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Parties: Andrew Robert Oliver (Appellant) Caroline Roberts (Respondent)

Representation: Counsel Dr A Morrisson SC (Appellant) Mr I Bradfield (Appellant) Mr K Rewell SC (Respondent) Mr D Crowe (Respondent) Solicitors MTM Legal (Appellant) Moray and Agnew (Respondent)

File Number: ACTCA 66 of 2017

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Walmsley AJ Date of Decision: 12 December 2017 Case Title: Oliver v Roberts Citation: [2017] ACTSC 360 Court File Number(s): SCC 439 of 2013

THE COURT:

Background to the appeal

1. On 27 August 2010, the appellant sustained traumatic brain injury (TBI) in a motor vehicle accident. The respondent admitted liability.

2. At the time of the accident, the appellant was a university student who was studying for a degree in industrial design. He worked part-time as a labourer.

3. At the time of the hearing, the appellant was 27 years old. He enjoyed a reasonable social life and participated in physical activities requiring physical dexterity and fitness, including the French training discipline of parkour. He worked part-time at Questacon.

4. Walmsley AJ (the primary judge) assessed the appellant’s damages. During the proceedings, the main issue was the extent, if any, to which the appellant continued to suffer from cognitive impairment associated with the TBI caused by the accident.

5. On 12 December 2017, the primary judge gave judgment for the appellant in the sum of $1,084,575.00, including a buffer of $200,000.00 for future economic loss, $28,000.00 for future superannuation loss, $100,000.00 for a future case manager and $200,000.00 for future commercial care. There was no award for the future provision of gratuitous care.

6. The appellant appealed against the damages awarded for loss of earning capacity, future commercial care (including the allowance for a future case manager) and future gratuitous care. The appellant claimed that those awards were manifestly inadequate, had been calculated incorrectly and had been determined contrary to the accepted evidence and established principles.

7. On the appeal, the parties accepted the primary judge’s findings of fact.

Nature of the appeal

8. The appeal is by way of a rehearing: Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [5].

9. On such an appeal, an appellate court must conduct a “real review” of the evidence and the trial judge’s reasons for judgment to determine whether the judge has erred in fact or law: Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) at [25]. An appellate court will not interfere with the trial judge’s findings of fact unless they are demonstrably wrong, “glaringly improbable” or “contrary to compelling inferences”: Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; 90 ALJR 679 at [43], citing Percy at [29]. In general, “an appellate court is in as good a position” as the trial judge to decide on the proper inference to be drawn from established facts: Powell v Streatham Manor Nursing Home [1935] AC 243.

10. The assessment of damages may call for the exercise of judgment akin to the exercise of a discretion: Singh v Cooper [2016] ACTCA 55; 78 MVR 210 (Singh) at [79]. Where a primary judge’s assessment of damages involves no error of principle or misapprehension of the facts, the appellate court should intervene only if satisfied that the primary judge’s estimate of damages “falls outside the exercise of sound discretionary judgment”, is “wholly erroneous” or is unreasonable in that the damages are manifestly excessive or manifestly inadequate: Singh at [80]; Precision Plastics Pty Ltd v Demir (1975) 49 ALJR 281, 285; Wilson v Peisley (1975) 50 ALJR 207, 209 (Barwick CJ).

11. If an appellate court intervenes, it must give “the judgment which in its opinion ought to have been given at first instance”: Dearman v Dearman (1908) 7 CLR 549, 561–562 (Isaacs J). However, an appellate court cannot simply substitute its opinion for that of the first instance decision-maker; error must be determined before the appellate court may intervene: Fox v Percy at [22]–[31] (Gleeson CJ, Gummow and Kirby JJ).

The primary judge’s findings on the impact of TBI

12. At [484]–[485], the primary judge observed:

13. The lay evidence from the lay witnesses, and the plaintiff’s complaints to the health practitioners show that since the accident he has consistently complained of and/or demonstrated: (a) back pain; (b) forgetfulness; (c) lack of concentration and coordination; (d) lack of empathy; (e) lack of ability to read social cues; and (f) lack of drive and focus. 485. I find he has suffered those problems, as well as reduced word finding ability, reduced motivation, and reduced spatial awareness, since the accident. I find that the degree of the symptoms reduced in the first two years after the accident, but that since two years after the accident he has reached a plateau. Further, for the reasons which appear below, I accept the evidence of Dr Jungfer, Dr Buckley, Professor Brew, Dr Langeluddecke, and Dr McMahon, that those symptoms were caused by a neurocognitive disorder secondary to the TBI he suffered in the accident.

14. The primary judge recorded the following findings in relation to cognitive damage:

15. I find that the TBI lead to permanent cognitive damage manifesting in executive functions, memory problems, lack of concentration and coordination, lack of drive, lack of empathy, and an inability to read social cues. 600. I find the damage has affected and will affect the plaintiff’s ability to maintain and obtain employment and social relationships. 601. I find he will at times suffer depression from, inter alia, the inability to work in his chosen field to the degree he would like, and rejections for jobs or dismissal from them. He will have a need for treatment for the depression. I find there is a chance he will suffer Alzheimer’s disease by reason of the damage to his cognitive functioning.

Future economic loss

Background facts and findings

14. Although the appellant’s school performance was relatively poor, he was of high average intelligence.

15. At the time of the accident, the appellant was a first-year university student studying for the degree of a Bachelor of Industrial Design. In order to support himself, he worked part-time as a labourer.

16. In the second half of 2013, the appellant worked for approximately two weeks in the industrial design workshop at the University of Canberra and his supervisor observed no particular difficulty.

17. The accident delayed the appellant’s graduation by a year but, in 2014, he graduated with second-class honours (Division II).

18. In August 2015, the appellant began to work for Fink & Co, a well-regarded industrial design firm. The appellant was interested in the work and he applied himself as well as he could. However, he made mistakes. Despite reminders, the appellant repeated errors, apparently without realising it. He forgot instructions and lacked the focus required for detailed work. In early 2016, the firm ceased asking the appellant to attend work. The owner would not have employed him again.

19. In January 2016, the appellant commenced employment at Questacon, working part-time for between five and 25 hours per week. In 2016/2017, he earned an average of $827.35 net per week. The appellant’s role at Questacon involved demonstrating small scientific experiments to children. The position did not require a university degree. At one stage, the appellant applied for a different position at Questacon, but he was unsuccessful. The appellant was somewhat relieved because he had harboured doubts about his capacity to undertake the more demanding position.

20. The appellant’s brother, a landscape gardener and tree surgeon, occasionally employed the appellant. He found the appellant to be a “tiresome” employee who behaved inappropriately. But for the sibling relationship, he would not have employed the appellant.

21. The primary judge was satisfied that the appellant was good with his hands and gifted with design. But, although he worked well in a structured environment, the appellant encountered difficulties in a less structured workplace environment such as that at Fink & Co.

22. At [606], the primary judge said:

23. I find he will be permanently unable to maintain full time work in his chosen field or other work which is of equal income potential. I am satisfied he has done his best to get work since the accident. But his personality changes, loss of ability to judge social cues, inclination to say inappropriate things, loss of concentration and the like, will make him vulnerable to unemployment, and when he is employed he will be more likely be in positions akin to the one he currently occupies, with not a lot of initiative needed, and not a big need to get on with other adults. The appellant’s claim for future economic loss at the trial

24. In the trial proceedings, the appellant submitted a schedule of damages (Exhibit 1 on the appeal). In relation to past economic loss, the schedule claimed $275.65 per week, being the difference between $1,103.00 net per week (said to be the earnings of an industrial designer) and $827.35 net per week (the appellant’s earnings at Questacon).

25. The sum of $1,103.00 net per week came from the March 2015 vocational assessment report of Mr Martin, which stated that, but for the injury, as an industrial designer the appellant would have been expected to earn at least $1,103.00 net per week, and probably between $1,346.00 and $1,404.00 net per week.

26. We digress to note that, in June 2016, Mr Martin reported that the appellant’s earnings as an industrial designer would have been $1,394.00 gross per week at the commencement of employment, $1,698.00 gross per week at five years’ experience, $2,003.00 gross per week at 10 years’ experience and $2,308.00 gross per week at 15 years’ experience and beyond. The likely net weekly earnings were not stated. However, as a point of reference, the 2015 figure of $1,103.00 net per week was derived from the sum of $1,437.00 gross per week.

27. In the schedule of damages, the appellant claimed $1,122,082.55 for future economic loss. The claim was broken into three periods, which are intended to refer to loss of earnings from age 27 to 30 years; loss of earnings from age 30 to 45 years; and loss of earnings from age 45 to 70 years.

28. For present purposes, it is not necessary to examine the differences between the claims for each period except to note that, in relation to the first period, the appellant claimed the difference between $827.35 net per week (his earnings at Questacon) and $1,375.00 net per week, which was said to be what he would have earned as an industrial designer. The evidence provided no basis for the latter figure. On the appeal, the appellant instead relied on a figure of $1,359.50 net per week, which the amended statement of particulars claimed was derived from Mr Martin’s 2016 report concerning what the appellant would have earned as an industrial designer.

29. At the trial, the appellant’s counsel conceded that it was open to the primary judge to award a lump sum by way of a buffer, but submitted that any such award should be guided by calculations.

The primary judge’s assessment of future economic loss

29. At [631], the primary judge observed that the calculation of future economic loss was “far from amenable to precision” because of the range of possibilities that might impact upon the appellant’s future earnings.

30. His Honour proceeded to note the following matters.

31. First, his Honour accepted that the appellant was at increased risk of psychiatric illness and depression. As a consequence, the appellant would have trouble keeping a job. He would be vulnerable to depression and loss of self-esteem, particularly because of the cumulative impact of repeated job loss. These observations (at [632] and [634]) mirror those at [601] that the appellant would suffer from periodic depression, including depression caused by the inability to work in his chosen field to the degree that he would wish to do so, and job rejections or dismissals.

32. Second, his Honour stated that the appellant’s cognitive impairment and associated difficulty with task completion would impact upon his capacity to work at a high level to the satisfaction of an employer. These observations (at [635]) are consistent with those at [599] and [600] that the appellant’s permanent cognitive damage manifested in executive dysfunction, memory problems and lack of concentration and would affect his ability to maintain and obtain employment.

33. Third, his Honour accepted that industrial design work was neither readily available nor highly paid. Consequently, disregarding the accident, the appellant would not necessarily have stayed in the industrial design field.

34. Fourth, his Honour accepted that the appellant was vulnerable to losing employment because of his difficulty understanding social cues and exercising appropriate social judgment. These findings (at [638]) are consistent with those at [599] and [600] that social inappropriateness would affect the appellant’s ability to maintain and obtain employment.

35. Fifth, the primary judge was satisfied that there was a 30 per cent chance that the appellant would “have to give up work early”, i.e., there was a 30 per cent chance that, at an indeterminate future time prior to normal retirement age, the appellant would become totally unemployable.

36. Sixth, having referred to the appellant’s schedule of damages and the assumptions underlying the schedule’s claim for future economic loss, the primary judge said:

37. If one adopts a simple calculation using the $275.65 differential for 30 years, to age 67, on the 3 per cent table, before deductions for contingencies, the sum derived is 1038.1 x $275.65 = $286,152.27.

38. We pause to note that, where a mathematical calculation forms the basis of an award for future economic loss, it is usual to deduct 15 per cent for “vicissitudes”: see [41] below.

39. Seventh, the primary judge observed that the appellant was somewhat protected from unemployment because his father and brother were able to provide limited employment opportunities, although the employment that they could provide was not “likely to be highly productive”.

40. Having considered these seven matters, the primary judge said that he “[took] into account all the above matters” in arriving at an appropriate sum for future economic loss of $200,000.00.

41. In addition to awarding the buffer, his Honour calculated damages for the loss of future superannuation at 14 per cent of the buffer, i.e. $28,000.00. On the appeal, the parties accepted that it was appropriate to award 14 per cent of a buffer for such loss.

Correct approach to the assessment of a buffer for future economic loss

41. In Singh, this Court discussed the proper approach to a buffer for future economic loss. In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 (Allianz), the NSW Court of Appeal engaged in a similar discussion. In summary:

(a) An award of damages for future economic loss (including by way of a buffer) does not compensate the claimant for lost income; rather, it compensates the claimant for diminished capacity to earn income (the lost chance to earn): Singh at [65], Allianz per Basten JA at [24]. (b) Any award for future economic loss involves a discretionary judgment that takes into account a range of real possibilities and does not depend on the proof of probabilities: per Heydon JA in State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536, cited in Allianz by Basten JA at [25] and [27].

(c) Income earned prior to the accident may be the best evidence of pre-accident earning capacity. Post-accident income may be (but often is not) a good indicator of current capacity. Usually, it is necessary to consider the extent to which pre-accident and post-accident capacity might have been and may be expected to vary in the future: Allianz per Basten JA at [24].

(d) Commonly, a mathematical assessment of loss of earning capacity is reduced by 15 per cent for “vicissitudes” for the fact that, regardless of the defendant’s negligence, the claimant may have suffered a diminution in earning capacity during their working life: Allianz per Basten JA at [29].

(e) Where the evidence enables a mathematical approach to the assessment of future economic loss, such an approach is preferable: Singh at [61], Allianz per McColl JA at [9] and Macfarlan JA at [72].

(f) However, the reduction in earning capacity may be difficult to determine other than by a broad approach: Allianz per McColl JA at [6]–[9]. It may be “so fraught with uncertainty that the preferred course is to award a lump sum as a buffer”, rather than engaging in an artificial exercise of reducing a precise figure by a precise percentage: Allianz per Basten JA at [30].

(g) The assessment of a buffer may be somewhat intuitive: Singh at [61]. However, considerations informing the outcome should be articulated: Singh at [77].

Appellant’s submissions about the manner in which the primary judge assessed future economic loss

42. The appellant submitted that the primary judge had erred by:

(a) using a calculation that understated loss by calculating loss over 30 years rather than 40 years;

(b) ignoring his Honour’s own finding that there was a 30 per cent chance of total loss of work;

(c) making an inappropriate allowance for vicissitudes; and

(d) using the wrong starting figure for an average industrial designer.

Consideration—general observations

43. As the appellant’s loss of earning capacity was not readily amenable to mathematical calculation, it was not inappropriate for the primary judge to award a buffer for loss of earning capacity. Importantly, as the appellant was a student at the time of the accident and as he proposed entering a difficult employment market (as an industrial designer), there was no reliable indicator of his pre-accident earning capacity. Further, there was a 30 per cent chance that at some point prior to the normal retirement age the appellant would completely lose his earning capacity, but whether and when that might occur was unknown.

44. That is not to detract from the value of the mathematical figures that were available. Although the appellant’s pre-accident earning capacity was uncertain, the primary judge effectively accepted that the appellant’s employment at Questacon was a good indicator of his post-accident earning capacity: see [48] below.

45. The award of a buffer necessarily involves a significant exercise of discretion and has been said to be “intuitive”. Nevertheless, as far as possible the reasons informing the assessment should be articulated. In this case, they were.

46. In that context, we address the appellant’s four specific submissions.

Error 1: Estimate of loss over 30 years rather than to 67 years of age

47. One matter that informed the primary judge’s assessment of an appropriate buffer was a calculation of the difference between the appellant’s current earnings at Questacon and what he would have earned as an inexperienced industrial designer, carried forward to the usual retirement age of 67.

48. The primary judge found it “impressive” that the appellant was working, had worked in the same job for two years and found some enjoyment in his work. His Honour accepted that the appellant had struggled in the more demanding workplace of Fink & Co. We infer that his Honour considered that, at Questacon, the appellant was working at about his current earning capacity. The primary judge had evidence of the appellant’s likely earnings as an industrial designer, albeit that it was not necessarily easy to obtain such work.

49. Consequently, it was reasonable for the primary judge to undertake the mathematical exercise that he did undertake. The respondent did not submit otherwise.

50. His Honour undertook the exercise not for the purpose of making a mathematical assessment of loss of earning capacity, but to give context to the assessment of an appropriate buffer. It was one of a number of matters taken into account when assessing the buffer.

51. Through an oversight, the calculation was impacted by a factual error (that the appellant’s remaining working life was 30 years rather than 40 years). It is obvious that the primary judge meant to estimate future economic loss over 40 years, until the appellant reach the usual retirement age of 67. His Honour said as much. At the date of the trial, the appellant was only 27 years old. The primary judge meant to apply the forty-year multiplier of 1,224.2, which would have yielded a figure of $337,450.73— significantly more than the figure of $286,152.27 to which his Honour had regard.

52. As the calculation was a matter that was apparently significant to the assessment of the buffer and the calculation was significantly impacted by the factual error, the appeal should succeed on this point.

53. The parties agree that the matter should not be remitted and that this Court should award the amount that it considers appropriate to compensate the appellant for loss of earning capacity and the associated loss of superannuation benefits.

54. Although it is not necessary to consider the remaining three alleged errors, we will consider them briefly. On the appeal, the appellant did not develop the ground contained in the notice of appeal that the award for future economic loss was manifestly inadequate, and we will not address it.

Error 2: Approach to finding of 30 per cent chance of total loss of work

55. The primary judge identified as a relevant consideration the fact that there was a 30 per cent chance that, at some stage, the appellant would lose his earning capacity. His Honour was apparently unable to predict whether or when that would occur.

56. However, it remained a relevant consideration, and one that his Honour said that he took into account when assessing the buffer.

57. This complaint is not made out.

Error 3: Allowance for vicissitudes

58. Where a buffer is allowed for future economic loss, there is no discount for “vicissitudes” because they are factored in to the amount of the buffer.

59. In assessing the buffer, his Honour made no reference to “vicissitudes”. Rather, his Honour referred to the individual factors that he took into account in arriving at the buffer, including the lack of availability of employment and the poor remuneration in the industrial design field.

60. The appellant did not develop his complaint that the primary judge had erred in relation to “the ordinary discount of 15 per cent for vicissitudes” when assessing the buffer for future economic loss. Ultimately, the complaint was more or less abandoned.

Error 4: Starting figure for an average industrial designer

61. The appellant submitted that the primary judge had used the wrong starting figure of $1,103.00 net per week for an average industrial designer and then used that figure to calculate the “differential” of $275.65.

62. It was not unreasonable for the primary judge to take a conservative approach to the calculation.

63. This complaint is not made out.

Assessment of future economic loss

64. We respectfully adopt the primary judge’s approach to the assessment of damages for future economic loss (loss of earning capacity).

65. We take into account the considerations at [631]–[644] of his Honour’s reasons and the facts and findings supporting those considerations that are stated elsewhere in the reasons. In particular, his Honour’s finding that there was a 30 per cent chance that the appellant would have to retire early and would, at that point, lose all earning capacity, is important and serves to increase the buffer that might otherwise be allowed.

66. In relation to the calculation undertaken by the primary judge at [643], we consider that the appellant’s earnings at Questacon are useful in determining his current earning capacity and that it is reasonable to compare that capacity with the earning capacity of an industrial designer of limited experience, albeit that it may be difficult to obtain such employment and the appellant had no pre-accident history of successful employment as an industrial designer.

67. In performing a calculation similar to that undertaken by the primary judge, it would have been more helpful to compare the appellant’s 2016/2017 net earnings with the 2016/2017 net earnings of an industrial designer of about three years’ experience. We do not have evidence of the latter amount. However, as the exercise is only indicative and it can provide only limited guidance, the absence of such evidence does not matter greatly.

68. As stated above, applying the correct multiplier of 1,224.2 to a differential of $275.65 yields a figure of $337,450.73. Applying the correct multiplier of 1224.2 to a differential of $532.15 (the figure obtained by deducting $827.35 from $1359.50) yields a figure of $651,458.03. A mathematical approach to the assessment of future economic loss would usually entail a reduction for vicissitudes of 15 per cent. Applying such a deduction to each of the two figures, the outcomes are $286,833.12 and $553,739.33 respectively.

69. We reiterate that these calculations are simply one matter that we take into account in assessing the appropriate buffer.

70. In our view, the appropriate buffer is $450,000.00.

71. The associated loss of future superannuation is $63,000.00 ($450,000.00 x 14 per cent).

Future commercial care and need for case manager

72. At the trial, the appellant made no claim for current commercial care or a current case manager. Rather, he claimed that he would require such services when he began to live alone (or “independently”). At the time of the trial he was living in a group house.

73. The primary judge accepted the evidence of Ms Alcock, an occupational therapist, that the appellant would need help from a case manager to assist him vocationally through the more difficult times when there were competing pressures at work and domestically (such as when getting a divorce).

74. His Honour also accepted Ms Alcock’s evidence that, if the appellant was not in his current structured environment, he would need help with gardening, housework and the like.

75. His Honour said:

76. I find he is able to maintain a normal life under his current regime, but that when there are changes to it, as there must be at times throughout his life, he will need help. Such changes will include when he moves into a home of his own, or lives with someone with whom he is in a romantic relationship. 608. Precisely what that help must be is difficult to identify and value. 609. The reasons for that include that the expert witnesses for the plaintiff are not as one on what is needed or when. Dr Buckley for example sees the need for a very large amount of care. I do not consider that view is in accord with the plaintiff I have had the opportunity of watching give evidence over a day and a half. 610. The plaintiff, to my observation, is intelligent and resourceful. His family, to my observation, is a close, loving, and supportive one. I am satisfied his parents will offer him good counsel and make themselves available to help him to the best of their ability. They are still relatively young, but their life expectancies are obviously much less than that of the plaintiff. He has two sisters and a brother. From my observations …they will also be supportive. But they have their own lives to live and it must be assumed there is a limit to what they can do to help him.

77. Later in his reasons, the primary judge said:

78. Of the variety of recommendations by experts for the plaintiff, that of Professor Brew seems to me the most helpful, as it seems to me the most realistic, and in accord with my own observations of the plaintiff and his family. 667. Professor Brew said he will function in a predictable and structured environment, but will be vulnerable in every day life, so will need some form of assistance. 668. He said: I think he requires someone in a supervisory capacity to act as his protector, if you like, to ensure that he remains in a structured environment: that he’s not vulnerable to be exploited by people who would take advantage of the fact that he has poor social interaction and poor appreciation of cues. 669. He said the time would be a matter for negotiation. It would be done in consultation with various professions… leading to a health plan to work from. 670. Dr Buckley said that in the long run people with brain injuries tend to reclusivity and pay less attention to domestic hygiene, personal hygiene and nutrition. He sees the need for a case manager for eight hours per month for the first six months of a new arrangement, such as a new dwelling, allow for this rate every five years, and four hours per month in the other years. He also saw the need for home care of seven hours per week. I took that to be in the long run, rather than straight away. … 671. Dr Jungfer in her report of 7 June 2016 spoke of the need for “attendant care support”, being supervision, prompting and monitoring morning and night. She thought an hour in the morning and one or two in the evening was “reasonable”. 672. Ms Alcock says TBI patients have trouble with fatigue, planning, and the like, so need a case manager, preferably a medical professional with a special interest in working with brain damaged people. She says the case manager would help facilitate referrals to specialists, therapists and others and help implement the arrangements. She estimates 52 hours per year, 12 hours travelling time, and three hours of report writing, a total of 68 hours per year. She says $175 per hour for management and $192.50 for travel and report writing are current rates.

79. In the context of this evidence, the primary judge found as follows:

80. I am satisfied the plaintiff has proved on the balance of probabilities that while he has no current need for [case management assistance], there is a significant chance that he will have such a need. The difficulty is to say when that may occur. 674…. [H]e is still quite young entirely physically fit. I consider 30 is too early as a starting point … His parents are relatively young, and at the moment perform this role. 675. I consider a more realistic starting age to adopt is 47. The claim is for two hours per week. I am inclined to the view that while there may be times when two hours would be needed, for most of the time one hour would suffice. 676. The view I have reached is that there is a 30 per cent chance that from age 47 onwards, in twenty years time, for his then life expectancy, he will need two hours per week of case management. 677. Assuming $1 per week from age 47 for 38.22 years (current life expectancy being 58.22) on the deferred tables, $1 being 0.554 deferred for 20 years, then at two hours per week at $175 per hour the lump sum undiscounted would be $385,364. 678. Thirty percent would be $115,609.20. Having in mind the many contingencies I would award for this head, $100,000. Future commercial care 679. In his schedule of damages the plaintiff claims $1,029,407 for future commercial care. This claim is based on $55.52 per hour (Alcock report) deferred for three years. The assumptions include a daily cost of $111.04, a weekly cost of $777.28 with a multiplier of 1447.4 and a deferred value of 0.915. 680. Based on my above findings, I consider there will be a need for some commercial care of the type referred to by, inter alia, Dr Buckley and Ms Alcock. 681. Thirty percent of the sum claimed is $308,822. Having in mind here too the many contingencies, I consider the appropriate sum to award under this head is $200,000. (Emphasis added)

Appellant’s submissions

78. In written submissions, the appellant contended that the primary judge had erred by deferring future commercial care and the provision of a case manager for 20 years and then discounting those figures for vicissitudes contrary to Sharman v Evans (1977) 138 CLR 563 (Sharman), 587–588.

79. In oral submissions, the appellant did not develop an argument about the deferral period. The appellant’s contentions were:

(a) The discounts of about one third for future commercial care ($308,822.00 to $200,000.00) and about 15 per cent for future case management ($115,609.00 to $100,000.00) to allow for “the many contingencies” were unwarranted, particularly as the primary judge did not identify the contingencies.

(b) In the context of the primary judge’s factual findings, the awards for future commercial care and future case management were manifestly inadequate.

80. In support of the proposition that, when assessing future care, there should be no discount for vicissitudes, the appellant relied on a passage in Sharman at 587, where Gibbs and Stephen JJ said:

Once a probable life expectancy is determined [the vicissitudes of life] enter not at all into the assessment of future hospital expenses or the conventional amount for shortening of life expectancy but are significant in the case of loss of earning capacity.

81. Discounting future care: alleged inconsistency with SharmanThe appellant’s reliance on the above passage is mistaken. In Sharman at 588, Gibbs and Stephen JJ accepted that “hazards of life, including illness and disablement” should be taken into account. That approach was consistent with a general principle discussed in Jobling v Associated Dairies Ltd [1982] AC 794 (Jobling) (which concerned the assessment of damages for loss of earning capacity). At 814, Lord Keith said:

In considering how matters might have been expected to work out if there had been no accident, the “vicissitudes” principle says that it is right to take into account events, such as illness, which not uncommonly occur in the ordinary course of human life. If such events are not taken into account, the damages may be greater than are required to compensate the plaintiff for the effects of the accident, and that result would be unfair to the defendant.

82. In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 (Malec) at 645, Deane, Gaudron and McHugh JJ spoke of a reduction “to take account of the chance that factors, unconnected with the defendant’s negligence” would have necessitated a level of care similar to that required because of the defendant’s negligence.

83. Whether it is referred to as a discount for the “hazards of life” or “factors unconnected with the defendant’s negligence” (or even “vicissitudes”), there is no doubt that damages for future care (other than damages awarded by way of a buffer) should be discounted to compensate a claimant only for the effects of the accident and to avoid an unfair result to a defendant.

84. In this case, provided that the award was not in the nature of a buffer, the primary judge was entitled to discount the award for future care and future case management (which is really just an aspect of future care) by taking contingencies into account.

Consideration—future case management

85. In relation to the award for future case management, although at [676] the primary judge used the expression “a 30 per cent chance … [the appellant] will need two hours per week of case management”, we consider that his Honour meant that, in his estimation, for 30 per cent of the time the appellant would need two hours per week of case management. In adopting 30 per cent, his Honour no doubt took into account his finding that, for most of the time, one hour would suffice. The figure of $115,609.20 was not a buffer but an estimate of actual cost.

86. Once the award for future case management is understood to be a mathematical assessment of actual cost, there can be little complaint about the discount of about 15 per cent for contingencies, i.e., factors that, absent the defendant’s negligence, may have resulted in the appellant developing a similar need for a case manager as that flowing from the defendant’s negligence.

Consideration—future commercial care

87. In relation to future commercial care, at [680] the primary judge accepted that, in the future, the appellant will need “some commercial care” of the type identified by Dr Buckley and Ms Alcock. Ms Alcock said that, when not in a structured and supported domestic environment, the appellant will need assistance with domestic cleaning, gardening and similar activities. Dr Buckley said that, in the long run, people with brain injuries pay less attention to domestic hygiene, personal hygiene and nutrition; consequently, he saw a need for significant home care in the future.

88. Given that there was no current need for domestic care and the estimate proceeded on the basis of a deferral of only three years (until the appellant was 30 years old), it is unsurprising that the primary judge found that the appellant’s future need for commercial care fell well short of the claim for 14 hours per week.

89. The primary judge referred to $308,822.00, being 30 per cent of the sum claimed by the appellant. This would equate to a need for 4.2 hours per week from 30 years of age. Having regard to “the many contingencies”, his Honour awarded $200,000.00.

90. The appellant contended that the figure of $308,822.00 was a mathematical calculation of the cost of future commercial care and there was no legitimate basis for the large discount of about one third.

91. If the figure was a mathematical calculation of loss, the submission may be correct.

92. The respondent contended that, like the calculation used when assessing the buffer for future economic loss, the figure of $308,822.00 was merely as a rough calculation that was just one consideration that was used to arrive at a buffer of $200,000.00.

93. If so, the appellant has no legitimate complaint about discount for contingencies; there was none.

94. It is well established that a judge is required to give reasons “sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”, inter alia, to enable an appellate court to discharge its statutory duty on an appeal from the decision: Douglass v The Queen [2012] HCA 34; 86 ALJR 1086, recently applied in DL v The Queen [2018] HCA 26; 92 ALJR 636.

95. Because the primary judge failed to explain the relationship between the figure of $308,822.00 and the award of $200,000.00, it is not clear to us whether his Honour erred in principle. Consequently, we find error in the failure to give adequate reasons.

Reassessment of award for future commercial care

96. At the time of the trial, the appellant was a young man who was employed and living independently in a group house. He made no claim for current gratuitous or commercial care.

97. However, on the facts found by the primary judge and having regard to the experts whom the primary judge accepted and whose findings are summarised at [87], the appellant will need domestic care provided on a commercial basis from 30 years of age.

98. We would not allow as much as 4.2 hours per week from 30 years of age ($308,822.00); at 27 years of age, having regard to his living circumstances the appellant did not require any domestic assistance. Having independently considered the evidence, we conclude that it is appropriate to award a buffer of $200,000.00 for this head of damages.

Manifest inadequacy of awards for future care and future case management

99. For the reasons noted at [10] above, it may be difficult to establish that, in making a decision that is akin to the exercise of a discretion, a trial judge has arrived at an outcome that is outside the available range of outcomes.

100. We were not taken to comparable cases that supported the contention of manifest inadequacy in relation to the awards for future commercial care and future case management.

101. The appellant has not made out the claim of manifest inadequacy.

Future Gratuitous Care

102. In relation to past assistance provided gratuitously by the appellant’s parents (accompanying the appellant to medical appointments, visiting him in hospital and providing home care for a fortnight), the primary judge allowed $4,010.51, the full amount of the claim.

103. The appellant contended that the primary judge should have made an allowance for future gratuitous care or, at least, should have explained why he made no allowance.

104. This argument is unmeritorious.

105. The schedule of damages submitted to the primary judge contained no claim for future gratuitous care (as opposed to future commercial care and the cost of a case manager).

106. There was little, if any, evidentiary basis establishing a current or future need for gratuitous care in addition to commercial care. The appellant’s future care needs will be met by the provision of commercial services.

Orders

107. The appeal is allowed in part.

108. For future economic loss, in lieu of the amount of $200,000.00, the appellant is awarded $450,000.00.

109. For future superannuation loss, in lieu of the amount of $28,000.00, the appellant is awarded $63,000.00.

I certify that the preceding one-hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell and Justices Loukas-Karlsson and Charlesworth.

Associate:

Date: