NAJDOVSKI v CRNOJLOVIC

Court of Appeal (NSW)|2008-04-29|Before: Allsop P, Basten JA, Windeyer J

CITATION: NAJDOVSKI v CRNOJLOVIC [2008] NSWCA 175

JUDGMENT OF: Allsop P at 1; Basten JA at 5; Windeyer J at 103

Allow the appeal with respect to the assessment of damages and set aside the judgment given on 9 June 2006 in the District Court.

Order the respondents to pay the appellant's costs of the appeal.

CATCHWORDS: APPEAL - appeal before two judges - matter of legal principle identified - rehearing of appeal - Supreme Court Act 1970 (NSW) s 46A - APPEAL - appeal from District Court on adequacy of damages - right of appeal - jurisdiction of the Court of Appeal - whether Court of Appeal should assess damages for itself - inadequacy of reasons of trial judge - failure to consider relevant and material evidence - Civil Procedure Act 2005 (NSW) s 56 - District Court Act 1973 (NSW) s 127 - Supreme Court Act 1970 (NSW) ss 75A, 105, 107 - DAMAGES - assessment flowing from motor vehicle accident - challenge to adequacy of damages - fair and proper assessment of appellant's incapacity and disabilities - past and future economic loss - superannuation entitlements - past and future attendant care services - Civil Liability Act 2002 (NSW) ss 3B(2), 15C - Motor Accidents Compensation Act 1999 (NSW) ss 126, 128 - Superannuation Guarantee (Administration) Act 1992 (Cth) - SUPERANNUATION - calculation of lost superannuation entitlements - construction of s 15C of the Civil Liability Act 2002 (NSW) - purposive interpretation - literal interpretation - Civil Liability Act 2002 (NSW) s 15C - Interpretation Act 1987 (NSW) ss 33, 34 - Superannuation Guarantee (Administration) Act 1992 (Cth)

Civil Liability Act 2002 (NSW), ss 3B, 13, 15C Civil Procedure Act 2005 (NSW), s 56 LEGISLATION CITED: District Court Act 1973 (NSW), s 127 Interpretation Act 1987 (NSW), ss 33, 34 Motor Accidents Compensation Act 1999 (NSW), ss 3, 126, 128, Ch 5 Supreme Court Act 1970 (NSW), ss 46A, 75A, 105, 106, 107

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 244 ALR 257 Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No. 2) [2001] NSWCA 450 Gordon v Ross [2006] NSWCA 157 at [81] Harrison v Melhem (No 1) [2006] NSWSC 1258 Harrison v Melhem [2008] NSWCA 67 Jongen v CSR Ltd [1992] Aust Torts Rep 81-192 (WASC) Kallouf v Middis [2008] NSWCA 61 Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375 Macarthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145; 41 MVR 235 CASES CITED: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Nominal Defendant v Lane [2004] NSWCA 405 Penrith City Council v Parks [2004] NSWCA 201 Rabay v Bristow [2005] NSWCA 199 Roads and Traffic Authority of NSW v Chandler [2008] NSWCA 64 Roads and Traffic Authority v Cremona [2001] NSWCA 338; 35 MVR 190 Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 11 Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134 260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96 Warren v Coombes [1979] HCA 9; 142 CLR 531 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106

TEXTS CITED: H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.20] Review of the Law of Negligence, Final Report, September 2002, pars 13.128-13.133

Alex NAJDOVSKI (Appellant) PARTIES: Antonio CRNOJLOVIC (First Respondent) Rebecca CRNOJLOVIC (Second Respondent)

COUNSEL: D R Campbell SC/D R Toomey (Appellant) M A Elkaim SC (Respondents)

SOLICITORS: Russell McLelland Brown, Wollongong (Appellant) Moray & Agnew, Sydney (Respondents)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40393/06 DC 176/04

ALLSOP P BASTEN JA WINDEYER J

1 August 2008 Alex NAJDOVSKI v Antonio CRNOJLOVIC & Anor Headnote

On 9 January 2001, the appellant, Mr Najdovski, suffered a severe head injury and other physical injuries when a motor vehicle, which was driven by the respondent, Mr Crnojlovic, and in which he was a passenger, collided with two parked vehicles.

The matter was heard in the District Court at Wollongong in December 2005. On 9 June 2006, Delaney DCJ gave judgment in favour of the appellant in an amount of $687,554. The appellant appealed to the Court of Appeal on the issue of damages. The appeal was initially heard by two judges, Basten JA and Windeyer J, because there was apparently no disputed question of legal principle: Supreme Court Act 1970 (NSW) s 46A. During argument, a question of legal principle arose relating to the proper construction of s 15C of the Civil Liability Act 2002 (NSW). With the parties' agreement, the matter was reheard on the papers by three judges, being those initially assigned and Allsop P.

(i) whether the Court of Appeal could reassess damages or whether the matter should be remitted to the District Court;

(ii) whether the trial judge erred in his assessment of lost superannuation entitlements; and

(iii) whether the trial judge's assessment of damages for economic loss and attendant care services was adequate.

In relation to (i) (per Basten JA, Allsop P and Windeyer J agreeing)

The Court should not remit the matter to the District Court for a further hearing because the expert evidence was written, no witness was called for cross-examination and the trial judge accepted the evidence of the appellant, his mother, his father and an uncle as largely credible and reliable: [4], [15], [103]. Moreover, limited weight should be given to impressions created by a witness in the witness box: [4], [16], [103].

It is appropriate for the Court to reassess damages, to the extent that error is established: [4], [17], [103].

In relation to (ii) (per Basten JA, Allsop P agreeing)

Section 15C of the Civil Liability Act allows for the calculation of superannuation contributions by taking 9 per cent of gross ordinary time earnings which are treated as the value of lost earning capacity, in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth): [4], [53], [58]. Roads and Traffic Authority v Cremona [2001] NSWCA 338; 35 MVR 190; Jongen v CSR Ltd [1992] Aust Torts Rep ¶81-192 (WASC), considered.

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384; Harrison v Melhem [2008] NSWCA 67; Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134; Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106, referred to.

The trial judge's allowance for superannuation was erroneously low, when calculated according to the figures he accepted: [4], [82].

Section 15C requires that superannuation entitlements payable for deprivation or impairment of earning capacity must be based on net earnings; accordingly, superannuation losses must be calculated by applying 9% to net earnings: [104]-[106]. Harrison v Melham (No 1) [2006] NSWSC 1258, referred to.

In relation to (iii) (per Basten JA, Allsop P and Windeyer J agreeing)

The trial judge did not adequately assess damages for economic loss and attendant care services because he failed to consider evidence that was relevant and material to the assessment of these damages. The Court reassessed these heads of damages: [4], [60]-[64], [65], [73], [77], [80]-[81], [86]-[88], [91], [93], [103]. Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Gordon v Ross [2006] NSWCA 157; 260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96; Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 11; Whalan v Kogarah Municipal Council [2007] NSWCA 5, referred to.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40393/06 DC 176/04

ALLSOP P BASTEN JA WINDEYER J

1 August 2008 Alex NAJDOVSKI v Antonio CRNOJLOVIC & Anor Judgment 1 ALLSOP P: This appeal was heard initially by a bench comprised of Basten JA and Windeyer J (sitting as an Additional Judge of Appeal), after the Chief Justice made a direction under the Supreme Court Act 1970 (NSW), s46A. That direction was made upon the basis that there was no disputed question of general principle. During argument it became evident that a question of the proper construction of the Civil Liability Act 2002 (NSW), s15C arose. After the matter was reserved, it became evident that Basten JA and Windeyer J did not agree on the proper construction of s15C. The parties upon being notified of this agreed that the matter should be reheard and determined by the Court of Appeal constituted by such three judges as I, as President of the Court of Appeal, directed. The parties also agreed that further oral or written argument was not required and that the matter could be reheard on the papers. 2 I directed that the Judges to rehear the appeal would be myself, Basten JA and Windeyer J as an additional Judge of Appeal. 3 These are my reasons on the rehearing. 4 I have had the advantage of reading the reasons for judgment of Basten JA and Windeyer J. I agree with the orders proposed by Basten JA for the reasons given by his Honour. 5 BASTEN JA: In January 2001 the appellant, Mr Alex Najdovski, was a passenger in a motor vehicle being driven by the defendant in Albion Park, south of Wollongong. The vehicle collided with two parked vehicles, with the result that the appellant suffered a significant head injury and other physical injuries, particularly in the neck and back. 6 The matter was heard in the District Court at Wollongong in December 2005. The defendant admitted liability but alleged contributory negligence on the part of the appellant. That issue was resolved against the defendant at trial and there is no challenge to that finding. On 9 June 2006 Delaney DCJ gave judgment in favour of the appellant in an amount of $687,554. The appeal was limited to a challenge to the adequacy of the damages. 7 The appellant asserted that the amount awarded was manifestly inadequate. At the forefront of his challenge was the inadequacy of the reasons given by his Honour in respect of significant items of loss. The primary orders sought were that the appeal be allowed and that the matter be remitted to the District Court for reassessment of damages. In the alternative, the appellant accepted that this Court, if not inclined to remit the matter, could reassess damages itself. 8 Because, as explained below, the reasons given by the trial judge were in some respects opaque and in other respects revealed error, it will be necessary for this Court to intervene. It is therefore convenient to determine at the outset the nature of the inquiry which should be conducted by the Court. Jurisdiction and powers of Court 9 The appellant's right of appeal is derived from s 127 of the District Court Act 1973 (NSW). No leave is required so long as the appeal involves a matter at issue to the value of $100,000 or more. Where the appeal is against the adequacy of an award of damages, an appeal lies as of right if the appellant has a realistic prospect of increasing the amount by the prescribed figure: see Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No. 2) [2001] NSWCA 450 at [9]-[12] (Priestley JA and Sperling J). Although the solicitor's affidavit filed in support of the appeal wrongly relied upon the amount of the judgment, rather than the amount of the increase sought, it was nevertheless reasonable to conclude that the amount in issue exceeded the prescribed figure. Accordingly the appeal lay as of right. 10 In considering whether, error being established, the matter should be remitted, counsel for the appellant contended that the correct approach was governed by the criteria identified in s 107 of the Supreme Court Act 1970 (NSW). That section states when the Court may assess damages itself and, for that purpose, draw inferences and make findings of fact. The appellant submitted that the stated criteria were not fulfilled and accordingly the Court should not proceed to reassess damages. 11 However, s 107 has no operation in the present case. The application of ss 106 and 107 is identified in s 105, which is limited to an appeal to this Court where the appellant seeks (relevantly) the setting aside of an assessment, after a trial with a jury in the District Court. This case did not involve a trial with a jury and hence neither s 106 nor s 107 operates. 12 In an appeal from the District Court other than one covered by s 105, the powers of the Court are identified in s 75A of the Supreme Court Act: for the exclusion, see sub-s 75A(2) which largely mirrors s 105: see Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375 at [68]. Pursuant to that provision, the appeal is one by way of rehearing and the Court has conferred upon it the powers of the Court below: see sub-ss (6) and (10). On special grounds, the Court may receive further evidence: see sub-ss (7) and (8). In these circumstances, the Court has a duty to reconsider the evidence, where error is demonstrated, and determine the correct orders and judgment for itself. Such an obligation is confirmed by s 56 of the Civil Procedure Act 2005 (NSW) requiring the Court to give effect to the "overriding purpose" of facilitating the "just, quick and cheap resolution of the real issues in the proceedings". That purpose will not be affected by remitting a matter for a further trial (and possible subsequent appeal), where it is properly open to this Court to dispose of the matter under s 75A. 13 The appellant resisted this conclusion on the basis that where the reasons given by the trial judge were so inadequate as to prevent a fair assessment of the errors made in the Court below, the trial should be treated as ineffective. The appellant contended that he would be denied procedural fairness if the matter were not remitted so that he could enjoy the benefit of a fair trial, followed by such statutory rights of appeal as might be available to him. 14 That submission should not be accepted. The statutory scheme evinces a clear intention that parties to a dispute have a right to have the dispute resolved by courts exercising the relevant jurisdiction. It cannot have been intended that the trial be free from error in all cases, or the appellate jurisdiction of this Court could never be exercised without a remitter. Nor is there any reason to suppose that the trial must be conducted free of specific kinds of error, unless those errors prevent this Court disposing of the matter properly on a rehearing. There will be errors of such a kind: one such error may arise where the cross-examination of a material witness, whose credibility is in issue, has been inappropriately cut short. Such a case will usually require a new trial. Similarly, cases where a trial judge has determined that the defendant was not liable and has failed to assess damages will often require a remitter, because the evidence given before the trial judge (assuming there was relevant oral evidence) may have required findings which could only properly be made by a judge who had heard the evidence. (It is for this reason that trial judges are encouraged to determine the quantum of damages, even in cases where liability has not, in their view, been established.) 15 The present case is not one in which this Court should hold its hand and remit the matter to the District Court. The expert evidence was all presented in written form, with no witness being called for cross-examination. Certain primary facts were established through the oral evidence of the appellant, his mother, father and an uncle. However, his mother was not cross-examined and the trial judge expressly accepted the evidence of the appellant and his father, stating that "both were reliable and credible witnesses": Judgment at [13]. The evidence of the uncle was not seriously challenged. In addition, the appellant took the trouble to put before this Court both the opening arguments of counsel at trial and the final submissions. 16 Whilst it is true that the Court has not seen the plaintiff in the witness box, there are dangers in a trial judge drawing conclusions from the impressions created by a witness, other than for the purpose of accepting or rejecting his evidence. Whether the appellant appeared personable, fit and mentally alert or otherwise, might affect an assessment of his employability, but limited weight should properly be given to such judgments. For example, the trial judge noted, in considering the need for on-going psychological or psychiatric treatment, that he had observed the plaintiff in the witness box and "did not detect any suggestion from him that he is now in any way significantly depressed", but accepted the evidence of a psychologist that he was: at [37]. In effect, his Honour discounted, quite properly, his own observations on a matter about which there was expert evidence providing the basis for a factual finding. 17 Accordingly, it is appropriate for this Court to reassess damages, to the extent that error is established. The matter should not be remitted for a further hearing in the District Court, in which issues of damage would necessarily be at large. Issues raised on appeal 18 The appellant made two major challenges to the assessment of damages. The first concerned economic loss, including both past and future economic loss together with the allowance for lost superannuation. The second concerned the valuation of attendant care services, both in relation to the past and in relation to the future. In each case, the inadequacy of the amounts awarded was said to flow from his Honour's failure to make a fair and proper assessment of the evidence of the appellant's incapacity and disabilities. 19 In addition, the appellant challenged the amounts allowed by his Honour for general damages and under a head known as "case management", but was content to rely at the hearing on his written submissions in relation to these matters. A further complaint in relation to the amount allowed for financial management expenses was abandoned. 20 To assess these matters, it will be necessary to consider both the approach adopted by his Honour in his judgment and the evidence before him, particularly that which was said not to have been taken into account properly. 21 Significant weight was given in the course of submissions to the complaint that his Honour had failed to give "proper reasons" for his various determinations. In his written submissions, the appellant made clear that the nature of his complaint was that the absence of findings in relation to particular matters and the failure to refer to evidence which would have been relevant and material to such findings demonstrated that the trial judge had erroneously overlooked or discarded such evidence: see Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130] (Hayne J); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [36] and [40] (Mason P, Ipp and Tobias JJA). Such a complaint, if made out, constitutes error because it demonstrates a failure on the part of a trial judge to carry out properly the judicial function of determining disputed issues on the basis of the facts and arguments presented at trial. At least in relation to an appeal by way of rehearing, such a complaint of inadequacy of reasons is largely immaterial: indeed, the complaint of substantive error gains its support from an acceptance that the reasons do reveal the evidence actually considered by the trial judge and the findings in fact made: see Gordon v Ross [2006] NSWCA 157 at [81]; 260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96 at [119]-[122] and Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 11 at [311]-[316]. 22 In other contexts, the adequacy of reasons becomes a slippery concept. Once primary facts have been found and relevant inferences drawn, the ultimate conclusion may depend upon an evaluative judgment which may not be amenable to precise justification. The constraints which apply to a review of such a judgment recognise that views may reasonably differ as to the appropriate result and that error will not be found if the result is within the appropriate range: see Warren v Coombes [1979] HCA 9; 142 CLR 531 at 552 (Gibbs ACJ, Jacobs and Murphy JJ) and Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 244 ALR 257 at [37]-[40] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). It may be that error is demonstrated in failing to reveal a process of reasoning where, although relevant and material facts have been found, the basis for the final conclusion remains impenetrable. There may be occasions in which such a result will demonstrate a failure to fulfil that part of the judicial function which requires revelation of the reasoning process, but more commonly such a case will be resolvable on the basis that the findings of fact are not as they appear or that there is otherwise an unrevealed error of principle. Case presented at trial 23 The accident in which the appellant was injured occurred on 9 January 2001, when he was 15 years of age. He suffered a severe head injury when the motor vehicle in the back seat of which he was travelling struck a stationary truck on the side of the road. 24 Prior to the injury he was about to commence Year 10 at Albion Park High School. He was working part-time at Woolworths. 25 Limited attention was paid, in the expert reports, the submissions and in the judgment, to the appellant's school achievements prior the accident, but there was no suggestion that he was not capable of undertaking an apprenticeship in carpentry or electronics, in which he had displayed interest, as explained by his father: Tcpt, 09/12/05, pp 76-77. The appellant gave evidence that he had been interested in carpentry and was hopeful of obtaining an apprenticeship at the end of Year 10: Tcpt, 07/12/05, p 8. This evidence was confirmed by his uncle, Mr Guimare: Tcpt, 13/12/05, p 143. 26 There was also uncontradicted evidence that he was a keen soccer player at school, had a strong build and played in the first division for his age and had been asked to train at that level with the local team in the national league: Tcpt, 09/12/05, p 78. This evidence was significant, not because it was suggested that he had lost a possible career as a professional soccer player, but because it supported his father's claim that he was fit and energetic prior to the accident. 27 The ambulance report noted that the appellant was semi-conscious when attended at the scene of the accident, with closed head injuries and abrasions to the left-hand side of his head, neck and lower leg. He was also noted to have been irritable en route to hospital. 28 After initial treatment at Wollongong Hospital, he was removed by air ambulance to the Children's Hospital at Westmead, where he was admitted to the intensive care unit. He was discharged to the ward on 11 January 2001, although he remained in post-traumatic amnesia until 20 January. 29 There was no dispute that the appellant's head injuries have left him with a degree of permanent impairment, which will be addressed further below. The discharge summary prepared by Dr Maria Kyriagis, Paediatric Rehabilitation Fellow, also noted that, in terms of mobility, the appellant was weaker on the right side compared to the left. When he was transferred to the ward on 11 January he was unsafe walking independently and required the assistance or use of a wheelchair. He was discharged from hospital on 25 January 2001. 30 The difficulty in assessing the degree of his neurological impairment is apparent from a neuropsychological assessment prepared by psychologists at the Children's Hospital after an interview on 28 March 2001. The authors noted (at p 2) that: "Reports from Alex's class teacher indicated long standing academic difficulties, particularly in the areas of literacy, maths and science. His reading was reported to be poor, with limited phonic understanding. He was said to have poor concentration and be easily distractable. A school report from 1999 indicated average to low average academic performance. Alex was described as a courteous student but lacking in effort and application."

The report was otherwise uninformative in relation to the degree of accident-related disability. 31 In terms of his social skills, his mother (who was not cross-examined) stated (at par 3) that before the accident he was "an enthusiastic sports man who particularly enjoyed soccer and had ambitions to be a professional player. He was an even tempered teenager and was not prone to mood swings. He was an average student who could have tried harder. However, there were no problems with his attendance at school and he was never in any trouble with his teachers…. Socially, Alex was a well adapted young man who had a lot of friends." 32 Mrs Najdovski described the situation after the accident in the following terms (at pars 5-7): "He is prone to lose his temper very quickly. He has massive mood swings and can experience many moods in the same day. Before his accident, I could leave my daughter, Angel, in Alex's care while I went to work. I could trust her in Alex's care with no concerns. Since his accident, I have been reluctant to leave Angel and Chad with Alex. Very often and for no apparent reason, Alex loses his temper with them. He starts screaming at them and will usually take off into his room. … Alex's behaviour towards me has also changed. I get the feeling that Alex no longer respects me. He screams at me nearly every day …. Since the accident, Alex spends most of his time in his room sleeping or on the computer. He would spend all day in there if I let him." 33 His mother said that he was easily distractable and needed help looking after himself. In relation to his physical condition, she stated at pars 15-17: "Alex's physical state has also changed as a result of the accident. Before the accident, he was a very solid, fit young man. … He is now very skinny and has lost a lot of strength. One major change in Alex's major physical appearance has been to his eyes. … Since Alex came out of the coma, I have noticed that his eyes have been dull and he looks sort of dazed. His eyes have not changed since this time. Alex's speech has also been affected as a result of his injuries. At times he can be difficult to understand, especially when he is angry or excited." 34 A report prepared for the defendant's insurer by Dr Mary-Clare Waugh, Staff Specialist in Paediatric Rehabilitation Medicine at the Children's Hospital, dated 20 November 2001, stated (at p 1): "Alex was discharged from hospital on 25-1-01 and at this stage he had difficulties with fatigue, poor balance, difficulties with his memory, neck pain and some mild right sided weakness. Alex had an occipital pressure area as a complication of his management in [the intensive care unit]. 35 Dr Waugh noted that the appellant had had a neuropsychological assessment on 28 March 2001 and that reported changes since the accident "included fatigue, word finding difficulties, poor memory and some mood alterations". The report continued: "Alex was reviewed in the Brain Injury Clinic on 10-10-01 and at this time he reported that he has less fatigue and has only had a couple of headaches since discharge. Occasionally he has postural hypotension resulting in dizziness. He reports that he is easily frustrated by school performance difficulties and being restricted with his physical activities. … He continues to note difficulties with his memory. Alex also reported pain in his lower back and a tender lower lumbar spine. … Stretching seems to increase the pain and resting helps. In addition Alex complains of pain in his neck …. Both of these back and neck pain problems have emerged since his accident." 36 On 13 November 2002 Dr Waugh prepared a further report noting that the headaches and fatigue by then provided "minimal problems": at p 1. She also noted that the appellant was "interested in car mechanics or being a carpenter". He reported in October 2001 that physiotherapy had improved his neck and back pain, but in November 2002 he reported a recurrence of neck pain and lower back pain. Dr Waugh noted that the appellant's local doctor was considering a review by a psychiatrist to investigate the appellant's "personality changes since the accident". Dr Waugh stated: "In conjunction with a psychological assessment a repeat neuropsychological assessment of his cognitive and thinking abilities would also be appropriate." 37 She noted that he was playing soccer but under pressure his motor coordination skills had deteriorated and he had difficulty with anger control, which "led him to be an easy target and resulted in fights". Other physical problems appeared to be improving. 38 In July 2004 the appellant attended a clinical psychologist, Peter J Rawling, for a neuropsychological assessment. In a report dated 2 August 2004, Mr Rawling said (at p 5): "The results of the current neuropsychological assessment, now over three years post injury, were very similar to those returned at initial assessment. Again, a weakness was evident in reading and language based skills but he demonstrated average or better ability on tests of non-verbal intelligence, memory and executive functioning. His working memory span was maintained but there was clear evidence of a persistent slowing in the rate of information processing and divided attention. Given the severity of the head injury, such attentional deficits were only to be expected. It was noted that Dr O'Neill has assessed the whole person impairment in terms of a mental status impairment of 14%. I would agree with this assessment of the mental status impairment but I suspect that the behavioural changes secondary to his frontal lobe damage represents the more significant source of disability. He had lost a great deal of his former drive and though bored and unhappy with his life style, he had made no effort to change it. He became depressed and had admitted to his father that he had thought of suicide. His irritability on the football field made it impossible for him to continue in the game. On the basis of these behavioural changes, I considered him to have an Emotional and Behavioural Impairment in the 15-29% range - 'Moderate limitation of some but not all social and interpersonal daily living functions'. I would assess his impairment as being at the middle of this range - ie 22%." 39 In September 2005, the appellant saw a clinical and consulting psychologist, Dr Steven Dragutinovich. In a report dated 24 September 2005, he stated, under the heading "Prognoses" (at p 15): "The clinical prognosis for further cognitive recovery from neurotrauma is poor as Alex is now well over the 2 year period during which time it is generally considered that recovery from neurotrauma plateaus. Treatment is aimed at limiting the adverse effect of Alex's neurotrauma related behaviours which, along with the stabilising influence of living with his parents and family, will assist Alex in the immediate foreseeable future. When Alex leaves home, however, and is away from the external structure, routine and stability provided by family, the likelihood is that, unless he has an understanding partner and employer, problems will occur as he interacts with others. The danger is that Alex will drift to the periphery of society, become marginalised, and increasingly feel outcast, particularly if he does not obtain further sources of external stability in the form of work which, in my opinion, he may be able to get but will experience significant difficulty in keeping. For this reason the realistic vocational prognosis is guarded." 40 In August 2004, the appellant saw Professor Peter Disler, a consultant physician and Professor of Rehabilitation Medicine at the University of Melbourne. Professor Disler expressed concern at the lack of progress but noted that progress in rehabilitation was "going to be challenging": Report, 10 August 2004, p 12. He noted that the appellant presented as a "very thin young fellow" and that his father had drawn attention to the fact that he was "previously well built and fit, but had lost a lot of weight since the accident": Report, p 9. 41 In August 2005 the appellant obtained a detailed and thorough report from Ms Lauren Alach, an occupational therapist. Many of her recommendations, which were detailed and specific, related to possible requirements for assistance otherwise than in relation to employment. However, particular matters related to his physical circumstances, cognitive status and future employment. 42 In relation to his physical status, Ms Alach reported: "4.3 … His residual physical problems include pain in his neck, back and left knee and weakness on the right side of his body. This affects his performance of repetitive daily living and work tasks and has limited his return to soccer. 4.4 I agree with Professor Disler's recommendation that a strengthening program is essential for Mr Najdovski due to his postural asymmetry resulting from right sided weakness and left knee pain which aggravates his neck and back during strenuous activities. … 4.9 His current physical problems are likely to impact on his return to his chosen employment options. The impact of these limitations should reduce following implementation of a physical program." 43 There was some difference in the evidence as to the reasons for the appellant discontinuing soccer. The appellant expressed the view that he now had "two left feet" (presumably being his non-dominant side), whereas his father was clear that he stopped him playing because of his irritability and lack of anger control on the field. The two may, of course, be related. 44 In relation to "cognitive status", Ms Alach reached the following conclusions: "5.8 Although Mr Najdovski continues to experience some problems with his working memory and concentration, he is starting to compensate for deficits and his performance is sufficient to enable him to perform practical work and leisure tasks." 45 In relation to future employment, she expressed the view that before considering employment in a physical trade such as carpentry, he should embark on the fitness and strengthening program previously outlined. She also stated that he appeared "very eager and motivated to undertake this program to assist his return to work": Report, 26 August 2005, par 13.8. She agreed with Professor Disler that a "vocational rehabilitation program" was essential to allow the appellant to find appropriate employment and concluded that he was "likely to require a more intensive and closely monitored program than [that] previously provided" by the Commonwealth Rehabilitation Service: at par 13.9. She continued at pars 13.10-13.11: "He has demonstrated the ability to operate tools and perform the physical components of carpentry tasks. Should he continue to experience back, neck and knee pain from constant work, he may need to reconsider his working hours, working three to four days a week or fewer hours each day to manage his pain. These options may not be available during a carpentry apprenticeship. Once he completes an apprenticeship, however he would be better able to control his hours if he starts his own business as he has expressed a desire to do. The impact of his cognitive deficits on his ability to set up and manage a business would need to be considered." Economic loss: principles of assessment 46 The general law principles in relation to the assessment of damages in motor accident cases are subject to the operation of Chapter 5 of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act") and those provisions of the Civil Liability Act 2002 (NSW) identified in s 3B(2). So far as the latter Act is concerned, the only relevant provision was s 15C, relating to loss of superannuation entitlements, to which further reference will be made below. (a) Future economic loss 47 In relation to the MAC Act, the principal section of present relevance is s 126, which provides: " 126 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages, it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 48 This language is reflected in s 13 of the Civil Liability Act, a provision which has been considered in a number of cases in this Court: see, eg, Macarthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145; 41 MVR 235; Penrith City Council v Parks [2004] NSWCA 201; Nominal Defendant v Lane [2004] NSWCA 405; Kallouf v Middis [2008] NSWCA 61 and Roads and Traffic Authority of NSW v Chandler [2008] NSWCA 64. 49 Two factors should be noted for present purposes. First, s 126 does not apply to the assessment of past economic loss. Secondly, the percentage adjustment for events which "might have occurred but for the injury" may take into account not merely the normal vicissitudes of life, but also the chance that the most likely future circumstances would not have occurred, as assessed in accordance with the principles established in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638: see Chandler at [56]-[57]. (b) Attendant care services 50 The assessment of damages for attendant care services, both past and future, are to be governed by s 128 of the MAC Act. Section 128(3) provides a threshold, below which no compensation can be awarded for attendant care services. The threshold is calculated by reference to the number of hours per week and the period over which the services are provided. The appellant argued that his Honour was in error in failing to calculate the amount on account of services by reference to a specified number of hours per week over a specified period. The respondent argued that once the threshold had been satisfied (which was not in issue) it was a matter for the trial judge to assess compensation as he saw fit. Thus, it was open to the trial judge to identify a global amount without reference to a particular hourly rate or a particular number of hours. 51 In principle, it may be that such a calculation is permissible. However, sub-ss 128(4)-(6) impose a prima facie cap on the amount of compensation, the cap being ascertained by reference to average weekly earnings. Where the services are provided at less than 40 hours per week, the amount must be calculated at an hourly rate: sub-s (5). Accordingly, it seems likely that the respondent could insist on an hourly rate calculation in order to ensure that the cap was not exceeded. However, if the cap is not in issue, the basis of calculation is not otherwise constrained by the statute. In practice, it gives guidance as to reasonable rates of payment for such services. (c) Superannuation loss 52 The third question which arose as a matter of construction concerned the calculation of lost superannuation entitlements, pursuant to s 15C of the Civil Liability Act. That section states: " 15C Damages for lost superannuation entitlements (1) The maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this Part) for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based. (2) The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions." 53 It has generally been assumed that the calculation required takes as the "relevant percentage" the figure specified in the Superannuation Guarantee (Administration) Act 1992 (Cth) which has, since the 2002/2003 tax year, been 9% of the employee's gross ordinary time earnings: see Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106 at [72] (Campbell JA). (For ease of calculation, and because damages are assessed by reference to earnings net of tax, the calculation is sometimes undertaken on the basis of 11% of net earnings.) 54 The respondent contends, correctly, that the relevant percentage is therefore 9%. However, he notes that the damages payable for deprivation or impairment of earning capacity must be based on net earnings and, accordingly, the cap on superannuation losses must be calculated by applying 9% to net earnings. 55 Read literally, the section undoubtedly bears that construction. If the section were intended to provide an arbitrary cap, that reading might be appropriate. If, on the other hand, the section is merely intended to provide a mechanism for calculation of an otherwise uncapped amount, the literal construction is inappropriate. 56 To determine the purpose of s 15C, it may be permissible to consider its legislative history: see Interpretation Act 1987 (NSW), ss 33 and 34; Harrison v Melhem [2008] NSWCA 67 at [172] (Mason P, Spigelman CJ, Beazley and Giles JJA agreeing); cf Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134 at [10]-[27]. In my view, the provision is ambiguous in the sense that it has two possible meanings and is obscure because it is unclear which meaning should apply. Accordingly it is legitimate to consider extrinsic material which is capable of assisting in ascertaining the meaning of the provision, pursuant to s 34. That approach is also available under general law principles, without the need to identify ambiguity: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 57 Such assistance may be derived from the Final Report of the Review of the Law of Negligence, published in September 2002 ("The Ipp Report"). The Report dealt with the calculation of loss of superannuation benefits at pars 13.128-13.133. The recommendation made in the Report (recommendation 58) is clearly reflected in the present form of s 15C. However, the concern of the Committee was to reconcile the differing approaches to such a calculation revealed in Roads and Traffic Authority v Cremona [2001] NSWCA 338; 35 MVR 190 and Jongen v CSR Ltd [1992] Aust Torts Rep ¶81-192 (WASC). In Cremona, this Court calculated the relevant loss by reference not merely to the employer contributions, but also to income and capital growth which those contributions would have generated in a superannuation fund. That approach was rejected in the Report. The alternative approach adopted by Anderson J in Jongen was considered preferable but was also thought to be "undesirably complex": at par 13.132. Although not disclosed by the Report, the basis of the rejection appears to be that Anderson J considered that the taxation at a concessional rate of contributions to the fund should also be taken into account: see generally Zorom at [64]-[65]. The purpose of the recommendation of the Report was to "bring about certainty, simplify matters and reduce costs": at par 13.133. As a result, "[s]ophisticated calculations by accountants and actuaries would be rendered unnecessary, opportunities for disagreement between the parties would be reduced, and out-of-court settlements of claims would be facilitated": par 13.133. It is therefore clear that the purpose of s 15C, as envisaged in the Ipp Report, was to simplify calculations and not to impose an arbitrary cap on the amount allowed by way of superannuation entitlements. 58 The ambiguity of purpose may thus be resolved by rejecting the literal interpretation proposed by the respondent and allowing the calculation of superannuation contributions to be made by taking the relevant percentage of gross ordinary time earnings which are treated as the value of lost earning capacity. Assessment of loss (a) Past economic loss 59 It is convenient to commence with the calculation of past economic loss. As the case was presented at trial, it was known that the appellant had continued to the end of Year 10 and was thus unlikely to have entered the workforce until the beginning of 2002. On the basis that he would obtain an apprenticeship as a carpenter, his loss was calculated on a scale commencing at $10,964 for the 2002 year and moving to $19,654 for the 2005 year, giving a total claim of $61,273. Having noted the amounts claimed, his Honour reached the following conclusion (Judgment at p 9): "The manner in which he would have entered the workforce either as an apprentice or a young person seeking to gain experience in the construction industry suggests that the predictions of his past loss are over estimated, especially for the years 2002 and 2003. In my opinion, his past loss is a matter of speculation not capable of precise assessment and I propose to allow a global figure of $30,000 for the loss of opportunity to work as a labourer or apprentice during that time." 60 As Malec recognised, any assessment of a past hypothetical proposition must be speculative to a degree. However, there was evidence before his Honour that, prior to the accident, the appellant was committed to commencing such a career, that he had shown genuine aptitude as either a carpenter or a mechanic, that he had sought and obtained part-time work whilst in Year 9 at school, and that he was energetic and fit. There were in substance two bases upon which he could have discounted the possibility that the appellant would obtain an apprenticeship immediately after leaving school. The first was that apprenticeships were hard to come by and the second that young people may be inclined to change their minds or abandon a career once embarked upon for reasons which are not readily foreseeable. However, the figure chosen by his Honour meant that the appellant would not have commenced his apprenticeship for approximately two years after leaving school and would not have obtained alternative (and probably better remunerated) employment in the meantime. In the absence of any evidence as to the unemployment rates in the Illawarra area or the paucity of apprenticeships available in those years, such a heavy discount was unjustified. 61 There was no suggestion that his Honour considered there had been a failure to mitigate the appellant's loss. Had such an issue been raised it would have been necessary for the defendant to establish the facts on which such a finding might be based. That exercise was not attempted. Rather, there was evidence that the appellant had obtained two placements on a trial basis. The first ran for three weeks; the second lasted only a week: in each case the appellant abandoned the placement due to cramps and back pain. It was not suggested that these failures derived otherwise than from a combination of physical and behavioural changes consequent upon the accident. 62 Such evidence as there was in relation to the labour market in the Illawarra supported the view that the Illawarra had an unemployment rate higher than the State average for March 2003, but suggested that employers in the building industry might well take on a young man in the position of the appellant and, if he proved successful, put him on as an apprentice after a few months employment. The Labour Market Analysis Report, prepared by a rehabilitation counsellor in May 2003, noted that the overall size of the building industry by reference to occupation was "large" with workers under 25 years holding about 93% of jobs and teenagers holding 51% of jobs: Report, 15 May 2003, p 2. The counsellor noted: "Only one position was advertised on the Internet vacancy sites over a three-week period however following contact with labour hire companies … and various employers it was concluded that there is currently a demand for Apprentice Carpenters and Trade Assistants. The demand however tends to be very unstable declining rapidly during downturns in the building industry. The potential for new jobs is average and the recruitment of apprentices should continue at close to present levels for that reason."

The report noted that the average weekly earnings for a full-time apprentice carpenter aged 15-19 was $302. 63 Taking all of this material into account, I would assess the past economic loss as 75% of that claimed. The discount of 25% allows for the fact that it may have taken some months to obtain a first position and the possibility that, if that position did not work out, there would be a further delay in obtaining subsequent employment. Any such delay at the outset would be reflected in delay in reaching the higher levels of remuneration, arising in year 4 of an apprenticeship and thus the allowance does not equate with one year's unemployment, but a period of some nine months. The appellant had remained at home until the date of the trial, without obtaining social security benefits and without making a claim for possible benefits during a period of unemployment. Accordingly, an appropriate amount for economic loss to the date of hearing would have been $46,000. 64 There remained a period of six months to the date of judgment in the trial court for which no allowance appears to have been made in his Honour's calculation. On the assumption that the appellant would continue to have been employed for a further 26 weeks at $378 per week should be allowed, but subject to a discount of 25%, giving an amount (in round figures) of $7,400. The total of past economic loss should therefore be $53,400, calculated to the date of judgment in the District Court. (b) Future economic loss 65 In reaching an assessment of future economic loss, his Honour expressly adverted to the requirement to comply with s 126 of the MAC Act. He identified the first assumption as being that "uninjured he would have worked in some form of construction industry or labouring job on a full or part-time basis through to age 65": at p 9. At that point, however, the reasons became opaque. He expressed a further assumption that "because of his disabilities he will have difficulty obtaining or retaining such employment". Unfortunately, that description of the relevant assumption is so vague as to be unhelpful. In an earlier passage, his Honour had identified the effect of the accident on the appellant's earning capacity in the following terms: "34. I am satisfied that his reduced working capacity has been caused by the discrete brain damage he suffered. I accept his father's evidence about his behaviour, both at home and on social occasions. I accept that he has problems with mood swings, erratic behaviour, an inability to organise, remember and concentrate. I am satisfied that these deficits affect his capacity for employment and will prevent him from being continuously employed in the workplace in the future. 35. This does not mean that he does not have any residual earning capacity, but that capacity is slight indeed. Even though he is physically capable he cannot properly turn his mind to the issues he is required to address in daily life." 66 The appellant's case was that he had no residual earning capacity capable of exploitation but that, accepting his Honour's initial assessment, it cannot have been more than 10-15% in order to be described as "slight indeed". 67 At trial, there was some ambiguity as to the basis upon which the assessment of future economic loss should be undertaken. In the amended particulars filed on 27 October 2005, shortly before the hearing, the appellant assessed his loss of earning capacity by reference to the net weekly earnings of a qualified carpenter. These earnings varied according to five year blocks, between the ages of 20 and 65, peaking in the 30-34 year age group, but averaging $662 per week. From 45 to 65, the figure was $641 per week. Taking the former figure, the net annual income was, on average, approximately $34,450. 68 In opening, counsel for the plaintiff referred to a claim based on an average net weekly figure of $850 "as a tradesman": Tcpt, 07/12/05, pp10-11. In final submissions, counsel stated that average weekly earnings, after tax, amounted to $880. That figure was reiterated more than once: Tcpt, 16/12/05, p 38. Counsel for the defendant at trial appears to have eschewed any comment on these figures. 69 The approach taken at trial may have given rise to some confusion in his Honour's mind. When he came to assess future economic loss, having made the assumptions noted above, he stated at p 9: "I am satisfied that his lost capacity should be assessed at $400 net per week, noting the average weekly wage net of $668 per week on the Bureau of Census and Statistics figures." 70 On the appeal, the appellant contended that the basis of this calculation was simply obscure, that his Honour had made a mistake, but that the precise nature of the mistake could not be explained. Counsel for the respondent suggested that the figure of $668 per week was probably close to the net average weekly earnings for a carpenter as identified in a forensic accountant's report tendered on behalf of the appellant, prepared by Mr Sak S (Vincent) Siow of Evidex. This is a possible explanation, although the precise figure does not appear in that report and his Honour identified the source as the Bureau of Census and Statistics, which was not the source relied upon by Mr Siow. 71 Taking his Honour's figures, he seems to have assessed a loss of earning capacity at 60%; it follows that he considered the appellant had a residual earning capacity of 40%. It is, according to the appellant, impossible to describe such an assessment as consistent with the description of his residual earning capacity as "slight indeed". 72 If, on the other hand, his Honour did intend to refer to an average weekly wage (the agreed figure as at the date of hearing being $880 per week), his assessment of lost capacity would reduce to approximately 45%. That would be so out of kilter with his Honour's earlier description of the residual earning capacity as to be implausible. 73 Finally, having reached a figure for $323,136 for loss of future earning capacity, his Honour then allowed an amount for superannuation at $25,000. Given that there was no calculation of gross figures in the judgment, one would have expected an allowance for superannuation at 11% of the total net loss of earnings. On his Honour's calculations, past and future lost earnings totalled $353,136. Eleven percent of that figure would have been $38,845. The respondent did not seek to explain this calculation. 74 In considering the extent to which the appellant retained a residual earning capacity, the respondent accepted that it bore an evidentiary onus to adduce evidence of that which the appellant was capable of undertaking and what jobs might be open to him: see Rabay v Bristow [2005] NSWCA 199 at [73] (McColl JA, Handley and Bryson JJA agreeing), referring to H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.20]. Counsel for the respondent submitted that the onus had been satisfied by tendering evidence from a clinical psychologist, Mr Dino Cipriani, and by obtaining a number of reports from experts at the Vocational Capacity Centre outlining occupations for which, with or without formal training as appropriate, the appellant would be suitable. 75 Mr Cipriani appears to have had a gloomier view than others of the appellant's school history prior to the accident, although that is not relied upon for present purposes and is not entirely consistent with his "current high-average Performance IQ and above average visual memory": Report, 9 April 2003, par 14.3. Otherwise, Mr Cipriani largely acknowledged the physical, cognitive and behavioural problems others had identified as resulting from the accident. In identifying possible vocational opportunities for the appellant, he did not expressly take any of these disabilities into account, other than to note that the appellant "may require some assistance to find suitable work": at par 14.3. A subsequent report by Mr Cipriani dated 18 January 2005 reviewed in detail the various reports obtained on behalf of the appellant, but apart from treating some of Ms Alach's recommendations as excessive and overly interventionist, did not carry matters much further. The Vocational Capacity Centre also provided a medical assessment report, prepared by Dr Seamus Dalton, a consultant in rehabilitation medicine, dated 29 July 2004. Dr Dalton expressed concern at the physical degeneration and "deconditioned state, poor flexibility and lack of lumbo-pelvic stability" (at p 4) and continued: "It is my opinion that his current back pain and mild left knee symptoms are the result of his inactivity and deconditioning. It is likely that he has been poorly motivated and this has probably compromised his physical recovery. The extent to which his cognitive dysfunction has affected his motivation as opposed to his premorbid intellectual function or any underlying behavioural problems is unclear." 76 Dr Dalton considered that his condition had stabilized and that his capacity for work would improve with a suitable exercise program, which would address his physical complaints. However, there was no evidence to suggest any premorbid cognitive dysfunction affecting motivation nor any "underlying behavioural problems". Broadly speaking, the defendant's reports did not, read as whole, address the unequivocal evidence, based on descriptions of the appellant prior to the accident and his condition thereafter, that his loss of motivation and difficulties in remaining focused were integrally related to his physical condition and the implausibility of any extended period of stable employment. 77 Against all the attempts by experts to explain his degree of vocational capacity, there remains the objective fact that he was without employment from the time he left school at the end of 2001 until the trial at the end of 2005. Ms Alach's report suggested that more intensive assistance would be required to help him obtain employment, but that, if his physical conditions improved, future work trials might prove more positive with a more promising outcome. Nevertheless, the case at trial was undoubtedly one in which predictions as to future improvement remained guarded. It is clear that there is some residual earning capacity, but one could not be satisfied on the evidence that it should be valued at $400 per week. 78 In a report dated 26 August 2004, which was apparently not updated prior to trial, the Vocational Capacity Centre presented the following market rates for occupations said to be within the appellant's physical and intellectual capabilities without formal training: Wood processing machine operator $362.00 Service station attendant $295.00 Motor vehicle parts and accessories fitter $268.00 Sales assistant $300.00

With formal training the occupations were said to include:

Wood machinist A grade $441.00 Vehicle trimmer $430.00 Vehicle parts interpreter $450.00

79 Descriptions were provided of these various occupations, some of which required a degree of organisational skill, established work routines and co-ordination of functions with those of others which were not demonstrated as within the appellant's present capacities. Further, to adopt a residual earning capacity in an amount of approximately $300 per week net on the basis of these figures would not be consistent with the likelihood that the appellant would not maintain regular employment and would suffer significant periods of unemployment. I would reduce the calculation of residual earning capacity to $200 net per week. 80 Despite the fact that the case presented at trial included a claim for a loss of average weekly earnings, the evidence of the appellant, supported by his father and mother and supported by the statements he had made to various professionals, suggested, as the most likely future circumstances but for the injury, that he would have undertaken a carpenter's apprenticeship and obtained work as a carpenter. I am inclined to think that his Honour in fact obtained the net weekly wage of $668 on that basis, despite what was said in the judgment. I see no reason to depart from that figure as the figure relevant to the most likely occupation which the appellant would have pursued, absent the injury. Taking that figure, a residual earning capacity of $200 per week on average would constitute approximately 30% of the hypothesised full-time earning capacity. While I would not describe that as "slight indeed", I am inclined to think that that epithet was addressed to the possibility of continuous employment, in the context in which it was adopted. 81 Accordingly, I would assess his lost capacity at $468 per week ($668 per week less $200) which, after allowance for 15% for vicissitudes and adopting the 5% multiplier for 45 years, gives a round figure of $378,000. (c) Superannuation 82 For the purpose of calculating lost superannuation benefits, it is appropriate to add together the past and future lost wages and, accepting that those are net figures, allow 11% of the total for superannuation. That figure is to be calculated as 11% of $433,000, giving an amount of $47,630. As previously noted, the trial judge's allowance for superannuation was erroneously low, when calculated according to the figures he had accepted. The total figure for lost earning capacity is therefore $480,630. (d) Attendant care services 83 There remains the question as to the adequacy of the amounts allowed by the trial judge both for the past and future in relation to attendant care services, as defined in s 3 of the MAC Act. In relation to the past, his Honour allowed a figure of $10,000, without making clear the basis of calculation. According to the schedule provided by the appellant, the amount was calculated at the rate of $22.64 per hour, a rate with which the respondent did not take issue. If his Honour adopted that figure, a rough calculation would suggest an allowance of approximately 440 hours over a period of five years, or less than two hours per week. On the other hand, the respondent contended that the trial judge allowed a greater amount for the period up to June 2001, stating that he "requires now no domestic assistance": Judgment at p 9. The respondent contended that, having rejected Ms Alach's report on the basis that it "does not reflect the evidence of the plaintiff", the trial judge was left without expert assistance in assessing the appellant's needs for attendant care services. 84 His Honour's allowance for future domestic care was $27,225, calculated at the rate of four hours per month and $26.60 per hour. Again, the rate is accepted by the respondent and appears to have been the rate proposed at trial. Accordingly, the rate should be adopted. 85 The reference to the plaintiff's evidence appears to be to a passage of cross-examination where he was pressed as to his ability to look after himself, to cook (if he was told how to), to carry out domestic duties and to undertake work in the backyard and the garden: Tcpt, 07/12/05, pp 28-33. His Honour concluded that he "may require occasional assistance for handyman tasks and organisational matters but apart from this he is capable of looking after his daily tasks in the kitchen, bathroom and shopping, save for some financial issues for which I have otherwise made allowance": Judgment at p 10. 86 This summary appears to overlook the evidence of the appellant's mother, or to discount it entirely. Her statement was admitted without objection and the defendant did not seek to cross-examine her: Tcpt, 13/12/05, p 142. It therefore seems likely that his Honour simply overlooked her evidence. It may be that some of her account could be put down to changes caused by adolescence. However, that was not his mother's view and to establish that as an alternative explanation would have required cross-examination. Her evidence was particularly significant in relation to mood swings, distractability and disorganisation. She accepted that the appellant cleaned his own room, but otherwise said she did most things for him. As a working mother with other children, it seems unlikely that she did this out of choice, rather than because she felt unable to trust him to perform other activities. She provided an example of the appellant putting a pizza in the oven and forgetting about it so that the pizza was burned. She noted her anxiety that he might "one day burn down the house by forgetting to turn off an appliance": at par 20. 87 Her statement was dated 27 November 2005, and things might have improved by the date of trial. However, that was not put to her, nor was there any attempt in the cross-examination of the appellant to suggest significant change in recent months. 88 With respect, Ms Alach's report should not have been rejected on the basis of inconsistency with the plaintiff's evidence. It is more detailed in terms of household activities, giving consideration to meal preparation, shopping, cleaning, laundry, gardening, home maintenance and car maintenance. She confirmed that he did not require assistance with personal care tasks, "should be able to prepare simple meals and do regular grocery shopping" and was capable of "assisting with cleaning and laundry … gardening, home and car maintenance": Report, 26 August 2005, pars 9.4 and 9.8. None of that was inconsistent with the appellant's evidence. Ms Alach was of the view that he required assistance for heavy regular tasks in relation to maintenance and gardening, of which she gave examples: pars 9.9-9.11. This view was also consistent with the appellant's evidence and appears to have been accepted by his Honour. She also recommended that he needed a case manager to monitor his performance initially and to ensure he planned and prepared meals and organized his shopping: par 9.6. 89 Ms Alach made an assessment (at Appendix 1) of past care services provided from the date of accident to the date of her report. She assessed those as involving virtually full-time assistance from his mother during the two weeks in which he was in hospital and 17 hours per week for a period of some 43 weeks thereafter. Her assessment was that care reduced to five hours per week from 1 December 2001. That was also her assessment of the current level of care being provided, although that included what might be described as the work of a case manager in relation to the litigation. Her assessment of future needs, other than car cleaning and car maintenance, amounted to three hours per week, covering activities in the home, gardening and the assistance of a handyman. 90 Ms Alach also reported difficulties with communication, lack of motivation, mood and personality changes and the need for psychological support and counselling "at this stage", in order to "address issues with his mood and his sense of self worth and self esteem": Report, p 14. That element appears to have been covered by what she described as "emotional support and encouragement", "assisting with problem solving, decision making and memory performance", largely undertaken by his mother after his release from hospital: at Appendix 1. 91 It seems likely that there should be some reduction in the allowance for the period during which he was in hospital, as there was no evidence from his mother in relation to the services she provided. However, there was clear evidence supporting the provision of eight hours per week by way of attendant care services during 2001. This would provide an amount of $9,418 for that year at the accepted rate. Thereafter, an allowance of four hours per week to the date of judgment would appear to be reasonable and would total, for a period of 4.5 years, $21,190. Accordingly, in round figures, I would allow an amount of $30,600 for past attendant care services. 92 In relation to the future, there must be some doubt about whether such services will be needed indefinitely, so far as they are in response to the appellant's psychological condition. It is possible that he will achieve a degree of stability over the years if he receives the other forms of support which the experts recommended, including a vocational rehabilitation program, case management for assistance in life planning and occupational therapy. These elements were expressly supported, with explanation, by Mr Rawling, the clinical neuropsychologist, in his report of 22 September 2005. Further support for Ms Alach's recommendations may be obtained from the reports of Professor Disler of 10 August 2004 and 7 November 2005. They were separately provided for in the assessment at trial. On the other hand Dr Dragutinovich took a more pessimistic view; see extract from report of 24 September 2005 set out at [39] above. 93 In the light of this evidence, and acknowledging the degree of uncertainty which must attend such prognoses, the appropriate course is to allow for a continuation of the present level of attendant care and provide a reasonably significant discount for the possibility of future improvement. Accordingly, I would allow four hours per week at the agreed rate of $26.60 per hour, applying a multiplier of 1023.5, but subject to a discount of 25%. On my calculation that provides an amount of $81,675. 94 This approach to future attendant care services is consistent with the conclusions in relation to his loss of future earning capacity. At least in this case, there should be a degree of commonality in the assessment of these respective elements, given the nature of the appellant's disabilities. Conclusions 95 The following heads of damage were allowed by the trial judge and not challenged: General damages $180,000.00 Past medical expenses $15,488.00 Future medical expenses and aids $76,705.00 Total $272,193.00

96 I note that in the third category, his Honour included an allowance of $30,000 on account of case management. That element must therefore be excluded from the calculation of attendant care services undertaken above. Secondly, his Honour included in that amount a figure of $10,000 for vocational rehabilitation, $5,000 for future psychological consultations and $1,000 for future physiotherapy treatment. In accepting these amounts, consistently with his loss of earning capacity, it must follow that the appellant suffered a significant disability in respect of matters which would affect his ability to look after himself in the future. 97 The third element in this final figure was an amount of $30,705 for the services of a financial manager which is approximately 4.47% of the total figure but appears to have been based on a flat rate of one hour per month, as claimed by the appellant. Some further allowance may need to be made for funds management with respect to the amount of the judgment replacing that provided by his Honour. 98 In addition to those amounts, I would allow the following items: Past economic loss $53,400.00 Future economic loss $378,000.00 Loss of superannuation (11% of net lost earning capacity) $47,630.00 Past attendant care services $30,600.00 Future attendant care services (less $30,000) $51,675.00 Total $561,305.00

99 In order to calculate the appropriate funds management figure, if it is to be calculated as a percentage of the proposed fund, the parties should have the opportunity to agree a figure, or, absent agreement, to provide brief submissions as to the appropriate figure, having regard to any evidence before the trial judge. 100 I would propose that the judgment be backdated, to take effect from the date of judgment of the trial judge, namely 9 June 2006. If any amount on account of pre-judgment interest is sought to be included in these figures, the parties should also include that calculation in their note, together with any other correction to the calculations noted above. Costs 101 The trial judge ordered that the defendant pay the plaintiff's costs. Whether any special order is required in relation to the basis of assessment of costs, in the light of the new award, is a matter which the parties should have leave to address in their note or by way of written submissions as necessary. 102 The respondent should pay the appellant's costs of the appeal. 103 WINDEYER J: I agree with the judgment of Basten JA other than the conclusion he has reached as to superannuation loss in paragraphs [52]-[58]. It is unfortunate that intention to make the submission on s 15C was not advised to the court or appellant prior to the hearing so that a three judge bench was assembled to hear the appeal. In the event the Court has been reconstituted to determine the appeal. 104 I am unable to accept that there is any ambiguity in the wording of s 15C of the Civil Liability Act 2002. This section is not intended to provide an arbitrary cap but rather, in my opinion, it is intended to provide a method of calculation of damages for loss of superannuation entitlements. I accept that the wording of the section may bring about an unintended result, but I do not consider that authorizes the court to construe the legislation against its literal meaning. 105 I do not understand the authority upon which it is said that calculation is sometimes undertaken on the basis of 11% of net earnings. I note that Harrison As J made the calculation at 9% in Harrison v Melham (No 1) [2006] NSWSC 1258. 106 It follows that I consider the amount to be allowed for loss of superannuation to be 9% of $433,000, namely $38,970. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Supreme Court Act 1970(NSW)s 46A, ss 75A, 105, 107, s 46A.

Civil Liability Act 2002(NSW)ss 3B(2), 15C, s 15C

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Judgment (41 paragraphs)

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Cases Cited (23)