The Nominal Defendant v Lane

CATCHWORDS : Motor vehicle accident - unregistered vehicle - claim against Nominal Defendant - LIABILITY - claim if vehicle was capable of being registered after "repairs of minor defects" - identification of defects - whether minor defects - whether error in applying substantially economic test of ease and cost of repair of defects - no error - CONTRIBUTORY NEGLIGENCE - plaintiff and driver both drunk - whether judge paid regard to plaintiff's subjective appreciation of driver's condition - found plaintiff knew or ought to have known of driver's condition - no error - DAMAGES - plaintiff brain damaged - probable that plaintiff would have worked as nursing assistant - whether error in allowing a sum for possibility that plaintiff would have become enrolled nurse - consideration of s 126 of Motor Accidents Compensation Act - whether permissible to allow for possibility that future circumstances would be better than most likely future circumstances - can make such an allowance - result correct although requirements of s 126 not dealt with - RESPITE CARE - gratuitous care for ten years then professional care - whether error in allowance for respite care for period of care by professional carers - error made - allowance made for respite care for period of gratuitous care. D Applin v The Nominal Defendant [2004] NSWCA 217; Hodgson v Crane (2002) 55 NSWLR 199; Joslyn v Berryman (2003) 214 CLR 552; CASES CITED : K Mart Australia Ltd v McCann [2004] NSWCA 283; MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Norris v Blake (No 2) (1997) 41 NSWLR 49; Penrith City Council v Parks [2004] NSWCA 201. PARTIES : The Nominal Defendant - Appellant Farren Lane - Respondent FILE NUMBER(S) : CA 40132/04 COUNSEL : D J Russell SC & W Chipchase - Appellant P Semmler QC, P Mahoney SC & G Young - Respondent SOLICITORS : Sparke Helmore, Newcastle - Appellant Stacks/Goodkamp

LOWER COURT District Court JURISDICTION : LOWER COURT DC 7682/02 FILE NUMBER(S) : LOWER COURT Finnane DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40132/04 DC 7682/02

GILES JA IPP JA TOBIAS JA

Wednesday 17 November 2004 THE NOMINAL DEFENDANT v LANE Judgment 1 GILES JA: The respondent was a passenger in a motor vehicle driven by Mr Layne Willis. On 16 October 1999 the vehicle hit a cow about ten kilometres out of Goodooga. It overturned, and the respondent was thrown from the vehicle and suffered serious head injuries leaving him with brain damage. 2 The vehicle was unregistered. The respondent brought proceedings against the appellant pursuant to s 33 of the Motor Accidents Compensation Act 1999 ("the Act"). The appellant put in issue whether the proceedings had been properly brought against it, denying that the vehicle was a "motor vehicle" within the definition in s 33(5). Subject to that, it admitted breach of duty of care, pleaded contributory negligence and put the respondent to proof of his damages. 3 The proceedings were heard by Judge Finnane QC over five days in late September 2003. His Honour gave judgment on 24 December 2003. He held that the vehicle was a motor vehicle within s 33(5). He found that there had been contributory negligence whereby the respondent's damages should be reduced by 40 per cent. He assessed damages at $3,838,188 prior to reduction plus a fund management allowance of $385,469. The damages were - Non-economic loss $329,000 Past out-of-pocket expenses $49,436 Future out-of-pocket expenses $69,097 Past loss of wages $43,248 Future economic loss $173,184 - loss of wages - loss of expectation of becoming an enrolled nurse $50,000 Loss of superannuation benefits $5,247 - past $17,860 - future Past care $148,400 Future care $297,288 - by family over next 10 years $2,386,999 - thereafter by professional carers $268,429 - respite care $3,838,188 4 The appellant appealed against the holding that the vehicle was a motor vehicle within s 33(5) of the Act, against the extent of contributory negligence found, and against the assessments of damages for non-economic loss, for future economic loss (loss of expectation of becoming an enrolled nurse) and for future care (by professional carers and respite care). The respondent cross-appealed against the finding of contributory negligence.

Motor vehicle 5 By s 33(1) of the Act proceedings could be brought against the appellant claiming damages for injury "caused by the fault of the owner or driver of a motor vehicle that is not an insured motor vehicle in the use or operation of the vehicle … ". By s 33(3) the appellant was liable as if it were the owner or driver of the motor vehicle. By s 33(5) - "(5) For the purposes of this section, and any regulations made for the purposes of this section:

motor vehicle means a motor vehicle: (a) that is exempt from registration, or (b) that is not exempt from registration and that: (i) is required to be registered to enable its lawful use or operation on a road in New South Wales, and

(ii) immediately before the motor accident occurred, was capable, or would, following the repair of minor defects, have been capable, of being so registered." 6 The vehicle was not exempt from registration and was required to be registered for lawful road use in New South Wales. The issue was whether immediately before the accident it was capable of being registered following the repair of minor defects. 7 The vehicle was a 1961 International Scout 4WD. It had been registered until 29 March 1994, and although unregistered thereafter continued to bear the number plates from that registration. Mr Stephen Dean bought it as an unregistered vehicle in Lightning Ridge in 1999, intending to fix it up, register it and use it on four wheel drive expeditions. He did not do so, and later in 1999 sold it to a wrecker in Lightning Ridge. 8 The wrecker put the vehicle outside its yard for sale as a complete unit. Mr Willis bought it in early October 1999 and brought it to Goodooga. On 16 October 1999 he invited the respondent to accompany him on a drive to nearby Hebel. Both men were well affected by alcohol. The accident happened on the way to Hebel. 9 The first step was to identify the pre-accident defects in the vehicle material to registration. Of the lay and expert evidence of the condition of the vehicle the judge acted on that of Mr Dean, Mr Willis through his police record of interview, a police vehicle examiner who inspected the vehicle some time after the accident and provided a report, and Mr Neil Gillies, a highly qualified mechanical engineer who provided reports which included his assessment, from statements, the police vehicle examiner's report and a considerable number of photographs of the vehicle, of its likely condition before the accident. 10 The judge found - "What Mr Willis said had to be done, taken in conjunction with the findings of the Police Vehicle Examiner and Mr Gillies, satisfies me that wiring to the lights had to be fixed, the locks to the doors had to be fixed and the seat belts had to be replaced. Apart from that the vehicle was in reasonable repair. In my opinion, if those repairs had been effected, the vehicle immediately before the accident would have been capable of being registered." 11 It is unnecessary to refer to the contest at the trial over other suggested defects or, save to the extent below, to the underlying evidence. The appellant accepted that these findings were open to the judge, and did not submit that he should have found more extensive material defects in the vehicle. 12 Mr Dean gave evidence that the tail-lights were not working and required the replacement of wiring. He said '[w]e had to rewire from where they run over something; they've just ripped wires out", and that there was "not much involved " in doing so. In the record of interview Mr Willis said that he believed that "electrics" needed to be fixed, and that when driving to Hebel he stopped to check for water and "adjusted the headlights … set the lights so that I had a bit of better vision". In his principal report Mr Gillies said that "high beam was mentioned by Layne Willis as not being in operation on the night of the incident", but I do not think that is correct. The police vehicle examiner's report is difficult to read, but seems to say under "electrical system" that "wiring damaged (indecipherable) N/S HL(?) dislodged from mounts wires still connected". If this referred to a dislodged headlight, it may have been dislodged in the accident. In finding that "wiring to the lights had to be fixed" the judge apparently meant repair of the wiring to the tail-lights. 13 Mr Dean gave evidence that the door latches were worn and were not latching properly when the doors were closed. He said that he could fix them by replacing them with handles taken from a F100 truck. Mr Willis' record of interview included - "Snr Constable Elkins: I've further been told that in order to keep the doors of the vehicle shut you needed to tie them closed with a seat belt. Can you tell me anything about that? Layne Edwin Willis: Once I did it to … that's the two places that had to be put from the chassy [sic] to the body, that would have solved that problem. That's according to the bloke that I bought it off, and that was my next job to get done - the two places put up from the … from the chassy [sic] to the … to the actual body, the … the hood area." 14 The police examiner's report said nothing of the door latches. Photographs of the vehicle after the accident showed the seat belt around the door handle of the near side door. In finding that "the locks to the doors had to be fixed" the judge was taking up the evidence of Mr Dean. 15 The police vehicle examiner's report said that one seat belt was serviceable but the other was "jammed in rest", and stated "no clasps located in vehicle". Mr Gillies took that to mean that the buckles of the seat belts to which tongues on the belts themselves connected were not present, and the judge appears to have done the same. Mr Dean said that there were clasps and he used the seat belts. Mr Willis' record of interview contained nothing more as to seat belts. Seat belts had not been required when the vehicle was originally manufactured in 1961, and for reasons he gave Mr Gillies was uncertain whether the vehicle's later history meant that seat belts were required. It is not clear why the judge implicitly held that they were, in his finding that "the seat belts had to be replaced". 16 The question then was whether the defects found by the judge were such that, within s 33(5)(b)(ii) of the Act, immediately before the accident the vehicle was capable of being registered "following the repair of minor defects". 17 The appellant's case before the judge had included that the vehicle could not be registered because it did not have an engine number, but the judge found that it did. There was no appeal in that respect. The judge otherwise found (this includes the finding earlier set out) - "It was also contended that it could not have been so registered because there was so much work to be done to it, that the repairs could not properly be regarded as 'minor defects'. In my opinion, I am entitled to rely on the evidence of Mr Gillies that the repairs to be done were properly classifiable as 'minor defects'. Mr Dean's description of what had to be done, I have already said could be regarded as minor repairs. What Mr Willis said had to be done, taken in conjunction with the findings of the Police Vehicle Examiner and Mr Gillies, satisfies me that wiring to the lights had to be fixed, the locks to the doors had to be fixed and the seatbelts had to be replaced. Apart from that the vehicle was in reasonable repair. In my opinion, if those repairs had been effected, the vehicle immediately before the accident would have been capable of being registered." 18 The reference to Mr Dean's description and minor repairs was to Mr Dean's evidence as to the tail-lights and door latches, plus a windscreen wiper, as to which his Honour had earlier said "if that was all the work that was required to ensure registration, it would have to be regarded, in my opinion, as minor repairs". 19 The reference to Mr Gillies' evidence and minor defects was at least to the principal report of Mr Gillies, in which he said - " Registration With a chassis-type vehicle, provided proper steps are taken to replace components which are worn such as to affect acceptability of function, then an acceptable vehicle condition can be relatively readily obtained. The vehicle had not been registered for some years, but had been presumably serviced/fixed to the extent to at least keep it mobile even though it was nearly 40 years old, and that illustrates the ease with which such a chassis-type vehicle can be kept mobile. The steps which would have been needed to be taken to get it registered would have been replacement of any relevant mechanical items which had worn excessively (probably including the door latch) and electrical items which were not working (and high beam was mentioned by Layne Willis as not being in operation on the night of the incident). It is not known if complete seat belts were required to be fitted. The output arm on the steering box should be replaced by a standard one. All this was probably fixable moderately economically, with possibly some parts from a wrecker given the age of the vehicle, but in any case that reduces the cost. Conclusion The vehicle was mobile before the incident and generally was probably able to be made acceptable for registration requirements moderately economically as far as could be ascertained from the documents." 20 Mr Gillies' inclusion of the output arm on the steering box can be ignored, as the judge was not satisfied that the component was in a condition which would have prevented registration, but his Honour said that even if it would have done so "it would properly be regarded as a minor defect". 21 A number of grounds of appeal were directed to error in the judge's answer to the question earlier stated. The appellant's written submissions touched on most of them, but not all. At the hearing it became apparent that there was in truth one point in the appeal in this respect, and the appellant's counsel accepted that he would fail if the point was not made good. The point is conveniently seen against the following background. 22 When Mr Gillies' reports were tendered by the respondent objection was taken, on the ground that they were not relevant because Mr Gillies had applied an economic test to whether defects were minor defects. The judge suggested that that was a legal issue, with which counsel for the appellant agreed. The judge suggested that he receive the reports provisionally, with which counsel for the appellant also agreed. Mr Gillies was cross-examined at some length, mostly on matters not material to the point in the appeal. 23 The judge said - "In essence what [Mr Gillies] said was that whether the car was examined by an authorised inspector or by RTA officials, the likely cost of fixing defects so that it could be registered would not be likely to be very expensive, as the necessary repairs would be minor. … I have reviewed his evidence, but having regard to the established facts, I see no reason to disagree with his opinions. He clearly is an expert and the opinions he expressed are relevant, reliable and acceptable. I should add that objection was taken to his report on the ground that it suggested a test of whether a vehicle can be registered in accordance with sec 33 is an economic test. The true question, it was put, is whether the defects are minor, not how much they cost. I admitted the report provisionally. I do not agree that this is what the report suggested. The report considered all the known defects and Mr Gillies made it plain that he considered they were minor defects, which could be fixed for very little money. Having considered all the evidence and in particular the evidence of Mr Willis, Mr Dean and the vehicle examiner, I am of the opinion that his evidence is relevant, admissible and of probative value. I accept his expertise and his evidence." 24 The principal report would have been admissible for Mr Gillies' assessment of the condition of the car, even if the objection had otherwise been well founded. It would be difficult to find error in the admission of the reports when, for good reason and by agreement, they were dealt with in the way I have described. In any event, Mr Gillies did not in his principal report classify the repairs necessary for the vehicle to be registered as "the repair of minor defects", according to an economic or any other test. He said, as a matter of fact, that the vehicle could be made registrable moderately economically. 25 In his oral evidence Mr Gillies was asked in cross-examination about a suggested defect in the vehicle, although not one found by the judge, whether it would be "a major repair". He replied in the negative, saying that "It's really only from the look of it, something like a quarter of an hour job with a welder." The cross-examination did not otherwise invite classification of the repairs. Mr Gillies was asked about minor defects in re-examination - "Q. Of the matters that you've outlined in your report, are all of those matters minor or some of them major? A. That's why - that's partly why I didn't write my report and talk about minor repairs, because I don't know what the legal - what was meant in the law in relation to minor repairs. HIS HONOUR: Q. What is a minor defect? A. I mean, to me one of the things I did say was that, when a vehicle has been registered before and is being registered again - somebody is trying to - major repairs are more usually things like an engine that is simply blowing so much smoke or dropping so much oil that you have to replace it or that there is so much rust that it requires major repairs on rust. With a mechanical thing like this, each part is relatively easy to access and it's easy to replace if you're mechanically minded." 26 The point in the appeal was this. The appellant submitted that the judge erred because, in determining whether defects requiring repair to enable registration were minor defects for the purposes of s 33(5)(b)(ii) of the Act, regard should be had not solely or principally to the cost of repairing the defects, but to their significance for the safe operation of the motor vehicle. For example, it was said, if there was a defective connection in the steering mechanism which could be repaired in a short time at a small cost, it was nonetheless not a minor defect because of its potential for affecting the safe operation of the vehicle and its consequential potential for bringing serious injury or death. Repair of minor defects, it was said, was not the same as minor repair of defects. It was suggested that the statutory scheme making the appellant liable where motor vehicles were uninsured was intended to be protective of persons injured by "vehicles which were in a proper condition, which could be registered if the owner had followed his obligations and registered and insured them in the first place". 27 I do not think that this last suggestion contributes to the submission, since it says nothing as to the nature of the departure from proper condition. Persons injured by the fault of the owner or driver of an insured motor vehicle can recover damages even if the motor vehicle was defective, without regard to the minor or major nature of the defects. Safety-related defects may be part of the causative fault of the owner or driver, but they need not be. The statutory scheme is not all-embracing, since it excludes recovery by persons injured by the fault of the owner or driver of an uninsured motor vehicle where the motor vehicle should be registered and has defects which are more than minor defects. It excludes recovery in other circumstances also, but in Applin v The Nominal Defendant [2004] NSWCA 217 Hodgson JA, with whom Tobias JA and Cripps AJA agreed, said at [29] that although limits were placed on the appellant's liability it was - " … appropriate to give weight to the overall purpose of giving persons injured by motor vehicles in motor accidents on roads access to insurance money; and it is of course to be remembered that the Nominal Defendant is, by s 39 of the MAC Act, given recourse against the owner and/or driver of the vehicle". 28 There is no criterion in s 33(5)(b)(ii) that the defects be or not be part of the causative fault of the owner or driver. It would be odd if the statutory scheme were to deny recovery in the case of an uninsured motor vehicle where the defects were serious in safety terms but could be repaired quickly and cheaply; if significance for safe operation were intended, some link with the causative fault of the owner or driver would be expected. 29 The word "minor" calls for an assessment of degree, without indication of the scale according to which the degree is to be assessed beyond the word "repair". "Repair" directs attention to difficulty and cost. Although this is not conclusive as to the scale, no words direct attention to a scale of safe operation of the motor vehicle. 30 Further, the simple word "minor" is used in the context of defects which may or may not have significance for the safe operation of the motor vehicle. The defects are those which prevent registration, and not all defects which prevent registration affect the safe operation of the motor vehicle. Mr Gillies referred to an engine blowing so much smoke that it must be replaced. Blowing excessive smoke is a defect preventing registration (see Road Transport (Vehicle Registration) Regulation 1998, cl 154 "visible emissions"). Only in a very extended sense is it safety-related. Replacing the engine is, however, in ordinary speech a major repair, and if the condition of the engine is a defect, it is aptly described as the repair of a major defect. Numerous other examples could be given of defects which prevent registration but are not safety-related. 31 In determining that the defects found by him were minor defects, the judge was plainly influenced by the economics of their repair. Moderate ease of repair no doubt goes with moderate cost. Mr Gillies referred also to acceptability of function and obtaining an acceptable vehicle condition. In my opinion, the judge did not err in the regard he had to the ease and relatively little cost of the repairs to the vehicle in determining whether the defects were minor defects, or in his determination that the defects he found were minor defects for the purposes of s 33(5)(b)(ii) of the Act.

Contributory negligence - appeal 32 As I have said, both Mr Willis and the respondent were well affected by alcohol. Based on blood tests taken at the hospital a little time later and the evidence of Drs Moynham and Starmer, their blood alcohol levels at the time of the accident would have been between .144 gms/100mls and .175 gms/100 mls. 33 The judge said - "Dr Starmer was of the opinion that the plaintiff would have been aware of the amount Mr Willis had consumed and would have realised he was over the legal limit for driving long before he incurred the risk of travelling as a passenger in a car driven by him. I agree with this opinion." 34 Shortly thereafter the judge said that he was "satisfied that the plaintiff knew or ought to have known that Mr Willis' driving was impaired by his consumption of alcohol". 35 The judge said as to contributory negligence - "In my opinion, the plaintiff has been guilty of contributory negligence in two respects: · He got into a vehicle driven by Mr Willis, who was clearly intoxicated by alcohol · The vehicle, whilst having provision for seat belts, clearly was defective in that the seat belts were attached to the doors and could not be used. The vehicle itself was one which had no roof. As Mr Gillies points out, even if seat belts had been worn, the plaintiff might well have been injured because the protection which a roof afforded was not there. Nevertheless, the plaintiff was clearly taking a risk getting into a vehicle with seatbelts attached to doors, particularly when it was being driven by a driver whose driving was impaired by alcohol. It was argued that I should not make a finding of contributory negligence on the basis of the plaintiff being aware of Mr Willis driving being impaired by his consumption of alcohol. Two matters were urged: · Mr Willis walked 8 kilometres into Hebel and then 8 kilometres out and says himself that by the time that he did this he did not feel he was affected by alcohol. · Because the vehicle was so far from town, the plaintiff could not reasonably be expected to have declined to become a passenger in the vehicle. Mr Willis' claim that he did not feel affected by alcohol is not a particularly sound basis for concluding that he was not so affected and I do not place any weight on it. Furthermore, the evidence of Dr Starmer as to Mr Willis' level of affectation makes this evidence unacceptable. There is no basis for finding that the plaintiff could not reasonably be expected to have declined to become a passenger in the vehicle after it left Hebel and before it hit the cow. The plaintiff was but a short distance from Hebel and could easily have walked into Hebel and sought assistance to get back to Goodooga. Having regard to these factors, I consider that the verdict of the plaintiff should be reduced by 40%. I fix that percentage because, in my opinion, that represents his level of contributory negligence having regard to his own level of intoxication and the probabilities as to his own appreciation of the situation ." (emphasis added) 36 The question of contributory negligence was governed by s 138 of the Act, by which the common law as to contributory negligence applied subject to s 138(2). Section 138(2) relevantly provided - "(2) A finding of contributory negligence must be made in the following cases: (a) … (b) where: (i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and

(ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle, (c) where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seat belt when required by law to do so, (d) … " 37 The appellant submitted that his Honour erred in that, contrary to the dictates of Joslyn v Berryman (2003) 214 CLR 552, in the emphasised portion of the passage set out above he took into account the respondent's level of intoxication and appreciation of the situation as a subjective test of contributory negligence. It said that his Honour should have applied the test of an ordinary reasonable person getting into a vehicle driven by a clearly intoxicated Mr Willis and without usable seat belts (see Joslyn v Berryman at [44], [73]). The appellant submitted that the judge's reduction could not stand and that, on a fresh determination in this Court, the respondent's level of contributory negligence required much more than a 40 per cent reduction. 38 The judge's attention was drawn to Joslyn v Berryman. The submission was brief, that the test was objective and that the respondent "could not say 'I couldn't tell that Mr Willis was drunk, because I was drunk'." 39 In my view, this explains the way his Honour dealt with contributory negligence. He found that the respondent knew that Mr Willis was drunk, or at least ought to have known. Knowledge that the seat belts were not usable was not specifically stated, but went together with knowledge that Mr Willis was drunk. The judge's reasons are not ideal, and it would have been better not to have referred to the respondent's level of intoxication and appreciation of the situation. But his Honour's reasoning amounted to applying an objective test because the respondent's appreciation of the situation was not reduced by his own intoxication. Regard was had to the respondent's level of intoxication and appreciation of the situation by finding the level of contributory negligence notwithstanding them, rather than by using them in mitigation. 40 The judge's reasons must be read as a whole, and I am not satisfied that he erred in the manner suggested. I am fortified in this by the view that a reduction of 40 per cent is sufficiently substantial to fall within the range of the respondent's contributory negligence on an objective test. 41 The appellant submitted that in finding contributory negligence the judge did not take into account that the respondent failed to use a seatbelt when required to do so, and accepted a lift in a vehicle with no usable seat belts and no roof. The submission is without substance. The judge identified as part of the contributory negligence the unusable seat belts. Necessarily, the respondent did not use a seat belt. His Honour noted that the vehicle had no roof. 42 The appellant also submitted that in finding contributory negligence the judge made an error of fact. The vehicle ran out of petrol on the way to Hebel. At an earlier point in his reasons the judge found that Mr Willis left the respondent with the vehicle and came back with petrol. This underlay his Honour's reference, in the passage earlier set out, to Mr Willis walking eight kilometres into Hebel and then eight kilometres out. The appellant said, and the respondent acknowledged, that both Mr Willis and the respondent walked into Hebel, and were driven back to the vehicle by a friend. 43 In my opinion, this was an immaterial error. The appellant submitted that it gave the respondent additional opportunity to see Mr Willis' level of intoxication, including that he had a can of bourbon in Hebel. As has been seen, the judge found that the respondent was aware that Mr Willis was intoxicated and over the legal limit. I am not persuaded that the judge's determination of contributory negligence would have been different if he had correctly found that the respondent accompanied Mr Willis.

Non-economic loss 44 The judge made findings as to the respondent's injuries, treatment, present condition and prognosis. When he came to assessment under the various heads of damages, he began - " 1. Non economic loss The plaintiff, in my opinion, has proved that he is entitled to the maximum damages for non economic loss, a sum of $309,000. The medical evidence uniformly accepts that his brain injury is serious and permanent, that he will never work again, will not play sport, will not be able to form a relationship of a romantic kind with a woman and will need 24 hour care for the rest of his life." 45 Under s 131 of the Act damages could not be awarded for non economic loss unless the degree of permanent impairment of the respondent was greater then ten per cent. In accordance with Hodgson v Crane (2002) 55 NSWLR 199, once the threshold of ten per cent permanent impairment was passed, damages for non-economic loss were to be assessed on common law principles without any statutory restraint other than the maximum amount in s 134. The submissions before the judge show that he was alive to this regime. 46 At the time of judgment the maximum amount under s 134, as adjusted in accordance with s 146, was $329,000. Neither party drew attention to the discrepancy in the figure used by the judge. The appellant submitted that, having regard to the respondent's residual ability to do simple things for himself around the house, to get around the town by himself, and to maintain a relationship with his mother and his de facto wife and children, his damages for non-economic loss on common law principles would be of the order of $200,000 to $250,000. It said that damages of $309,000 were outside the range available to the judge. 47 The appellant did not go into detail, and I do not repeat the judge's detailed findings of the respondent's injuries and their effect upon him. I am not persuaded that damages of $309,000 were outside the range available to the judge.

Future economic loss (loss of expectation of becoming an enrolled nurse) 48 The respondent had done mustering and fencing work, then a year as an apprentice carpenter. He had then worked for the Goodooga Hospital as a nursing assistant. He had expressed interest in working at the Lourdes Hospital in Dubbo and furthering a career in nursing, but a little time before the accident had resigned from his position at the Goodooga Hospital. 49 The respondent was regarded as a good employee at the Goodooga Hospital, in particular by Ms Margo Anderson who had been in charge of the hospital during the respondent's time. Subject to the respondent going off on drinking binges for a few days every three months or so and being affected in his work for a few weeks thereafter, she regarded him highly. The judge accepted her evidence. The judge said that he could "see no basis for accepting that [the respondent] had any realistic intention of becoming a registered nurse", but that he was a good nursing assistant and was capable of becoming an enrolled nurse if he went to live in Dubbo and studied at a TAFE. 50 His Honour said - "A real question arises, however, as to whether he intended to continue with nursing and whether he would ever have left Goodooga to undertake the necessary studies. It is possible that the periodic drinking binges were environmental and that when he left Goodooga, they would have stopped, but there could be no certainty about this. Assuming that he had obtained employment in Dubbo and started a TAFE course, if this type of drinking recurred, it could be anticipated that he would not have retained his position in the hospital or his place in the TAFE course. This leads me to conclude that damages for his loss of earning capacity should be based on the probable situation that he would have obtained and maintained employment as a nursing assistant, with some periods off work. He has lost the opportunity of seeking to be an enrolled nurse or a registered nurse." 51 When he came to future economic loss as a head of damage, the judge said - " 5. Future economic loss The plaintiff seeks damages on the basis that he would be a nursing assistant for 3 years, then 10 years as an enrolled nurse and thereafter to retirement as a registered nurse. The defendant submits that the plaintiff would never have got beyond being a nursing assistant. The evidence before me establishes, in my opinion, as a matter of probability that the plaintiff, but for the accident would have been employed, with some absences caused by drinking as a nursing assistant. There is a possibility that he may have gone on to become an enrolled nurse or a registered nurse, but there is no probability that this would have happened. He is entitled to damages which should be based on his earnings as a nursing assistant for the rest of his life, discounted by 20% for the probability of gaps in his employment. He is also entitled to a sum of $50,000 representing his loss of expectation of ever being able to become an enrolled nurse. I am of the opinion that he had no realistic expectation of becoming a registered nurse." 52 The appellant did not challenge the amount of $173,184 later calculated based on the respondent's earnings as a nursing assistant with a discount of 20 per cent. It challenged the $50,000 for loss of expectation of becoming an enrolled nurse. It submitted that the award of that sum was contrary to s 126 of the Act, which provided - "126(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 53 Section 126 is in the same terms as s 13 of the Civil Liability Act 2002, which has been considered by this Court in MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145, Penrith City Council v Parks [2004] NSWCA 201 and K Mart Australia Ltd v McCann [2004] NSWCA 283. The reasons give no indication that his Honour addressed the terms of the section. It may be that his attention was not drawn to s 126. 54 The $50,000 was described by the appellant as a 'cushion'. The latter two of the cases last mentioned accept that, conformably with s 13 of the Civil Liability Act, a cushion or buffer may be awarded. The claimant's most likely future circumstances but for the injury can be found, and the comparison between the economic benefit from exercising pre-injury earning capacity and the economic benefit from exercising post-injury earning capacity can be satisfied by what McClellan AJA in Penrith City Council v Parks at [58] called "[a] modest award as compensation for the chance that a claimant may be disadvantaged in the future because of the injury". 55 For reasons which will appear, I do not think that the $50,000 was a buffer of the kind spoken of in these cases. The appellant's challenge to the $50,000 was really at the earlier point of finding the respondent's most likely future circumstances but for the injury. It submitted that the judge did not find that the respondent's most likely future circumstances but for the injury included becoming an enrolled nurse. On the contrary, the judge categorised that occurrence as a possibility but not a probability. Accordingly, it said, the judge could not award damages for economic loss on an "assumption" of the respondent becoming an enrolled nurse. 56 In MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone Hodgson JA said at [5] - "5 In general terms, the "assumptions" referred to in s.13(1) and s.13(3) are the views about what the future economic situation of the plaintiff would have been but for the injury, with which the court compares the future economic situation of the plaintiff resulting from the injury, as it is understood to be. Normally, these views will be expressed in terms of a capacity to earn a certain amount net per week as from the date of hearing until an estimated retiring date, perhaps with adjustments for promotion or other possible circumstances which could be anticipated as affecting earning capacity. " 57 His Honour suggested at [8] that there could be some tension between the requirements of s 13 and the approach described in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, which "could be understood as suggesting that the court should not base its award on 'the most likely future circumstances' but rather should base it on probability weightings of a range of alternative possibilities". 58 Hodgson JA continued at [9] - [14] - "9 That matter was considered with some care in Norris v. Blake (No 2) (1997) 41 NSWLR 49, where it was concluded that the proper approach in that case was to assess what it was most likely the plaintiff would have earned during the rest of his working life, and then adjust this for contingencies. So far, this would appear generally in accord with s.13. But in Blake , at 73, it was expressly noted that the contingencies included the possibility that the plaintiff might have done far better; and that is a matter to which s.13 appears to make no reference. 10 Subject to what I say later about "buffer" awards, it seems that the Blake approach has in fact been adopted in most personal injury cases, as a practical way to give effect to the Malec principle; and s.13 may be regarded as making it mandatory to do this. However, and this leads to the second major problem with s.13, the wording of s.13(2) is not entirely apt to the purpose of requiring an appropriate adjustment for vicissitudes or contingencies. 11 At first blush, "the events" referred to in s.13(2) would seem to be the events (including those relating to future earning capacity) on which the award is to based, which according to s.13(1) have been considered most likely but for the injury. "Most likely" here does not mean more likely than not, but more likely than any other possible scenario; and the "percentage possibility that such events might have occurred but for the accident" could be any percentage at all, depending on the number and respective probabilities of alternative scenarios. To adjust the damages according to this percentage possibility would make no sense at all. 12 In my opinion, having regard to the apparent purpose of the section, "the events" in s.13(2) must be those corresponding to the future economic situation of the plaintiff as it is understood to be resulting from the injury, not those corresponding to his future situation but for the injury. (I note this has much the same effect as reading s.13(2) as if "the events" were those referred to in s.13(1), but reading the last seven words of s.13(2) as if they were "might not have happened even if the injury had not occurred"). Even this has the difficulty that the percentage possibility that those events (that is, all those events, not just some of them) might have occurred even if the injury had not occurred would be vanishingly small. The vicissitudes that are normally allowed for are a multitude of possibilities that, even without the injury, could have in various ways prevented the plaintiff from completely achieving the economic situation considered most likely. 13 The usual allowance of 15 percent is not on the basis that there is a 15 percent possibility that even without the injury, the plaintiff would not have achieved the most likely economic situation, but on the basis that this is a reasonable discount having regard to a myriad of possibilities each of which could have meant that the plaintiff fell short of this situation to various degrees. In my opinion, despite problems with the literal wording of s.13(2), it should be read as having this effect. 14 There is the additional difficulty that s.13(2) does not seem to deal with the situation, contemplated in Blake, where there is a significant chance that the plaintiff's economic circumstances but for the accident might have been far better than the most likely circumstances. In that case, there was a moderate but not negligible chance that the plaintiff might have become a "superstar" earning huge amounts of money. It may be that, consistently with a purposive interpretation of s.13(2), positive vicissitudes can be taken into account in reaching the appropriate figure for adjustment, and perhaps even completely balance out negative vicissitudes. However, at present I am doubtful that s.13 would permit an upward adjustment if positive vicissitudes were considered to outweigh negative vicissitudes. It is not necessary to determine that question in this case." 59 In Penrith City Council v Parks McClellan AJA took a partially different view of the operation of s 13(2). His Honour said at [55] - [57] - "55 In my opinion it is possible to give effect to the intention of the Parliament without undertaking the reinterpretation suggested by his Honour. Section 13(1) requires an identification of 'the most likely future circumstances' of a claimant. These words do not permit an adjustment which recognises the chances of "the most likely future circumstances' failing to occur. When identifying the "likely future circumstances', all that the court must be satisfied of is that the assumptions which are made about 'future earning capacity or other events' accord with "the claimant's most likely future circumstances." 56 It is s 13(2) which requires an adjustment to be made having regard to the 'percentage possibility that the events might have occurred but for the injury.' This requires a judgment to be made as to the chances of 'the most likely future circumstances' occurring if the claimant had not been injured. In the ordinary course, and reflecting the conventional approach to vicissitudes (a discount of 15 percent), a court would assess there to be an 85 percent chance that an applicant would have experienced his or her most likely future circumstances. 57 Although this approach to the section resolves the first of the problems identified by Hodgson JA, it may not resolve the second ('positive vicissitudes'). It would require a positive adjustment under s 13(2) when clearly the subsection contemplates the assessment of the percentage of chance of the 'most likely future circumstances" occurring which must always be 100 percent or less." 60 For the reasons which follow, in my opinion both problems to which Hodgson JA referred can be resolved. 61 That s 126 of the Act, later repeated in s 13 of the Civil Liability Act, "enshrines in legislation the method for asserting an uncertain career path that was adopted in Norris v Blake (No 2)" has been noted by Professor Luntz in Assessment of Damages for Personal Injury and Death, 4th ed (2002) para 1.28. Norris v Blake (No 2) was concerned with the future economic loss of an established actor who might have achieved moderate success, considerable success or superstar status. Clarke JA, with whom Handley and Sheller JJA agreed, disapproved of arriving at a weighted average of lost chances, and said (at 73) that the proper approach was "to assess what it was most likely [the claimant] would earn during the rest of his working life and adjust this for contingencies, including the possibility that he might have done far better". His Honour said of the plaintiff in that case (at 75) - "It follows from what I have said that the court is concerned to determine what, on the evidence, was the most probable course that the respondent's career would have taken, what amount should be awarded to compensate him for the losses flowing from his inability to follow that course, and finally to make adjustments to the sum resulting from that determination to take account of the contingencies which in this case include the loss of the chance to do even better, to become, as it were, a successful star in the United Sates, even a superstar."

62 It was found that the plaintiff was likely to have achieved considerable success in Australia, broadly on a par with another actor whose earnings were used as the plaintiff's likely earnings, but with a "real chance" that he would have been offered work in the United States and succeeded there (at 76-7). The chance of becoming a superstar was not to be disregarded, but was to be taken into account in the making of adjustments for contingencies (ibid). A figure of $5,233,173 was calculated, based on the other actor's earnings, to which was added $2,500,000 - ' … to take account of the vicissitudes - both adverse contingencies, the loss of a chance to succeed in America, and the real possibility that he would have earned income after reaching the age of sixty. This is one case in which the vicissitudes (including the loss of chances) results in an addition rather than a deduction." (at 78) 63 If Norris v Blake (No 2) were followed, the judge's findings warranted a most probable career path as a nursing assistant, with the sum resulting (in this case $216,480) adjusted downwards for the contingency of gaps in the respondent's employment and upwards for the contingency of his becoming an enrolled nurse. The downwards adjustment would have brought the damages of $173,184. The upwards adjustment could have been made by a round figure, rather than a percentage, as was done through the $2,500,000 in Norris v Blake (No 2), and could have brought the $50,000. The discount of 20 per cent, $44,546, would have been balanced and slightly exceeded by the $50,000. 64 I turn then to s 126. Taking as the respondent's most likely future circumstances employment as a nursing assistant, the award of damages for future economic loss was based on an "assumption" which accorded with that career path. Hence the $216,480. Section 126(2) then required adjustment. In its terms, s 126(2) required the $216,480 to be adjusted by reference to the percentage possibility that the future career path of employment as a nursing assistant might have occurred but for the injury. As described by McClellan AJA, there could be adjustment according to the contingency that the respondent would not have been fully employed as a nursing assistant. Having regard to Norris v Blake (No 2), in my view there could also be adjustment according to the contingency that the respondent would have been employed not as a nursing assistant but as an enrolled nurse. 65 Nothing in s 126(2) restricted the adjustment to a downward adjustment. McClellan AJA remained concerned with positive contingencies, saying at [57] that the contemplated assessment of the percentage chance of the "most likely future circumstances" occurring must always be 100 per cent or less. I respectfully do not think this correctly reflects the operation of s 126(2). In my view, the words "possibility that the events … might have occurred" encompass percentage adjustments upwards or downwards depending on the facts. A percentage possibility that the plaintiff's future circumstances would have been better than those found as his most likely future circumstances calls for an upwards adjustment. If on the other hand the possibility is of worse future circumstances an adjustment downwards will be made. 66 Under s 126(2), the adjustment presently in question strictly should have been arrived at through a percentage. Why the legislature should so require, rather than leave available the no more unfathomable course taken in Norris v Blake (No 2), it is difficult to see. 67 The judge did not expressly follow s 126. The finding of probability of employment as a nursing assistant was made. That it was the "assumption " underlying a figure of $216,480 is plain enough. There were adjustments, albeit the $50,000 was not treated as an adjustment. The calculable percentage adjustment of the $216,480 is an upwards adjustment of 3.1 per cent ($216,480 less 20% equals $173,184, plus $50,000 equals $223,184, $223,184 is 103.1 per cent of $216,480). Section 126 is presumably intended to promote intellectual rigour, but if the result could have been reached failure to comply with it should not bring a new trial or a reassessment. In my opinion, the result at which the judge arrived was well open to him. The award of the $50,000 should stand.

Future care (by professional carers) 68 The respondent submitted to the judge that he should have damages for care by his mother until she was aged 65, and thereafter damages for care by professional carers. 69 The judge found that the respondent "needs constant round the clock care and supervision. If his parents were not there to care for him, he would need a 24 hours supervisory carer." 70 The respondent's mother, aged 55 at the time of the trial, had been caring for him, and gave evidence that she would not like anyone else to take care of him - " … because I would have to be there with Farren all of the time because I know what it is like, he lived with me all my life growing up. And I know that the accident definitely did effect [sic] because he will never ever be the boy that he was." 71 When the respondent's mother was at work between 9 am and 1 pm his sister, Belinda, looked after him. Belinda had three young children of her own. There was non-specific evidence that the respondent's older brother Chris, who lived in Walgett but worked in Goodooga and was there during the week, took him out from the house from time to time and took him to Walgett at weekends to give his mother a break. There was also non-specific evidence that the respondent sometimes went to a cousin's place at Lightning Ridge, and had other cousins, and that the small community of Goodooga was protective of him and people "keep an eye out for him and look after him". 72 Section 128 of the Act limited the compensation payable for provision of gratuitous care. Relevantly to the present case, by s 128(4) the compensation for gratuitous care could not exceed approximately $720 per week ($18 per hour for a 40 hour week). This was less than the cost of professional care, at 2002 rates $534 per day. 73 The judge said - "I agree with the submissions of the plaintiff as to the basis of the entitlement and the duration of it, subject to a deduction of 3 years from the life expectancy. The defendant does not dispute the entitlement to future care by the parents but claims it will go on till the plaintiff's mother is 70 years old. I consider that it is more reasonable to provide for such care until she is 65 years old. Thereafter, it should be provided for on the basis it will be provided by a professional carer. I can see no basis for allowing a lesser sum because the professional carer may be Aboriginal." 74 The appellant relied on the evidence summarised above concerning the respondent's extended family and the townfolk, and submitted that - " … the trial judge ignored the reality of life in Goodooga, in that even if the mother ceased care at age 65, the likelihood was that [the respondent] would be looked after by a combination of family members and townsfolk, but not at commercial rates of care." 75 A like submission had been made to the judge. It was for his Honour to find what was likely to occur after the respondent's mother reached 65. He was evidently not satisfied that the respondent would be cared for, in an appropriate manner, by some combination of other family members and the townsfolk; hence he made allowance for professional care. It was well open to his Honour to take that view. The judge was looking ten years and more ahead. The respondent's sister and brother, and no doubt the cousins, had their own lives, and with due regard to familial and cultural responsibilities in my view it was open to the judge to think it unrealistic to assess damages on the basis that, when the respondent's mother was unable properly to do so, the respondent would receive the requisite care from other family members. Nor could the townsfolk be expected to contribute in any significant way to the requisite care. 76 In my opinion, no error has been shown in the damages in this respect.

Future care (respite care) 77 Section 129 of the Act provided that damages could include compensation "for reasonable and necessary respite care in respect of a claimant who is seriously injured and in need of constant care over a long term". 78 After stating the basis of damages for future care in the passage earlier set out, the judge said - "It is also necessary to provide for respite care for the parents and for necessary annual holidays for the professional carer. It is reasonable to make that sum 10% of the total amount provided for care. To these sums must be added the costs of fund management." 79 It is necessary to see this in the light of the submissions made to the judge. 80 The respondent provided a schedule of damages in which he claimed damages for respite care at 10 per cent of all the future care damages. So far as appears, he did not elaborate in submissions. 81 The appellant submitted that there should be no allowance for respite care, but that if there was to be an allowance and it was going to be 10 per cent it should be 10 per cent of the amount of the future care provided by the respondent's mother. The appellant's counsel accepted that "if you're giving [the mother] a break, she's got to get a paid carer, so it would be a higher rate than she's getting, because she's the mother", although suggesting that a paid carer may not be necessary because the respondent's brother could step in. The judge appeared to agree that only the period of care by the mother was material, saying "Anyhow, it's not going to be 10 per cent of two and a half million. You'd say there's no need for it at all. Alright." 82 In submissions in reply the respondent said that the 10 per cent was "only an estimate and not in accordance with any authority or principle", and that "an amount should be allowed for [respite care], but that amount should be both for the period both where his mother is looking after him and otherwise." Some discussion followed. The appellant submitted in this Court that the discussion made clear that the respondent was saying that an allowance for respite care should be made with respect to the respondent's mother and any others who provided gratuitous care. It was certainly not made clear, which may be the source of the error into which the judge fell. 83 The submissions to the judge were not particularly satisfactory. Taking 10 per cent of the damages for future care, for whichever period, was admittedly an unprincipled and arbitrary estimate. One question should have been whether respite care was reasonable and necessary when professional care was provided, and another should have been the calculation of the compensation for the reasonable and necessary respite care. The respondent's estimate obscured the correct approach. The appellant did not provide a principled calculation. It continued with the 10 per cent, but as applied to a lesser amount for future care. Even for the period of the mother's care, the 10 per cent may have been wrong. 84 The judge expressed his allowance as provision for respite care "for the parents and for necessary annual holidays of the professional carer". It does not seem to me that he took 10 per cent of the total amount provided for care as an allowance for respite care for the period of the mother's care, because he specifically referred to respite care for the annual holidays of the professional carer. In my opinion, the judge was in error so far as he provided for respite care for the period of professional care. The point of respite care for the respondent's mother was to give her a break, in the view the judge took by bringing in professional care for the respite time. In effect, it meant an increase in the rate at which the allowance for care was arrived at, because the carer would be a professional carer rather than the respondent's mother. But there should not have been an allowance for respite care with respect to the professional carer(s) after the respondent's mother had reached age 65. Professional carers might come and go, perhaps a long standing carer might be said to take respite time, but any replacement carer would still be allowed for at the same rate. 85 That is not an end to the matter. Under a notice of contention the respondent submitted that the judge's amount for respite care was appropriate for the period of the mother's care, irrespective of the period of professional care thereafter. The figures did not stand up to this, but using the 2002 rates earlier mentioned, and assuming respite for one day a week and two weeks holiday each year, over ten years compensation for respite care appropriately discounted would be $148,694. 86 The appellant submitted that the respondent should not be permitted to put forward an amount so calculated because he had not done so at the trial. He had not, but his case at the trial was unsatisfactorily presented in submissions in this respect rather than conducted on a basis which excluded it. In my opinion, there will not be unfairness to the appellant. 87 The appellant then submitted that respite care while the respondent's mother was caring for him would be provided by family members. It said that the family members had given the respondent's mother a break in the past, and could be expected to do so in the future. On that basis, it was said, because the maximum for gratuitous care under s 128(4) had already been reached, there could be no compensation for respite care; alternatively, the compensation should be at the lower rate of $18 per hour, giving a figure of $120,292 in lieu of the $148,694. 88 The evidence did not give much detail as to relief provide to the respondent's mother. I do not think the family members provided anything like the respite of a day a week and two weeks holidays, and the relief they provided was likely to grow less over the next ten years. The assumed one day per week plus two weeks holidays could involve more separation from the respondent than his mother would countenance, and it is not easy to say what is reasonable and necessary respite care. In my opinion, it is likely to have a substantial element of professional care. In all the circumstances, I consider that an amount of $130,000 should be awarded in lieu of the $268,429 awarded by the judge.

Contributory negligence - cross appeal 89 In his written submissions the respondent suggested that, for reasons he gave, the appropriate reduction for contributory negligence was in the order of 15 per cent to 20 per cent. In oral submissions counsel for the respondent said that - " … whilst we are not happy with the percentage discount, in the interests of comity if your Honours thought the appellant's submissions were not particularly attractive, we would not trouble your Honours with submissions." 90 This was said when counsel had been called on briefly with respect to the motor vehicle and with respect to the $50,000 and respite care, but not otherwise. Although in terms conditioned on our view of the appellant's submissions, it was a genteel abandonment of the cross-appeal. 91 The abandonment was understandable. In my opinion, conformably with the essentially discretionary nature of a decision upon apportionment of responsibility, there could not properly be reduction on appeal of the level of contributory negligence found by the judge; nor would I have been inclined to reduce it.

The result 92 The substituted judgment amount must be calculated. I am not sure whether the fund management allowance changes. The parties should have the opportunity to calculate the substituted judgment amount, and the orders I propose have that in mind. 93 The appellant has substantially failed. In my opinion, its limited success calls for some but not much alleviation of the costs it must pay to the respondent. The appellant should pay 90 per cent of the respondent's costs of the appeal and cross-appeal. The judge's order for costs should stand. A certificate under the Suitors Fund Act is not appropriate. 94 I propose the following orders -

3. Set aside the judgment for $2,688,382, and in lieu thereof judgment for such substituted amount calculated in accordance with these reasons as the parties notify the Registrar within seven days, taking effect on 30 January 2004.

4. Liberty to apply in the event of disagreement over the substituted judgment amount.

5. Appellant pay 90 per cent of the respondent's costs of the appeal and cross appeal. 95 IPP JA: I agree with Giles JA. 96 TOBIAS JA: I agree with Giles JA. **********

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