Officer - "You couldn't possibly, with respect, use that because there is no evidentiary basis for you to find that he would have got to Chief Petty Officer at discharge. You can't use that because there is no evidentiary basis upon which you could be satisfied, in my submission, he would have got to a Petty Officer." 23 At this point came a reference to loss of a chance, although immediately followed by a reference to the probabilities. Mr McIlwaine continued - "'Leading Engineering Mechanic at discharge': Well, you may say, 'Oh well, commonsense suggests he might have got there'. But even if you get him that far - see, it all hinges as far as this economic loss is concerned on you finding that the reason he didn't re-engage when the nine-year term ended was because of 'Melbourne' 'Voyager" - even if you are getting to this, you can't give him the whole lot anyway because all he is entitled to is a proportion of it which reflects the extent to which you find he lost the chance of becoming eligible to a pension. In my respectful submission, you just simply would not be satisfied for the reasons I have mentioned that he would have re-engaged after the nine-year period. So if you find that, then you don't even have to think about this (indicating a document), and even if you do find, don't be led into error by assuming you think back through the evidence, what witness has come along here and told you where he was likely to be? Nobody, and the onus is on him, on Mr Ryan to prove his case to your satisfaction on the probabilities and he has failed to do that." 24 When in his address to the jury Mr Joseph came to damages, he first invited the jury to award "a large amount of general damages" for pain and suffering and damages for loss of expectation of life. He then identified the heads under which the respondent claimed economic loss, saying - "Firstly, in respect of his wages between 1971 and 1982 the plaintiff says that he lost $10,000. In respect of his pension, past and future, the plaintiff says that he has lost $433,482. In respect of his past and future medical and hospital expenses, the plaintiff says that you will award $69,799. In respect of home assistance, the plaintiff says for past and future you will award $53,000. In respect of the plaintiff's loss of earning capacity after 1982 you will award a lump sum and I will come back to that later. Now they are the various heads that the plaintiff is claiming." 25 Mr Joseph then sought to support the figure of $433,482 in respect of the pension, and as part of it the promotion to Chief Petty Officer relevant also to the figure of $10,000 for lost income prior to 1982. He invited the jury to be satisfied that the respondent would have remained in the Navy for the 20 years and would have achieved the rank of Chief Petty Officer. In the course of doing so he said - "We say this is not a chance case. What the Commonwealth puts to you is you might think there is only a 10 per cent chance, say, of him ever serving the 20 years. Therefore, you might, on the figures I am talking about, only give him 10 per cent of the figure I referred to. We say, no, you will be satisfied that on the probabilities he would have served 20 years, given the past and given the future." 26 Mr Joseph invited the jury to award a further figure for loss of earning capacity after 1982 on the basis that the psychiatric injury and consequential physical impairments to on the respondent limited the earning capacity he would otherwise have enjoyed after leaving the Navy in 1982, acknowledging that it was "a hard one" and saying - "What it is will be a matter for you to decide and you just have to consider it, value it, both since 1982 and for the future and how he has been restricted in his chances of promotion and work because of the effects of the disorder." 27 Mr Joseph then dealt briefly with domestic assistance, and as to out-of-pocket expenses said only "I have given you that figure". 28 In the summing-up Newman J said that any damages "Must reflect upon your consideration of the various heads of damage, which I shall shortly refer to and to which you have already had reference made by counsel". He said that there must be full and fair compensation for the effects of the collision on a once and for all basis. 29 His Honour said that the onus lay on the respondent "to establish all matters of damages but, again, on the balance of probabilities" He described the respondent's primary case as that, if he had not suffered from post traumatic stress disorder - " … he would, in all probability, have gone on to reach the rank of Chief Engineering Mechanic and you have those documents which set out the comparisons. I am not going to go slavishly through it with you. You have the figures before you." 30 His Honour continued - "The defendant says if you accept that the plaintiff is entitled to a verdict, that does not mean that the defendant concedes that all of this should flow to the plaintiff as a consequence of that finding. The defendant says, again, as I have pointed out, the onus is on the plaintiff to establish those matters on a balance of probabilities. The defendant says what the plaintiff is asking you to accept is perfection, that he would have stayed on in the Navy for the full 20 years, that he would have reached the rank of chief Engineering Mechanic. The defendant says using your commonsense and judgment, do you accept on the balance of probabilities that is so? The plaintiff, on the other hand, says, as Mr Joseph puts to you, we are only asking for three ranks: it is not as though we are asking for the world: it is not as though he is going on to become a Rear Admiral. Mr Joseph referred to Schofield and Mangan, whose education at school was only at the same level as the plaintiff at school; look how they progressed, Mangan going on, Schofield although leaving, had reached the rank of Acting Petty Officer at about the time when the plaintiff himself left the Navy. Mr Joseph says, look, look at those examples and you will conclude that what the plaintiff set out to prove is certainly, on a balance of probabilities, a matter you would find. Now, members of the jury, if ever there is a matter which calls for exercise of commonsense by people who life in the community, it is those arguments; the determination of those arguments and there they are and it is a matter for you as to what you accept. It may be - I am not making any suggestions myself; I am not attempting to make any suggestion to you - that you might find that he might not have gone on to be the Chief Petty Officer. You might find that he has not established that he might have gone to become a Chief Petty Officer, but find on a lesser basis. It may be you would find, on the balance of probabilities, he would have gone on had these events not occurred. In that event, you would award him what he seeks, but it is a matter for you and it is a matter for you on the evidence and again, exercising your commonsense, knowledge of the community and the way things work." 31 After brief reference to counsel's addresses for and against becoming Chief Engineering Mechanic, sometimes referring to the rank of Chief Petty Officer, his Honour said that if the jury were to conclude that the respondent would have become a Chief Engineering Mechanic "the mathematical difference at the end of 20 years in the Navy as against his earnings in the community would have been $10,000". His Honour said that as well the respondent sought a buffer sum to make up for his loss of opportunity to earn more money than he had been able to earn. (This was said as to the period from July 1961 to the present and onwards to age 65. In fact the claim was for the period from 1982. Nothing was made of this slip in the appeal.) 32 His Honour then said - "Now, members of the jury, of course, a very large part of his claim is the question of his loss of pension entitlements. Fortunately, the parties have worked out the calculations which mathematically occur if you make certain determinations, ranging, as you are aware, from the loss of pension if he had been a Chief Petty Officer, through to the rank of Engineering Mechanic. The difference, that ranges from - round figures, even though you have the exact figures before you - $296,000 through to $433,000. Again, I think I have summarised the arguments about that to you in other contexts, but it comes back to you coming to a determination of whether or not the plaintiff has established on the balance of probabilities that had the events of 10 February 1964 and the consequences upon him not occurred, he would have re-engaged and he would have gone through to the rank of Chief Petty Officer. The arguments which the defendant raised on that matter I have already been to and I believe you understand the issue which you have to determine under that head. The defendant says you will give him nothing. The plaintiff says you will give him, at the top of the range the $433,000 odd, mathematically calculated, on what the pension would have been worth to him. Members of the jury, I don't think I need to say any more to you on that topic. I believe that the battle lines are clearly drawn." 33 After reference to out-of-pockets, his Honour said - "If you were to accept the plaintiff's primary case and accept it throughout, that all the consequences - heart condition, ulcer being aggravated, perhaps the causation of the reflux problem, the vascular problem - then if you were to accept that the plaintiff has established his case on the balance of probabilities in relation to those matters, you would award him that figure as part of the damages you give him. Again, members of the jury, it comes back to the question of what you determine that the plaintiff has established on the balance of probabilities. You will award him accordingly. Again, I believe that the battle lines are clearly drawn; they really go back, ultimately, to the same thing, to similar considerations going to primary liability. So, members of the jury, I don't believe I could be of much more assistance to you on that point, so I shall leave it." 34 His Honour then dealt with to general damages and "maintenance", meaning domestic assistance. 35 At the conclusion of the summing-up his Honour called on counsel. Mr Joseph raised one matter. Counsel for the appellant made no application.

Pension entitlement - directions 36 The decisions have distinguished between proof of causation of loss, including by loss of a chance, on the balance of probabilities, and valuation of a lost chance according to the possibility or probability of the case. It is sufficient to refer to Daniels v Anderson (1995) 37 NSWLR 438 at 525-31; see also the discussion in Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002), paras 1.9.3 - 1.9.5. A fact proved on the balance of probabilities is in law treated as a certainty, so that a probability in percentage terms more than 50 per cent becomes a certainty. The reverse is also true, so that a probability in percentage terms less than 50 per cent is a failure in proof of the fact. Once loss by loss of a chance has been proved on the balance of probabilities, in the valuation of the lost chance a probability in percentage terms more or less than 50 per cent can bring damages according to the degree of probability. 37 Whether the respondent would have re-enlisted and remained in the Navy for a further 11 years, and what rank he would have achieved, were past hypothetical events. The appellant said, and the respondent denied, that those facts were to be found not on the balance of probabilities, whereby if so found they were treated as certainties, but according to degrees of probability bringing compensation for loss of the pension entitlement according to a degree of probability. 38 I do not think it necessary to go into whether or not the respondent's case was truly a loss of a chance case, or whether the jury should have been directed to consider the respondent's chance of becoming entitled to the pension as distinct from whether on the balance of probabilities he would have become entitled to the pension. Even if re-enlistment and ultimate rank should not have been found on the balance of probabilities, and should have been found according to degrees of probability, that was not how the trial was conducted. Although there were the occasional references to loss of a chance in counsel's addresses, the case was fought on the basis of proof or non-proof of re-enlistment and ultimate rank on the balance of probabilities. It was left to the jury to decide whether or not, on the balance of probabilities, the respondent had established that he would have remained in the Navy for the further 11 years and would have achieved one of the ranks in the schedules. Counsel for the appellant did not ask for a re-direction or a direction whereby the jury should approach the matter by arriving at a level of chance that the respondent would have re-enlisted and remained in the Navy for the further 11 years and achieved one of the ranks in the schedules. 39 Despite a Delphic mention of "the alternative loss of chance claim", Mr Joseph did not open such a case and expressly denied it in his address to the jury. In fact there was no question of an alternative loss of chance claim: the respondent's case either was or was not a loss of a chance case. Mr McIlwaine expressed no dissent from the judge's references to proof on the balance of probabilities when the schedules were described to the jury, and did not have the true nature of the respondent's case clarified by a ruling. His own language was overwhelmingly that of certainty one way or the other. Although at one point in his address Mr McIlwaine referred to loss of a chance, he immediately said that the jury "would not be satisfied … that [the respondent] would have re-engaged after the nine year period", and that the onus was on the respondent "to prove his case to your satisfaction on the balance of probabilities and he has failed to do that". 40 It is no wonder, then, that Newman J summed-up as he did. His Honour had said that as far as loss of a chance was concerned his summing-up would depend a lot on what was put to the jury. The jury was given the schedules and was told that "all the different results are there depending on what the members of the jury find". They were to take figures according to their findings, and they were not invited to take part of one of the figures according to the probability of re-enlistment or achieving one of the ranks. The parties joined issue on whether the respondent had proved on the balance of probabilities that he would have re-enlisted and reached a particular rank, with the emphasis on the rank of Chief Petty Officer. 41 Proof on the balance of probabilities is an all or nothing approach. It must not be forgotten that finding a lost chance and putting a value on it may give the plaintiff less than all and may take from the defendant more than nothing. The respondent said that the jury should give him all, although the amount of the all depended on the rank found on the balance of probabilities. The appellant said that the respondent had not proved an entitlement to all and should be given nothing. For understandable reasons, the appellant did not invite the jury to give the respondent more than nothing although less than all: the passing reference to loss of a chance in Mr McIlwaine's address was not such an invitation, and was no more than an emphasis that the respondent's claim to all was not maintainable. Newman J gave directions accordingly. 42 There was no request for different or further directions. As was said by McHugh JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 440, in a judgment with which Samuels JA agreed - "If a party is to rely as a ground of appeal on a misdirection in a summing-up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give." 43 In my opinion, the appellant can not now complain that the respondent's case was truly a loss of a chance case and that there was error in the directions to the jury.

Pension entitlement - sufficiency of evidence 44 The appellant must show that the jury's verdict was - " … against the evidence in that the evidence in its totality preponderated so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach." ( Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41)

I will use the shorthand of a verdict, or as the appellant put its submission findings, not open to the jury. 45 The jury returned a verdict for an undifferentiated sum of $780,000. At the trial agreement on the probable components of that sum was reached for the purposes of interest. In the appeal the respondent said, and the appellant conceded, that the agreement did not carry over to the present question. The probable components then agreed were - "General damages $210,000.00 Loss of expectancy of life 25,000.00 Lump sum payment [of pension] on 7/6/82 32,318.84 Reduce [sic] pension payments since 1982 170,276.86 Future Pension 230,886.92 Lost Income from 1//7/71 - 2/7/82 10,000.00 Domestic assistance since April 1998 Until trial date 9,000.00 Future domestic assistance 23,000.00 Past out-of-pockets 36,049.00 Future out-of-pockets 33,752.20 Total $780,000.00" 46 The appellant's submission as to sufficiency of evidence inter-acted with its submission as to the directions to the jury because, in order to judge the sufficiency of the evidence, it is necessary to ask what had to be proved. Was it whether on the balance of probabilities the respondent would have re-enlisted and remained in the Navy for a further 11 years, and would have achieved the rank of Chief Petty Officer? Or was it whether the probability of those occurrences in percentage terms was very high, equivalent to a certainty as a probability rather than because in law treated as a certainty? 47 In the manner the appellant developed the submission, the second of these alternatives had to be proved. It was said that the evidence was insufficient for the jury to be satisfied of a probability equivalent to a certainty. It follows from what I have said in relation to the directions to the jury that, in the manner the trial was conducted, that was not the satisfaction required of the jury. Whether the relevant findings were open to the jury is to be determined according to whether they were open to be found on the balance of probabilities. Although it was not entirely clear, I think the appellant maintained its submission even on this basis. It had, of course, taken that stance before the jury. 48 The first limb of the appellant's submission did not depend on ascertaining an amount at which the jury arrived as compensation for loss of the pension entitlement. It was common ground in the appeal that the jury's damages included something for loss of the pension entitlement. If it was not open to the jury to find that the respondent would have remained in the Navy for a further 11 years after the expiry of his initial 9 year engagement, it was not open to the jury to include anything for the loss of the pension entitlement. There could be a further question of whether the entire assessment of damages had to go, or whether it could be saved less an amount representing compensation for loss of the pension entitlement, and ascertaining what the jury arrived at could come in at that point. However, for the reasons which follow I do not think that point is reached. 49 The respondent gave evidence that he joined the Navy for a career. He said that he saw himself as in the Navy for at least 20 years, until he got the pension and probably to retirement. He said that his attitude to the Navy changed after the collision, that he felt he had been let down and was disheartened, and that he had fears of going to sea and of the night flying in which his ship was involved. He said that part of him wanted to stay in the Navy and part wanted to get out, and when asked to explain - "A. It's difficult. Part of me wanted a career in the Navy. When we hit the Voyager that was devastating to me, for want of a better word. I just felt I wasn't going to get anywhere. The incident had, as I said, devastated me. I was guilty because I didn't do what I should have done, and I just wanted to get out." 50 Mr Peter Mangan joined the Navy at the same time as the respondent, served with him, and became a close friend. He gave evidence that on a number of occasions prior to the collision the respondent said that he loved the Navy and that he was "in for the long haul" and intended "to do at least 50 years but hoped to have age 55". Dr Francis Larkin, a psychiatrist to whom the respondent was referred in 1986, said that the respondent told him that he wished he had not left the Navy. 51 The respondent married in December 1964. His first child was born in 1967 and his second child was born in 1969. Dr Larkin also said that the respondent told him that he left the Navy to be with his wife and children on a permanent basis, although when that was put to the respondent he said that he did not leave the Navy for that reason. In cross-examination it was put to the respondent that his 1962 attraction to the Navy changed when he had the commitments of marriage and a family. The respondent did not agree. The cross-examination continued - "Q. Well you wanted to be at home with your family, spend time with your family. That's right isn't it? A. Not really. You've got to remember I was in two minds then. Part of me wanted to stay in the Navy and part of me wanted to get out. Q. Part of you wanted to get out because you wanted to have the time with your wife and family, that was one part and the other reason you wanted to get out - HIS HONOUR: Ask one question at a time. McILWAINE: Q. that was one reason you wanted to get, you wanted to spend time with your family? A. Yes. Q. And the other reason you wanted to get out was because during the course of your time you had come to realise that the qualifications that you were going to get in the Navy were not going to be useful to you after you left the Service. That's right isn't it? A. Well that's why I went with additional training. Q. Because you realised, and you knew, 'Well I'll have to prepare myself by doing the lagging and the bricklaying so that when my nine years time expires I will have qualifications I can use in civilian life?' A. Yes, because - Q. And the fact of the matter is that the reason that you didn't re-engage at the end of your nine year term was because the Naval life no longer suited your circumstances? A. Going to sea gave me a problem. Q. And that's why you decided that you were not going to re-engage because at the end of your nine year engagement you wanted to return to civilian life, to use such qualifications as you could get, your lagging and your bricklaying and be able to life ordinarily with your wife and children? A. I just wanted out of the Navy. Q. That's what you say now and that's what you ask the members of the jury to believe because that forms an important part of your claim for damages against the Commonwealth doesn't it? A. I am telling you the truth here, part of me wanted to stay in the Navy. I had a great desire to have a career in the Navy and I was devastated after the Voyager. Q. That may have been the case if you ever really thought about it when you enlisted in 1962 but once you were married and had a family and realised that the qualifications you were going to get were not going to be of much use to you in civilian life, you decided to get out as soon as you could which was when your nine year engagement finished, and lead a civilian life? A. I decided to get out of the Navy because I was disappointed with it. Q. I suggest to you that that is simply something that you have invented in order to try and support your claim for damages that you bring now against the Commonwealth? A. It's your prerogative to think that way. Q. How do you explain the note in Dr Larkin's notes where he records you having told him, 'I did leave because I wanted to be home with wife and kids on a permanent basis'. How do you explain that? A. The Navy had let me down, can I say that. And I wanted out. Now if I go out of the Navy what am I going to do? Leave my family?" 52 This did not elevate being with his wife and children and an eye to other qualifications to determinative reasons for the respondent leaving the Navy at the expiry of the initial 9 year engagement. The evidence of intention to stay in the Navy, changed by his disappointment and problems with going to sea, remained. In my opinion, on the evidence it was open to the jury to find that the respondent would have re-enlisted and remained in the Navy for a further 11 years. The pension was itself a powerful economic incentive to do so. 53 The second limb of the appellant's submission did involve ascertaining an amount at which the jury arrived as compensation for the loss of pension entitlement, since the value of the pension depended on the rank achieved. Any damages for lost income in the period from the collision until 1982 also depended on the rank achieved, as can be seen from the schedules. Although in principle its submission could have extended to it, the appellant did not challenge so much of the jury's assessment of damages as compensated for that lost income. 54 The appellant submitted that it could be seen from the damages of $780,000 that the jury had regarded the respondent as certain to have reached the rank of Chief Petty Officer and had given him the full compensation of $433,482 for loss of the pension entitlement. Deducting the other known figures put to the jury, $10,000 for lost income plus $69,799 for out-of-pockets plus $53,000 for domestic assistance, left $647,201. General damages could not exceed a sum in the order of $200,000, it was said, and of the something like $447,000 remaining it should be inferred that the amount arrived at as compensation for the loss of the pension entitlement was $433,482 rather than the next amount down in the schedules, $360,343. 55 Such a process of inference can be undertaken, see Vardanega v Concrete & Terrazzo Pty Ltd. But in this case I consider the inference invited by the appellant to be speculation. The ultimate question is whether the total amount assessed as damages by the jury was so excessive as not to have been open to the jury. The total amount would certainly have included damages for pain and suffering and loss of expectation of life (and the evidence was of loss of 13 years expectancy). I would not accept that a sum in the order of $200,000 was the maximum open to the jury (as an aside, the agreed figure below totalled $235,000). The total amount probably included an amount for loss of earning capacity after 1982, and the range open to the jury was not inconsiderable. Given the other components of the $647,201 and the amounts which the jury could have attributed to them without appealable excess, I do not think it can safely be concluded that the jury gave the respondent the $433,482 rather than the $360,343. 56 Prior to the collision the respondent had passed the examination for promotion to Engineering Mechanic Class 1. He was promoted in July 1964. It was necessary that he serve at this rank for 18 months before he could be promoted to Leading Engineering Mechanic, for a further 18 months at that rank before he could be promoted to Petty Officer, and for a further 24 months before he could be promoted to Chief Petty Officer. 57 In my opinion, there was evidence on which it was open to the jury to find on the balance of probabilities that the respondent would have been promoted to Chief Petty Officer, let alone to Petty Officer. For the reasons earlier given, even if the findings should not have been left to the jury on the balance of probabilities they were, and so that is the basis on which the sufficiency of the evidence is to be judged. There was time for the promotions to have occurred, in conformity with the required periods of service in the lower ranks. There was evidence that the Navy encouraged promotion and that, due to the demands of the Vietnam War, promotions occurred after only the minimum periods. The respondent had left school at an early age and did not have a successful examination history, but he had passed the first naval examination barrier. Mr Mangan had achieved the rank of Commander, although he had left school at the completion of year 3 and had failed a naval examination, and Mr Mangan was complimentary of the respondent's professional knowledge and competence. Another of the respondent's contemporaries, Mr Paul Schofield, became an acting Petty Officer in 1970, having passed the necessary exams although he had left school in year 3 and was not good at examinations. He left the Navy in 1972. There was no suggestion that the respondent engaged in any disciplinary misconduct, indeed it was expressly disavowed. 58 The appellant said that the respondent failed to call evidence from a naval person to the effect that, knowing or knowing of the respondent and his qualities, that person was of the opinion that the respondent would have been promoted to Chief Petty Officer had he remained in the Navy. Assuming that such evidence could be given (evidence of that kind is referred to in Norris v Blake (No 2) (1997) 41 NSWLR 49 at 52-3), it is not essential. Findings as to past hypothetical facts are necessarily circumstantial, and it was open to the jury to find the respondent's likely path in the Navy without direct opinion evidence. 59 That is enough reason to decline to accept this limb of the appellant's submission, even if it could be concluded that the jury gave the respondent the full $433,482. Because I do not think that can be concluded, there is further reason. The jury may have thought that, on the balance of probabilities, the respondent would have achieved the rank of Petty Officer, and given the respondent the $360,343. I do not think that the appellant has established, as the answer to the ultimate question, that the total verdict was so excessive as not to have been open to the jury.

Interest - general 60 The interest was awarded pursuant to the power conferred by s 94(1) of the Supreme Court Act 1970 - "(1) In any proceedings for the recover of any money (including any debt or damages or the value of any goods), the Court may order that there shall be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect." 61 The respondent had simply claimed "damages" in his statement of claim, and had not specifically claimed interest. Newman J held that it was necessary for the statement of claim to be amended to claim interest and granted leave to amend, and awarded interest on the appropriate components of the damages from 1 July 1972. The appellant appealed on the grounds that the leave to amend should not have been granted, that even if it were granted the resulting claim for interest was statute barred (this was really the appellant's reason why leave to amend should not have been granted), and that any interest awarded should not have been from 1 July 1972 but should have been from 8 August 1996, 10 June 1999 or 29 June 1999. At the hearing of the appeal the appellant abandoned the grounds as to amendment and statute barring, but argued the further ground that his Honour had not exercised his independent discretion as to the period for which interest should be awarded. The respondent did not oppose this enlargement of the grounds of appeal.

Interest - exercise of discretion 62 The interest awarded commenced only on 1 July 1972 because it was then that s 94 came into force, see McLean v The Commonwealth of Australia (Sperling J, 22 August 1996). The respondent did not suggest that he should have interest from an earlier date. 63 Newman J noted the submission that interest "should not date from 1 July 1972, but from a later date", and continued - "As far as this submission is concerned it was conceded that the facts in this case are indistinguishable in the relevant sense from those in McLean v Commonwealth which was the subject of a decision of Sperling J on 22 August 1996 unreported. That decision in turn relied heavily upon cases such as Cowan v Hewitt in the Court of Appeal on 21 April 1980. While in law the decision of Sperling J in McLean's case is persuasive rather than binding before another single judge of the court, I am of the view that judicial comity requires me to adopt Sperling J's reasons in McLean's case. I should say that while certain parts of McLean's case were the subject of appeal, the judgment in question of 22 August 1996 does not appear to have formed part of that appeal. However, this judgment of mine is, of course, challengeable and, as I say, I adopt the reason [sic] given by Sperling J in McLean's case and, accordingly, I am of the view that the plaintiff is prima facie entitled to the interest he claims from 1 July 1972." 64 His Honour then referred to "an additional argument mounted on behalf of the defendant" concerning an effect of the late manifestation of the respondent's heart condition on interest on past general damages, and said that he thought the effect insubstantial. 65 The appellant submitted that, having said that judicial comity required him to adopt the reasons of Sperling J in McLean v The Commonwealth of Australia, Newman J had failed to exercise his own discretion. I do not think that is so. His Honour addressed the facts in his case, with the benefit of the concession that they were relevantly indistinguishable from those in McLean v The Commonwealth of Australia. He adopted Sperling J's reasons, but that was an exercise of his own discretion and the reference to comity was no more than proper recognition of the desirability of consistency in like cases. He addressed a particular facet of his case, the additional argument. Deciding that, with regard to the facts of his case and the additional argument, Sperling J's reasons should be adopted was relevantly an exercise of discretion.

Interest - period 66 Interest under s 94 is compensatory, to compensate the plaintiff for having been kept out of money which in law was due to him at the date of the wrong (Haines v Bendall (1991) 172 CLR 60 at 66). The appellant submitted that interest should have been awarded only from 10 June 1999, the date on which the extension of the limitation period was granted, or 29 June 1999, the date on which an amended statement of claim was filed following that extension. It submitted that until that time the respondent had not been kept out of his money "in the sense that the proceedings were not maintainable", and so that there was no occasion to compensate the respondent for having been kept out of his money. 67 In my opinion, that the respondent's claim against the appellant became statute barred, for a time was not maintainable against the appellant, and became maintainable on the extension of the limitation period, does not mean that the respondent had not been kept out of his money. The respondent was in law entitled to his money from the date of the wrong. There was for a period an impediment to proceedings to enforce his entitlement, but the impediment was removed. For the purposes of the award of interest pursuant to s 94, the respondent should be regarded as having been kept out of his money prior to 10 June 1999. 68 As a fall-back position, the appellant submitted that interest should not have been awarded in respect of the period prior to the commencement of the proceedings on 8 August 1996. The submission was put with some diffidence. It was said in the written submissions that "it is certainly arguable that no interest ought to have been awarded up until the time that the proceedings were commenced, particularly in the light of the fact that the Respondent knew about his psychiatric condition having consulted Dr Larkin, a psychiatrist, in 1986". It appears that the thrust of the submission was that the late commencement of the proceedings should have led to confining the award of interest to the period from when they were commenced, and in oral submissions a more elaborate argument was put to the effect that, although the respondent was not at fault in the lateness of the commencement, the fact that the Commonwealth of Australia was the defendant and the damages would be "paid by the community" meant that the period should be confined. That argument, which had not been put to Newman J, was then expressly withdrawn. 69 I am not sure that the fall-back position was in the end pressed. The judge's exercise of discretion took up the reasons of Sperling J in McLean v The Commonwealth of Australia. It is sufficient to say that, with regard to those reasons, no error in the exercise of discretion within the principles in House v The King (1936) 55 CLR 499 was identified or established.

Orders 70 I propose orders that the appeal be dismissed with costs. 71 HODGSON JA: I agree with the orders proposed by Giles JA, and generally with his reasons. 72 However, I would support the view that the questions of whether the respondent would have become entitled to a pension, and if so on what level, should not have been left to the jury as matters to be determined on the balance of probabilities. These are questions as to hypothetical events, and damages based on hypothetical events should generally be awarded so as to reflect the degree of probability of such events: Malec v. J.C. Hutton Pty. Limited (1990) 169 CLR 638 at 643. 73 Where there is a wide spectrum of possibilities, in this case ranging from obtaining no pension at all, to obtaining a pension at various intermediate levels, to obtaining a pension at the highest level that could have reasonably been possible, the best approach is often that supported in Norris v. Blake No.2 (1997) 41 NSWLR 49 at 73; namely, to take the figure applicable to the most likely alternative (if there are many alternatives, even this may have a probability considerably lower than 0.5), and then adjust it upwards or downwards according to one's assessment of the chances and figures associated with more favourable and less favourable alternatives. 74 In fact, this is the general approach taken in the usual assessment of future economic loss, when a figure is reached and a deduction for vicissitudes (usually 15%) is made, on the basis that on balance the alternatives are less favourable and justify that deduction. 75 In the present case, if the view were taken that the most probable alternative was retirement after twenty years' service with the rank of Chief Petty Officer, then there would have been no reasonably possible alternative that was more favourable, and many reasonably possible alternatives that were less favourable; and so some substantial deduction should then have been made from that figure. On the other hand, if the view were taken that the most probable alternative was retirement after twenty years' service with the rank of Leading Engineering Mechanic or Petty Officer, then there would have been both more and less favourable reasonably possible alternatives; and the view could have been taken that these balanced out, or perhaps justified some smaller adjustment one way or the other. 76 On that approach, having regard to the evidence as I understand it, a substantially lower figure of damages may have been reached. But that is not the question before this Court. 77 In my opinion, the appellant cannot complain that the matter was not left to the jury in this way, when the appellant sought to obtain an advantage from the other approach, by submitting in effect that the respondent was not entitled to damages in respect of pension rights unless he established on the balance of probabilities that he would have become entitled to a pension; and thus the appellant was content to have the matter left to the jury as it was. In those circumstances, it would be unfair to the respondent to take away his verdict and require a new trial, on the grounds that the question should have been left in different terms to the jury. 78 That being so, the appellant can succeed on this appeal on damages only by satisfying this Court that the total award was so excessive as not to have been open to the jury; and as shown by Giles JA it has not done this. 79 In relation to the question whether or not there was evidence on which the jury could have found, on the balance of probabilities, that the respondent would have reached the rank of Chief Petty Officer, an inference to that effect was available from evidence as to the respondent's qualities and capabilities, and as to the requirements for attaining that rank. It was not necessary to have any witness express a direct opinion that he would have attained that rank. If the appellant had wished to argue that the inference should not be drawn, because many people try to reach that rank but few succeed, it was in a position to call evidence to that effect, if it existed, and it did not do so. 80 On the question of interest, I agree with Giles JA that no ground is shown for interfering with the primary judge's exercise of discretion. 81 However, I note that no submission was made below, and no submission was made to us, that in cases of long delay in bringing proceedings, interest should be calculated at some rate less than that prescribed by the Supreme Court Practice Note. That prescribed rate is high, compared with some rates obtainable from safe investments or payable on some loans; and one justification for this may be to ensure that defendants do not obtain a benefit by delaying proceedings or withholding settlement offers. In a case where, even without fault by a plaintiff, there is very long delay in bringing proceedings, there may be justification for awarding interest at a lower rate, particularly if there is evidence as to rates available or payable. I do not, by holding that the appeal should be dismissed, mean to foreclose submissions along those lines in a future case. 82 There is one final aspect of this case on which I wish to comment. It cannot affect the outcome of the appeal, because it was not explored before the jury. A large part of the damages in this case appears to result from freely-made choices of the respondent, such as choices to over-indulge in alcohol and tobacco and the choice to leave the Navy. In so far as the jury awarded damages for the results of these choices, they may be taken to have found, as was open to them, that, but for the appellant's negligence, different choices would have been made. However, I am not certain that this is enough to make a tort feasor liable for the consequences of freely-made choices. The law is slow to recognise a duty to prevent self-inflicted loss: see Reynolds v. Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43, per Spigelman CJ at [20]-[27] and cases there cited. This approach may also be relevant to the assessment of damages. 83 Unless a psychological or psychiatric condition, or perhaps an addiction, is such as to deprive a plaintiff in a substantial way of the ability to make his or her own choices, it may be that, in order to recover damages for the consequences of choices, a plaintiff would need to prove that it was objectively reasonable in his or her own interests to make those choices, in the light of what he or she knew at the time. This may be necessary to prove causation (as discussed in The Guildford [1956] P 364), and not a matter of mitigation of damages, in respect of which the onus of proof would be on the defendant (Wenkart v. Pitman (1998) 46 NSWLR 502). If the plaintiff does not prove this, then the consequent losses may perhaps be considered the plaintiff's own responsibility, and not something for which the defendant should pay damages. **********

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