Oliver Davey Glass Pty Limited v Hollands

General damages $ 40,000.00 Interest thereon $ 5,000.00 Past wage loss $ 45,000.00 Interest thereon $ 11,000.00 Future loss of earning capacity$100,000.00 The substitution of those figures means that the total award of damages to the respondent has to be reduced by $174,116.00. Accordingly, I would allow the appeal, set aside the award of damages made in the Supreme Court of the Australian Capital Territory and substitute an award in favour of the respondent of $270,380.00. I would order the respondent to pay the appellant's costs of the appeal. I certify that this and the twelve (12) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Mr Justice Gallop. Associate: Date: 20 December 1996

IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) No. ACT G38 of 1996 DISTRICT REGISTRY ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: RACHAEL REBECCA PARKINSON Appellant AND: UTE KUEHNAST Respondent

CORAM: Gallop, Miles and Foster JJ DATE: 20 December 1996 PLACE: Canberra REASONS FOR JUDGMENT MILES J: I have read the judgments of Gallop J and Foster J in draft form. I do not differ on any matter of principle enunciated in either of the judgments. They illustrate, if I may say so, the difficulty of assessing the monetary value of loss of earning capacity both in the past and in the future where the facts require consideration of a multitude of hypotheses as to what life might have held for the plaintiff if not injured and also as to what life might still hold for the plaintiff in the injured condition. Reasonable minds may well differ as to the importance of competing hypotheses and the extent to which they permit the sort of arithmetical valuation favoured by Foster J or whether the circumstances are so imponderable as to require the intuitive selection of a figure such as Gallop J would award as a sort of buffer. As Gallop J observes, there is some guidance from Brennan and Dawson JJ in Malec v. J.C. Hutton Pty Limited (1990) 169 CLR 638 at 640, where their Honours express disapproval of a process whereby damages are assessed "on the footing of an evaluation expressed as a percentage". However, their Honours appear to qualify this disapproval by going on to say that damages "need" not be assessed by first making the assessment on the assumption that the hypothetical event would have occurred or will occur and then discounting by a selected percentage for the chance that the hypothetical event might not have occurred or may not occur. Their Honours appear to leave it open in appropriate cases to award damages by the method which they disapprove and that method is not condemned in the majority judgment in Malec. Furthermore, in practice the obvious dangers of an intuitive approach may be minimised by checking the figure chosen against what might be arrived at by taking the alternative, arithmetically-based approach in which a reduction is made by way of a selected percentage. Accordingly, whilst on balance I think that the approach of Gallop J is to be preferred in the circumstances of the present case, the correctness of the result so reached is only confirmed by the approach of Foster J. I agree with the orders proposed by their Honours. I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of his Honour, Justice Miles. Associate: Date:

IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY) No. ACTG 38 of 1996 DISTRICT REGISTRY ) GENERAL DIVISION )

On appeal from a Judge of the Supreme Court of the Australian Capital Territory BETWEEN: RACHAEL REBECCA PARKINSON Appellant AND: UTE KUEHNAST Respondent CORAM: GALLOP, MILES and FOSTER JJ DATE: PLACE: CANBERRA REASONS FOR JUDGMENT FOSTER J: This is an appeal from a judgment of Higgins J given on 14 June 1996, in which his Honour awarded the plaintiff (the present respondent) damages in the sum of $444,496 in respect of injuries, disabilities and consequent losses suffered by her in a motor vehicle accident on 27 February 1992. His Honour found that the respondent was the driver of a vehicle which had become stationary in Barry Drive, Canberra at its intersection with Moore Street, in response to a red traffic control light. Whilst stationary her vehicle was struck from behind by a vehicle driven by the defendant (the present appellant) in what was described by his Honour as being "a relatively minor impact". Because of pre-existing degenerative changes in her neck, however, this impact occasioned significant consequences to her. His Honour found liability in favour of the respondent. This finding is not challenged on appeal. The appellant, however, challenges the award of damages as being excessive. It is contended that the amounts awarded for general damages ($80,000), past wage loss ($97,375) and future loss of earning capacity ($167,346) require intervention and reduction by this Court. GENERAL DAMAGES It is convenient to consider in the first place the award for general damages, as it involves a consideration of the plaintiff's injuries received in the accident and their effect upon her in her ordinary activities and enjoyment of life. The respondent is a German national having been born in Hamburg, Germany, on 2 May 1943. She was, accordingly, nearly 50 years of age at the time of the accident. She had married in 1962 and between 1963 and 1971 had borne 4 daughters. Prior to 1979 she had done occasional work, to which reference will be made later. In 1979 she undertook an educational course preparing her for university entrance which she completed successfully in 1980. In 1981 she entered the University of Oldenburg from which she graduated in 1987 as a qualified educationalist. During this period, in 1985, she and her husband were divorced. Thereafter she had certain jobs, the last being that of a marketing consultant between September 1990 and September 1991, in which month, after inheriting some money, she left Germany on a six month world trip, during which she suffered the subject accident. She said in evidence, and his Honour accepted, that she had not previously suffered any pain or restriction in her neck, shoulders or arms but had had previous arthritic pain in her left hip which was treated on occasions by injections administered by her doctor. This latter condition appears to have been at least temporarily exacerbated by the accident but was only a minor consideration in the award of damages. She suffered no immediate effects from the accident but later, whilst out that evening, she experienced problems with vision, became nauseous, and developed a severe headache. She also had symptoms of tightness on each side of her neck. She was obliged to return home and the next day saw Dr Lee, a general practitioner in Canberra. At that time she had pain in her neck and was restricted in the movements of her left arm, shoulders and back. X-rays were taken. She was given medication and, on the doctor's advice, commenced physiotherapy. She was also advised to wear a neck collar when travelling. She saw Dr Lee on two other occasions in March 1992 before continuing on her trip, which had been pre-booked. She continued to suffer discomfort in the neck and left arm with occasional numbness in the fingers of the left hand. She also had headaches. When staying in major cities she obtained medical and physiotherapeutic help. Because of continuous pain and discomfort she eventually shortened her itinerary by two weeks, when in America, and returned to Germany in June 1992. In Germany she came under the care of Dr Goeing, an orthopaedic specialist, who prescribed physiotherapy and gave her a course of injections in the neck and shoulder. These gave temporary relief. She suffered from fluctuating headaches and consulted a neurologist about recurring numbness in her hands. She unsuccessfully sought work in Germany in 1992 in circumstances to which I shall refer later. She was still unemployed in December 1993 when she returned to Australia to take part in legal proceedings, which had been commenced on her behalf before she had left Canberra. These proceedings, however, did not go on at the time because it was necessary that they be transferred to the Supreme Court. She remained in Australia until the end of April 1994. During this time she had further treatment for the persisting symptoms in her neck and arms. She also consulted Dr Robson, a neurosurgeon, in March 1994 who, having ordered and considered x-ray imaging of her neck, recommended an operation at three vertebral levels. Whilst the respondent was considering this advice she received a communication from Germany offering her a job. She decided to return to Germany, arriving back on 2 May 1994. She took up the job on 15 June 1994. The job, to which reference will be made later, lasted for a year. The respondent appears to have no intention of undergoing neck surgery, although Dr Robson corresponded with a colleague in Germany in relation to her case. She has, however, continued to take anti-inflammatory medication and undergo repeated physiotherapeutic treatments. She has continued to suffer pain in the affected areas. She has suffered gastritis as a result of the anti-inflammatory medication that she has been taking. In November 1995 she returned to Australia for the hearing of the case. She had a number of medical examinations. She returned to Dr Lee in December 1995 in relation to her neck problems. He prescribed medication. She was also reviewed by Dr Robson who renewed his advice that she should have operative intervention. She also saw a number of medical practitioners on behalf of the appellant, none of whom was called in the case. The only medical evidence tendered was in the form of certificates from Dr Lee and Dr Robson in Australia, and Dr Goeing and Dr Dickmann, a neurologist, from Germany. There were also radiological reports and reports from physiotherapists. His Honour accepted that when in employment full time in Germany in 1994 she "suffered numerous headaches, shoulder and neck pain. She needed pain killing drugs during the day and also physiotherapy to keep going". He found that her main complaint was neck pain and headaches which occurred two to three times per week, sometimes daily, the neck being always stiff, sometimes including the shoulders. The reasons for her symptoms were explained in the medical evidence, which his Honour accepted and which was not challenged. His Honour stated:- "The diagnosis was that there had been hyper-extension injury to the neck and shoulder strain. There had been spondylosis at C4/5, C5/6 and C6/7 levels. Dr Dickmann, a neurologist and psychiatrist, considered that there was sensory compression syndrome of the nerve root C7 left. Dr Robson, neurosurgeon, considered that, at least without surgery to repair damage to discs in the neck, the plaintiff's condition will continue. The accident did not cause degenerative changes in the plaintiff's neck or her left hip. It did stir up the hip and exacerbate its condition. It caused the neck to become symptomatic and exacerbated the underlying degenerative changes. But for the accident that might have never occurred. The fact that a plaintiff is more susceptible to serious harm from a relatively minor impact does not reduce the defendant's responsibility for the consequences. It may, of course, have an adverse effect on the assessment of unfavourable vicissitudes." His Honour went on to find that the plaintiff's enjoyment of life had been seriously affected and that she was "significantly disabled". He assessed general damages in the sum of $80,000. It is submitted on behalf of the appellant that, even after making due allowance for the fact that his Honour had the advantage of observing the plaintiff and acknowledging that the assessment of damages for pain and suffering involves a high degree of discretion, the figure awarded was excessive to the point of demonstrating appealable error. I have found this aspect of the appeal difficult to decide. The figure is considerably higher than I would have awarded on the evidence but that, of course, is not the test. It is important to recognise that this is not a case of a simple whiplash type soft tissue injury. There has been, undoubtedly, an exacerbation of a pre-existing spondylitic condition at three levels of the neck. His Honour has accepted the plaintiff's evidence that prior to involvement in this fairly minor accident she had been fortunate enough not to have experienced pain in these areas. His Honour's finding that there might never have been an occurrence of symptoms had it not been for the accident leaves open, of course, the possibility that some other relatively minor event, occurring later, would have produced the same result. Unfortunately, no oral medical evidence was given and this question remained unexplored except to the extent that the underlying condition of the neck, as demonstrated in the sophisticated radiological investigations that were undertaken, would necessarily demonstrate the vulnerability of the discs in the three areas in question. The question necessarily arose whether the effect of the accident was not one of temporary exacerbation of the underlying condition causing symptoms in the period of some months after the accident but with the plaintiff's ultimate continuing condition being no more than the condition which the degenerative changes in her neck at the three levels were inevitably leading to. As his Honour has found, on the evidence, the degenerative changes were not caused by the accident. His Honour does not undertake a review of the medical evidence in his judgment. I consider that I should make some reference to it. Dr Lee, shortly after the accident, reported to the respondent's solicitors that she had suffered a hyper-extension injury to her neck and slight strain to the shoulders in the motor vehicle accident. He described the injury as moderately severe with emotional disturbances. X‑ray examination indicated cervical spondylosis at C4/5, C5/6 and C6/7 levels with small osteophytes encroaching on the inter-vertebral foramina of those levels; spondylosis being degenerative changes with the passage of years. He expressed the view in March 1992 that he would expect her problems to continue for a further six weeks as a consequence of aggravation of a pre-existing condition with gradual subsidence of neck pains and headache and discomfort from nerve conduction in the left arm and leg. He reviewed her again when she returned to Australia in December 1995. She was complaining of a painful neck with movement and at rest. He prescribed analgesic medicine. He saw her again in January 1996. As at February 1996 he expressed the opinion that her prognosis was good but that the existing degenerative changes "may give her trouble in the form of aches and pain from time to time". Dr Dickmann examined her in Germany in June 1992 on reference from Dr Goeing. His report would appear to indicate that he gave her a full neurological examination. He agreed with Dr Goeing that "the patient's statements are very typical ... of a compression syndrome of the nerve root C7 left". He noted that the respondent "prefers to be content with conservative treatment for the time being". He said that he could not "diagnostically characterise with certainty the complaint of headaches and impaired vision". He indicated that "EEG and visually evoked potentials [were] without pathological findings". Dr Goeing commenced to treat the respondent in Germany on 5 June 1992. In relation to the neck she diagnosed a "reactive functional disorder of the cervical vertebral column after a whiplash injury and irritation syndrome of the sensory nerve root C7 left". She prescribed physiotherapy and associated measures. She administered a number of injections into the shoulder region, the back of the neck and the cervical spine. She expressed the view that at that time "no absolute incapacity to work existed". She also expressed the view, in December 1992, that "the impairment to daily normal life between June 92 and the end of August 92 amounted to 40% since September 92 up to now approximately 30%". I assume from this statement that she was noting generalised improvement in the respondent's condition. She was of the view that treatment, including injections, was still necessary but that surgical intervention was not indicated. In June 1993 she indicated that the respondent was being treated with medication, physiotherapy and pain relieving treatment such as therapeutic local anaesthesia. Dr Robson examined her in Australia in February 1994 and reported to her solicitors. He took the view, after appropriate x-rays, that "it does seem to me to be likely that her troubles are attributable to mechanical structural change in discs which were already imperfect when the accident happened". He said that she had three options. The first was "to understand the problem, accept it as it stands, put up with the discomfort and just get on with life". The second was to continue with medication and therapy of one kind or another "that can at best only offer temporary help". The third was surgical intervention which would involve fusing the discs at all three levels. He advocated this approach but, as I have already indicated, the respondent has indicated no intention of following this advice. In January 1996 Dr Robson, having examined the respondent again, noted, from her description, that she was "in just the same trouble as before as far as her neck is concerned, and it fluctuates in severity, it comes and goes but the overall problem is essentially unchanged". He said that "she, in commonsense terms, either has the choice of putting up with it and taking Panadol or some such medication, or on the other hand pursuing surgical treatment" which he advocated, saying that "she would have a far better than 80% likelihood of a very good result if all three of the discs were fixed". A fairly detailed report was given by a physiotherapist who had treated the respondent after the accident and on the occasions of her visits to Australia thereafter. She gave a prognosis that the plaintiff "will continue to have low grade pain and stiffness from time to time over the next two years or so". She expressed the view that the respondent's "intermittent arm symptoms" should be investigated more closely. She finally said: "Ute does not allow her disability to interfere with her love of travel and her enthusiasm for life. However there is little doubt that she has had to modify her activities of daily living to accommodate her pain. I believe that she will always have to consider her neck injury in relation to activities that she wishes to undertake." Reading the available medical evidence and accepting that the respondent does not wish to undergo surgical intervention which could abolish the pain in her neck, I feel that this last statement provides a fair summation of her condition and one which accords reasonably with the evidence she has given. It is, of course, possible to describe this condition as amounting to "significant disability". This is, however, to do no more than to attach a label to the evidence. I have come to the conclusion that the award of $80,000 for the injuries and consequent disability exceeds what is reasonable in the circumstances to an extent that warrants appellate intervention. I say so with due regard and respect for the careful view formed by the learned primary judge. In my respectful opinion, the respondent's pain, suffering and disability cannot command an award higher than $40,000 (apportioned in the same ratio as his Honour, which was half to the past). The appropriate award of interest in relation to this award is $5,000. I propose that the amount awarded be reduced accordingly. PAST WAGE LOSS His Honour noted that the respondent obtained tertiary qualifications as an educationalist in 1987. It also appears that she returned to university to obtain some further qualification but did not continue with the course as she obtained employment "as a sales manager in a shop". During 1988 and 1990 she worked for seven months in this capacity. Thereafter, between 1990 and September 1991 she obtained employment as a real estate marketing consultant, at first part time and then full time. Her evidence indicates that this work involved showing prospective customers around lease-hold premises and arranging for them to sign rental contracts. In September 1991 she obtained work as a marketing consultant. The evidence does not make clear what was involved in this work. It appears that it had something to do with promoting the sales of a cleaning firm. She says that "the job was a lot of work and didn't bring much money". It also appears that she inherited money in September 1991, at which time she decided to leave Germany and undertake the trip during which the accident occurred. The situation prior to her accident, then, does not reveal any established pattern of work, despite the qualification as an educationalist that she had obtained. No evidence was given in respect of earnings in this period. The claim for past wage loss was based upon earnings achieved by her after the accident. It was argued on behalf of the appellant that this was an impermissible approach. I do not agree. I consider his Honour was justified in looking to post-accident earnings as a guide to wage loss up to the time of judgment. It was also submitted that his Honour erred in finding a wage loss up to the time of judgment insofar as the plaintiff's original claim as particularised had terminated at the point of time when she returned to Australia in December 1995. There is no error in his Honour's approach. Obviously, it was necessary for her to return to Australia for the hearing of her case and the period that she was necessarily in Australia prior to and during the hearing could properly be taken into account in arriving at the relevant wage loss. However, in my respectful opinion, there are more significant difficulties in relation to the primary judge's approach. These arise from the use that was made of an employment contract that she secured upon her return to Germany. This was a contract that was to commence from 1 September 1992. It was for employment as an "educationalist/ social worker" with an association described as the Infant School Association Oldenburg Inc. This appeared to be work in keeping with her tertiary qualifications. It was to "focus on educationalist expert consultancy with the child care staff employed at the centre" and associated activities. A problem arose, however, in relation to her acceptance of this employment. The problem and its result was stated, by his Honour, in the following terms:- "The plaintiff had believed that the employment would be in the Oldenburg area. It was, however, spread over a 200km radius. Her neck was continuing to cause trouble. She was advised that the level of driving required would exacerbate her symptoms. She was given medical advice to limit her driving. However, that proved unacceptable to the employer. As a result, before she took up her duties, the contract was, by mutual agreement, cancelled. The plaintiff would have been paid DM 3,412.58 net of social security and tax." These findings were not challenged but there was a challenge to the use to which they were put. I shall refer to this later. The respondent obtained no further work, although she registered for it with the relevant employment agency. As his Honour found, she obtained a certificate under relevant German legislation that she was "30% disabled" by her injuries. In my view, the evidence does not really clarify the effect of this classification. His Honour makes no finding other than that she was so classified. In December 1993, apparently not having worked in the meantime, she returned to Australia, as already indicated. Her claim was not then heard but she returned to Germany in April 1994 having received a job offer. This was with an organisation known as ALSO Unemployment Self-Help Reg. This employment commenced on 15 June 1994 and consisted of a one year contract to work as a "social adviser". His Honour referred to her earnings in this employment as follows: "the gross salary for this position as a social adviser' was DM 4,320.66 gross, net DM 2,813.32, after tax, health insurance, pension insurance, unemployment insurance and payment VWL (whatever that was)'". As his Honour found, the employment was full time. The plaintiff performed the work although she suffered headaches, shoulder and neck pain requiring "pain killing drugs during the day and also physiotherapy to keep going". When this contract expired in June 1995 she became unemployed until returning to Australia in November of 1995 for her case. She says that she applied for three positions but that they were already filled. The question of how she supported herself during what were fairly extensive periods of unemployment was not the subject of much attention in the case. The evidence would appear to establish that she was eligible for unemployment benefits which she called "the dole", but only for a limited time because she had a father who was capable of supporting her. The degree to which she had independent means, or the extent of the inheritance to which she made reference was not explored. It must be taken, however, that she had means of support in these periods from some source other than employment. The evidence does not supply much detail as to the nature of the employment she unsuccessfully sought after the termination of her contract with the ALSO organisation. However, the following evidence was obtained in cross-examination:- "MR PARKER: Now, what was the last job that you applied for? -‑‑That was - I had three. I think that was in Oldenburg or in Hamburg. I applied in Hamburg because my father would give me a flat there then if I have - had been able to get a job there. What sort of a job was that?---That was also in social. It was with - working with long-term unemployed refugees and people that are on - paid by government, paid for further or advanced education. HIS HONOUR: Scholarships?---Yes, things like that. Elderly people that have to undergo a certain education to make them - that they could get the job much easier if they have more skills. MR PARKER: Right. And now what salary would you have received if you had been awarded that job?---Like a Diplom Padagogin. Like a - - -?---Not as a social worker, like a - my profession is a Diplom Padagogin we call it. It is a sort of Master of Advanced - Master Degree of Advanced Education. Well, how much would you have expected to get per month?---I think the same than in the first job because it's paid by BRT, at the tariff.

And the job before that, that you applied for?---That was sort of the same thing in a school in Oldenburg and it is all - I am employed on the basis of my education. It is all then BRTVR. It is - they have - they can't employ you under that what are your skills. And that pay includes, does it, some allowance, some allocation related to your age?---What allocation? Well, some part of that relates to - the older you get, the more you get for any particular - - -?---yes, but that's the tariff then. It's all - they don't make it for you. That's the - - - Anybody who has that profession - - -?---Yes, and has that age, gets that money. All right. And you're continuing to apply for those sorts of jobs at the present time?---Yes, if they - if I read it in the paper or so, yes." The passage is, of course, not entirely clear but a reasonable construction of it is that she sought employment consistent with the tertiary qualification that she had and in which she would have been paid at the same rate as the employment that she was unable to take up because of the driving difficulty from which she then suffered. It should be noted that her driving ability had improved prior to her returning to Australia in that, because she had been provided with a specially designed seat for her car, she could drive for periods up to one hour before needing to rest because of discomfort in the neck and shoulder. It must also be noted that in relation to work that she could do consistent with her skills she said "I have an MA in advanced education, so I can train apprentices and I can work as a teacher and as a social adviser. It is a very big spectrum...". The work that she had applied for was "sort of social work, some of these where I applied for, it was sort of social work also and teaching". His Honour's approach to the assessment of past wage loss appears in his judgment as follows:- "As to past wage loss, the net monthly wage should be the gross sum, less only the tax thereon. Deductions for voluntary or discretionary purposes, for example, child care, mortgages, health insurance and the like, should be ignored. Thus the remuneration for the plaintiff's position with the Infant School Association would have been DM 4,356.07 monthly or DM 1,005.25 weekly. The subsequent employment contract with ALSO was, on that basis, DM 3,768.16 monthly or DM 869.58 weekly. The plaintiff's particulars claim an earning capacity of DM 853.15 per week. The past wage loss was calculated by applying an earning rate of DM 3,412.58 monthly. That would have been DM 787.52 weekly. Those rates are less than the apparent rate warranted on the assumption that the employment contracts the plaintiff obtained represented her capacity for full-time employment. They do not include allowances for superannuation and health insurance. I accept the earning rates particularised on that basis. The amount the plaintiff could have earned net of the sum she did earn would be DM 126,631.42 up to the date of judgment. The plaintiff's employment history persuades me that there may have been significant gaps for personal reasons which would have reduced the average net earnings. I consider a further discount of 12.5% would allow for that. I therefore award DM 110,802.50, that is, $97,375.00 for the past wage loss. The award of interest thereon is claimed from 1 September 1992 to 30 June 1993 at 7.5% and to date at 5% on that figure. That yields a figure of $20,449.00." His Honour did not provide particulars of how the figure of DM 126,631.42 was arrived at, but it appears that he accepted that the respondent's earning rate but for injury would have been DM 3,412.58 per month (DM 787.52 per week), and that during such time as she in fact worked, her earning rate was DM 2,813.32. His Honour also said:- "I have noted that the plaintiff had not had a steady work history before 1990. However, she was in constant employment until September 1991. Further, had she been able physically to perform the duties of the position she was engaged to perform in July 1992, as from 1 September 1992, I consider she would from then on have been in constant employment in that or a similar capacity until retirement at least to the extent she desired to be. It is, therefore, legitimate to use the level of earnings from her employment contracts following the accident as a guide to her earning capacity but for the injury." A challenge was made to his Honour's failure to include the "deductions for voluntary or discretionary purposes" which he refers to in the calculation. I do not think that this objection is established. In my view, it was, in the circumstances, within the range of his Honour's discretion to leave those matters out of account. The significant challenge that is made, however, is to his Honour's general approach, namely that, had it not been for the accident, the respondent would have accepted the contract with the Infant School Association Oldenburg Inc and, effectively, remained in that employment until age 60, which, on the evidence, would have been her required retiring age. So far as the assessment of past wage loss is concerned the concept that she would have been in this employment up until the date of judgment underpins the award. A calculation based on that concept was reduced by a discount of 12.5% on the basis that there "may have been significant gaps for personal reasons" in her employment. In my respectful opinion, this approach cannot be adopted unless the evidence allows it. In my view, it does not. It is clear that, after graduation from university, and prior to leaving on her extensive trip, the plaintiff's employment history could only be described as sporadic. Although she had skills consistent with the performance of work that she was later unable to perform because of neck pain, she does not indicate in her evidence any significant attempt to obtain such employment on a full time basis. She inherited money which enabled her to travel in this period and there is a fairly clear indication in the evidence that she would have wished to travel in the future to an extent incompatible, in my view, with a finding that, had it not been for the accident and subject to some gaps "for personal reasons", she would have sought full time employment at that level. There is, indeed, very little evidence bearing upon her work intentions, but what there is supports the latter picture rather than the former. She gave the following evidence in chief:- "MR STRETTON: Is there any requirement in Germany that you retire at a particular age?---yes. What is the retiring age?---Retiring age for a woman, as I told, would be 60 if you have worked that time and 65 if you didn't, and for a man, I think it's 63, it's different. Do not worry about the man. If you had received this job in September 1992 and continued to work in it, at what age would you have expected to retire?---At 60."

I note that the third question is hypothetical and was, no doubt, deliberately so. The answer is, in my view, not capable of supporting a finding that the respondent intended to work in the job until retiring at age 60. The respondent also agreed, in cross-examination, that she very much enjoyed travelling and that over the years she had done a lot of travelling, mostly to Australia. She gave the following evidence:- "MR PARKER: Well, had you not had this accident, you would have done a lot more travelling, would you?---Yes. And you would have travelled fairly regularly to Australia?---Depends. If I would have stayed on that job I would only have five to six weeks every year, so I think I would have come every two years. Is the job though you are speaking of with the Olden Kindergarten?---Yes." Again, in my view, this answer falls far short of establishing that she had, prior to the accident, the intention of continuing in the Olden Kindergarten job until retirement age. It is not submitted that there is any other evidence in the case bearing upon this aspect. It is conceded that at no point did the respondent assert positively that she had had any such intention. On the contrary, in my view, the evidence points more towards the respondent's having the intention of working for periods of time followed by periods of unemployment during which she might travel. In these circumstances I have come to the conclusion, with respect, that his Honour erred in approaching the assessment of past wage loss by accepting a proposition of continuous employment up to time of judgment in the Olden Kindergarten or its equivalent and then making a discount as he did. In my view, the matter has to be approached on the basis that the respondent, although having the relevant demonstrated earning capacity, would not have chosen to exercise it continuously. The approach that I would adopt is to commence on the basis that the respondent would have sought to exercise her earning capacity for only three quarters of that period. This would produce a basic figure which would itself require reduction by the application of an appropriate discount rate for contingencies. The basic figure is calculated by multiplying DM 787.52 per week (the amount apparently accepted by his Honour, outlined at page 18 above) by 197.17 weeks from 1 September 1992 to 14 June 1996, the date the contract with the Infant School Association Oldenburg Inc would have commenced to the date of his Honour's judgment) and by three quarters. This produces the basic figure of DM 116,456.48. I also find myself in respectful disagreement with his Honour as to his selection of a rate of 12.5% for contingencies. I consider that more than the usual contingencies of life would apply in the respondent's case. In the first place, the evidence indicates that work in the respondent's field of skill was by no means automatically available. It is established, clearly enough, that she could perform work in that area if the heavy driving requirement was not involved. Nevertheless, her efforts to obtain work had not been successful, insofar as jobs for which she applied had already been filled. Accordingly, she may well have been unable to exercise her earning capacity even to the extent which I have found, on the probabilities, she would have wished. More significantly, she would have been at risk of suffering incapacitating exacerbation of her underlying degenerative condition of the neck from a range of relatively minor traumas in her ordinary life. I consider that a 25% discount should be applied to the basic figure in order to take account of these matters. DM 116,456.48 reduced by 25% is DM 87,342.36. From this figure of DM 87,342.36 there should be deducted the amount actually earned by her over the period, namely, DM 33,759.84. The end figure for past loss of earning capacity arrived at in this way is then DM 53,582.52 or $47,088.95. Of course, it must be recognised that the approach I have adopted of utilising mathematical computations based upon factual assumptions is capable of producing a false appearance of precision. Such assumptions and calculations can never be more than a useful guide or check. However, as they are the product of a reasoned approach to the assessment of an award of damages they must be a more valuable approach that one involving mere speculation. For my part I do not understand anything in the judgments of the members of the High Court in Malec v JC Hutton Pty Limited (1990) 169 CLR 638 to gainsay the usefulness of this approach. The traditional warning is, however, sounded that care must be taken to acknowledge that the appearance of accuracy can be fallacious. It is necessary to examine any figure so produced to determine whether it accords with what could be described as an intuitive judicial satisfaction as to its appropriateness. It must always be reasonable to reduce or increase a figure so obtained, usually by a process of rounding off. In the present case I consider that it is reasonable to reduce the figure thus arrived at to a round figure of $45,000 which, indeed, accords with the figure arrived at independently by Gallop J. It is appropriate to award interest on this figure in the sum of $11,000 so that, in my view, past earning loss is appropriately compensated for in the sum of $56,000. FUTURE LOSS OF EARNING CAPACITY His Honour, in reaching the figure which has been challenged, used as a starting point the figure of DM 317,371.08, this being the present value at time of judgment of wages payable under the Infants School Association Oldenburg Inc contract up to age 60, a period of approximately eight years. He said that the selection of this period in itself contained an element of discount as the plaintiff might have worked until age 65. However, having regard to the evidence as to retiring age and the difficulty of older workers obtaining employment, it would appear that his Honour regarded this discounting factor as quite minimal. I would agree. His Honour took into account, however, that "the plaintiff's desire to travel from time to time" provided a further discounting factor. He also considered that the plaintiff would become "more adept at coping with her disability" when she "puts this case behind her and proceeds with her life". He obviously considered that this would have a beneficial effect on her residual earning capacity in that she should be able to earn at a higher rate than that achieved in performance of the ALSO contract. It is clear that his Honour took these matters into consideration when he came to the following decision: "I consider her residual capacity, including other contingencies, require a 40% discount of the total value of the lost earning capacity, having regard to the choice of age 60". This discount reduced the total figure already referred to, to the figure of DM 190,422.64, i.e. $167,346.00, the amount under challenge. As I see it, with respect, the same difficulty applies to this reasoning as applied to the assessment of past wage loss. It is necessary to make an appropriate estimate of the extent to which the respondent would have exercised her earning capacity over this period and then to take into account contingencies which would have affected that exercise. In my view, it is reasonable to assume that she would have sought to exercise that capacity for a period not exceeding three quarters of the period which would elapse from the date of his Honour's judgment until her achievement of the age of 60. Accordingly, the starting figure must be reduced from DM 3,412.58 per month or 787.52 per week (the amounts apparently accepted by his Honour, outlined at page 18 above) to three quarters of that figure, which is DM 590.64 per week. On the 3% discount table, the present value of such a loss for a period of 7 years would be DM 194,911.20, and for 8 years would be DM 219,718.08, or an average of DM 207,314.64. The contingency relating to the vulnerability of her neck is significant and would continue into the future. The ordinary contingencies of everyday life, including the availability of work in her chosen field must also be taken into account. Furthermore, the respondent, on her evidence, has indicated the existence of a considerable residual earning capacity as she said "over a wide spectrum". In order to take account of all these matters I consider that a discount of 45% should be applied to the basic figure of DM 207,314.64 arrived at in the manner I have indicated. The result is DM 114,023.05 or $100,204.80. In my opinion, the round sum of $100,000 is an appropriate award for future loss of earning capacity. It accords with the figure arrived at by Gallop J in his reasons for judgment. In the result, I agree with Gallop J that the total award of damages must be reduced by $174,116. The appeal should be allowed, the primary judge's award of damages should be set aside and there should be substituted an award in favour of the respondent in the sum of $270,380. The respondent should pay the appellant's costs of the appeal. I certify that this and the preceding twenty-six (26) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

APPEARANCES Counsel for the Appellant: Mr P J Deakin Instructing Solicitors: Barker Gosling Counsel for the Respondent: Mr D Feller Instructing Solicitors: Deacons Graham James Date of Hearing: 21 October 1996 Date of Judgment: 20 December 1996