7 Senior Counsel for the appellant contended that in finding contributory negligence based on the appellant's failing to observe or inquire about the state of intoxication of the respondent who had been partying at a club over a period of several hours, the Trial Judge failed to consider the dilemma the appellant was in at 4.30 am on a Saturday morning at Parramatta after the club had closed; the appellant's home was at Lakemba. It was contended that the appellant had travelled to the club in the respondent's car and the only obvious way to return home was to travel in his car, and that it was unsafe for her to leave on her own at that hour. It was further contended that it was readily understandable for the appellant to be thinking of how all three passengers were to get home, not merely of how she was to do so herself. Ms Patterson, who was then aged 17 and had accompanied her from Lakemba, and Mr Virk, who was also older than the appellant, were content to travel in the respondent's car with him as the driver and thus it was understandable for the appellant to take the others' lead and trust their judgment.
8 In developing this submission orally it was contended that the Trial Judge did not take into account two matters which were dealt with in submissions on behalf of the appellant at the trial. The first matter relates to the fact that the appellant, in the circumstances and at the time of night, had no alternative but to accept a ride home in the only vehicle which was available with the respondent who brought her to the club. The second matter relates to the fact that both the appellant and the two other passengers called on the respondent, during the course of the journey, to stop and let them out, and that he did not do so. Although the second matter was referred to in the Trial Judge's reasons, it was not expressly brought under consideration when disposing of the issue of contributory negligence. Senior Counsel referred extensively to the terms of the submissions which had been put to the learned Trial Judge. However it is not the obligation of the Trial Judge to deal explicitly with every submission, and in my opinion the reasons given show quite sufficiently and comprehensively the grounds upon which the decision was based.
9 Senior Counsel for the respondent contended, as was altogether clear, that the evidence showed that the appellant was a voluntary passenger in the vehicle on the journey from the club at Parramatta and that there was no basis for any view that she was compelled by any exercise of parental or other like control to travel in the car, or otherwise compelled at all. Counsel contended that, given that the appellant was clearly a voluntary passenger, the appellant was under an evidentiary onus to demonstrate that in effect she had no other choice than to become a passenger in the car. Senior Counsel further contended that there was no basis in the evidence for finding that circumstances meant that the appellant had no choice but to accept a lift from the respondent, and went on to observe that there was no real evidence of the circumstances at all, such as evidence indicating where the club was, the length of the journey, the availability or unavailability of public transport, taxi transport, money to pay for them, telephone communication with her parents at Lakemba; or any other circumstances at all which might show that the apparently clear prima facie position that she was a voluntary passenger did not give a full understanding of her position, or show that she in fact had no other way to get home. Counsel contended that the submissions to the Trial Judge relating to circumstances of compulsion, to which the appellant's counsel referred, were not based on any examination in the course of evidence of the supposed circumstances of compulsion.
10 Neither in the evidence in chief of the appellant nor in cross-examination of her was there any explanation or examination of the circumstances in which she was brought to the club at Parramatta, and she chose to travel in the vehicle driven by the respondent; nor was there any establishment of what in detail happened at the club and over what period of time were the respondent and the appellant in the club, or of circumstances which qualified the apparent voluntary nature of the appellant's decision to leave the club as a passenger in the vehicle driven by the respondent. As it was the appellant's clear and firm position, later accepted by the Trial Judge, that she had no relevant memory, the absence of exploration of these circumstances by counsel for either party was reasonable, and notwithstanding the legal onus of proof the respondent's counsel was not under a duty to confront the appellant in cross-examination with contentions about facts with which it was her evidence that she was unable to deal.
11 Senior Counsel for the respondent contended to the effect that, on the state of the evidence, the question for decision before the Trial Judge had the dimension within which her Honour dealt with it, that is, that the appellant was a voluntary passenger in the vehicle driven by the respondent when he was intoxicated to such a degree that the risk associated with being driven by him should have been perceived; and that this is a perception within the knowledge and understanding of ordinary 14 year-old children. There is no challenge to her Honour's view that the issue was whether the appellant breached the standard care to be expected of an ordinary child of the same age. In my opinion no error has been shown in the Trial Judge's finding of contributory negligence, and the assessment of 12% is not open to criticism as excessive. This finding fell well within the wide range of reasonably available findings, and if anything, 12% is modest.
12 I now turn to deal with the findings by the Trial Judge in relation to the award for future economic loss. The approach now taken in New South Wales to the assessment of damages for loss of future earning capacity appears from the judgment of Clarke JA in Norris v. Blake (by his Tutor Porter) [No. 2] (1997) 41 NSWLR 49; I particularly refer to pages 63E-67C. It is clearly recognised that the nature of the subject defies precise calculation: see 66D; and see too in Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638 at 639 where Brennan and Dawson JJ stated to the effect that the Court must speculate to some extent.
13 In dealing with future economic loss, her Honour reviewed evidence dealing with the appellants' employment prospects if she had not been injured. This review includes the following passages (Red 30):
[71] Associate Professor Athanasou, who was qualified for the defendant, stated the obvious proposition that, disregarding the accident, the plaintiff probably would not have completed her schooling and would have faced severe problems in relation to future employment. In his opinion, the best case scenario was that the plaintiff might ultimately have been able to secure some unskilled employment on a sporadic basis. However, she was at significant risk of long-term unemployment. He referred to the average earnings of full-time adult female laundry workers. I consider this view of the plaintiff's pre accident employment prospects to be somewhat pessimistic given the many factors (e.g. financial pressures, social pressures, improvement in her conduct disorder and change in the availability of Social Security) which, but for the accident, may have impacted upon the plaintiff during her working lifetime so as to promote the prospects of the plaintiff obtaining and maintaining employment.
14 Her Honour's conclusion is as follows: (RED 31-32)
[74] In my view, but for the accident, over her working lifetime the plaintiff would probably have worked in unskilled or semi skilled positions of a physical nature, although she would not have been constantly employed and there may have been long periods of unemployment. She may have gained work as a hairdresser's apprentice, although her conduct disorder may have been an impediment as far as dealing with the public was concerned. The plaintiff's lack of educational achievement and conduct disorder would have precluded her from obtaining constant well paid employment. I reject the plaintiff's submission that, but for the accident, she would have obtained for School Certificate. That was a possibility, but the plaintiff's pre-existing conduct and absenteeism suggest that she probably would not have obtained her School Certificate.
[77] In assessing the plaintiff's future economic loss, the court is constrained by the provisions of ss70 A and 71 of the Motor Accidents Act 1988. Having regard to the plaintiff's age, the fact that her pre-existing conduct disorder was not totally disabling and the fact that there was and is a possibility of improvement in relation to that disorder, I am satisfied that the threshold set by s70A is met. Because of the plaintiff's age of the date of the accident and to her conduct disorder, it is extremely difficult to assess the plaintiff's loss, but it is substantial. I assess it at $100000.
15 Senior Counsel for the appellant contended to the effect that the assessment of $100,000 was not within a reasonably available range of assessment of damages for future economic loss. The course of argument suggested to me that, as a means of testing whether the Trial Judge's assessment is within a reasonably available range, I should calculate the discount which can be derived or calculated from the present value of the income which the appellant might have been expected to receive, in the course of her working life of 45 years from her next birthday at the time of trial (her twentieth), had she worked full time and earned $477.60 gross income per week which, as appears in the report of Associate Professor Athanasou at Black 109, was shown by Australian Bureau of Statistics Data of May 2000 to be the average weekly ordinary time earnings for full-time adult female laundry workers. This figure was chosen by Professor Athanasou to illustrate his statement "Taking a best case scenario it is possible that some of these social problems may have resolved with maturity and/or the effluxion of time so that she might ultimately have been able to secure some unskilled employment on a sporadic basis." (Blue 109) We were told in submissions by the appellants' counsel that the net amount receivable per week after taxation on the 2004/2005 tables was $399. We were also told by the appellant's counsel that the 5% multiplier for a working life of 45 years from age 20 was 950.4. This produces an implied discount rate of 73.7% as follows:
To find the discount rate implied by a value of $100,000:-
$399 x 950.4 x D = $100,000
D = 100,000 ÷ 399 ÷ 950.4 = 0.263
ie. a discount of 73.7%
16 In another attempt at reducing to mathematical expression a piece of reasoning which is inherently incapable of precision, I observe that following the conventional method and using the conventional discount for vicissitudes of 15%, the present value of future economic loss, when calculated by taking net earnings of $399 per week and a multiplier of 950.4, is $322,328. The details of the calculation are as follows:
A discount rate of 15% expressed as a multiplier is 0.85.
If 15% is applied, loss of earning capacity of $399 per week net of tax is valued at
$399 x 950.4 x 0.85 = $322,328
$100,000 is about 31% of $322,328. To reach a valuation of $100,000 implies a discount of 73.7% in place of the conventional discount of 15%. The conventional discount rate of 15% recognized periods of unemployment among the ordinary vicissitudes of life.
17 It was contended that the assessment was far too low having regard to the primary findings. Some observations by senior counsel for the appellant were to the effect that the Trial Judge had failed to state the reasons for the assessment of $100,000. In relation to the nature of the exercise of assessment and the difficulties of any clear or cogent articulation of the grounds for an assessment, I do not think that this contention was correct; in my view the Trial Judge was not required to adduce a line of reasoning, purportedly mathematical but necessarily replete with hypothesis and uncertainty, to support the assessment.
18 A review of the mathematical demonstrations in the preceding paragraphs will immediately show their vulnerability. The average weekly ordinary time earnings for a full-time adult female laundry worker is drawn from statistics of May 2000; the deduction for taxation is based on the taxation rates of 2004/2005; income tax is subject to assessment according to circumstances personal to each taxpayer. The factor 950.4 is based on life expectancy statistics from which, of course, actual individual outcomes vary up and down in a wide range. Adoption of 5% in calculating the multiplier is arbitrary and debatable. The conventional 15% discount for vicissitudes derives its validity from its being conventional; its source is conventional judicial wisdom and not mathematical demonstration. I gave this account of the use of a 15% discount factor in FAI Allianz Insurance Ltd v. Lang [2004] NSWCA 413 at [18]:
[18] The Trial Judge adopted the conventional 15% without discussion or articulation of reasons. This is the usual course. The range of contingencies and vicissitudes allowed for by the conventional allowance of 15% is very wide; it is an expedient and approximate resolution of many imponderables, and the difficulty of producing a justification for any greater or lower figure in a particular case tells strongly against departing from the conventional figure. The allowance of a 15% discount for vicissitudes appears to have the approval, or to escape the disapproval, of the High Court in Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485; see Dawson, Toohey, Gaudron and Gummow JJ at 497 to 499, where their Honours, after noting some difficulties of assessing vicissitudes and referring to earlier authorities, said "Even so, the practice in New South Wales is to proceed on the basis that a 15% discount is generally appropriate, subject to adjustment up or down to take account of the plaintiff's particular circumstances." See also Sullivan v Gordon (1999) 47 NSWLR 319 at 338 (Beazley JA); State of New South Wales v Moss (2000) 54 NSWLR 536 at 544-545 [32, 33] (Mason P) and at 563 [100] Heydon JA; and Chung v Anderson [2004] NSWCA 321 at [80-81] (McColl JA) and particularly at [81] where McColl JA said: "An assessment of the allowance which should be made for vicissitudes is a quintessentially impressionistic exercise."
19 The apparent precision of the calculations is spurious, and as means of assessing damages for future economic loss the calculations have few advantages over the method adopted by her Honour, who made an overall assessment, unsupported by explicit calculations, as an exercise of judicial wisdom and experience. However I attribute some value to the exercise, largely because it is a frequently used judicial method to carry out such exercises when assessing damages. Such an exercise can only produce an imprecise indication of the order within which assessment should be made.