Economic loss
85 As indicated, the appellant does not here point to evidence of methodological error. The learned judge applied the reasoning in Woolage v New South Wales [2001] NSWCA 256 at [49] and allowed twice the conventional discount for vicissitudes.
86 As regards non-economic loss the appellant concentrated his attack upon the bottom line as it were. He submits that the primary facts do not sustain the award, which is challenged both as regards the finding of retained earning capacity and the finding as to likely earning capacity apart from the impact of the accident.
87 Goldring DCJ said the following:
The plaintiff has a very sparse record of full-time employment in the past, which makes it difficult to assess her claim for past and future economic loss. She has established that as at 14 June 1996, she was in her first year as a full-time student in a TAFE welfare course, and her results indicate that she was doing reasonably well, to the extent that she could reasonably have been expected to complete the course at the end of 1997. There is evidence that she re-enrolled in the course after suffering her injury, but discontinued, on her evidence, which was not challenged, without failure, because her injury made it impossible for her to study or concentrate for long periods.
I consider the likelihood of her completing her studies and obtaining employment as a welfare worker at some stage were extremely high. I have therefore determined that she is entitled to past economic loss on the basis that she would have been employed as a welfare worker (lowest level) from February 1999 until the date of hearing - say 3.5 years. (Mr Longhurst suggested that I take the commencement of employment as 2000, but I see no reason for so doing. I shall assume an average wage of the second level of the award for a Community Services Worker Grade 1, ($400.00 per week net.) This loss amounts to (52 x 3.5 x 400) $72,800.00.
It is also highly likely that, provided she remained able, the plaintiff would have worked as a Community Service Worker to age 65. Her back condition and, to a vastly lesser extent, her mental health and associated complaints, make her ability to continue to that age significantly problematic. I will therefore, in accordance with what I take to be the principle approved by the Court of Appeal in Woolage's Case , increase the discount for vicissitudes of life to 30%. It is conceded that the plaintiff retains a residual capacity for work, though this is limited. Her counsel has suggested, as the basis for calculation, an average wage of $475 per week, which in my view is reasonable, given the relevant Award and her likely progression though the increments. I consider that despite her protestations, she is able to do part-time clerical work for about 15 hours per week, so her current earning capacity is about $150.00 per week net, leading to a loss of future earning capacity of $325.00 per week. Damages under this head will therefore be (325x786.7x70%) $178,974.26.
88 The appellant challenged the conclusion in relation to residual earning capacity (part-time clerical work for about 15 hours per week). In my view, this conclusion was well open to the trial judge in light of the very gloomy medical prognoses and his Honour's assessment of the respondent, whom he had the advantage of observing in the witness box.
89 The second line of attack addressed his Honour's conclusions that the respondent, uninjured, would have worked as a community service worker to age 65 subject only to interruptions reflected by a doubling of the conventional discount for vicissitudes.
90 This predictive conclusion was based to a significant degree upon projections of the respondent's life style and work history down to the eve of the accident.
91 I am not persuaded that the primary judge erred in his conclusion that the likelihood of the respondent successfully completing her TAFE course was "extremely high".
92 But I cannot accept the correctness of a similar assessment of her prospects of finding ready employment as a welfare worker. The Court has not been taken to any vocational assessment or any material about the type and availability of such employment. I accept that the respondent's life experiences would give her valuable insights. And I acknowledge that organisations such as the Salvation Army make strategic use of people who have battled to overcome alcoholism and other problems. Unfortunately, the respondent and that organisation parted company before the accident because of lifestyle issues upon which I pass no judgment.
93 Sadly, the respondent's drug, alcohol, psychological and (incipient) physical difficulties and her unsatisfactory work-record prior to the accident would have been likely to impact adversely on her capacity to obtain and retain employment in welfare and many other fields. And welfare work would undoubtedly have stresses and strains which could impact adversely upon the respondent's somewhat fragile psychological framework. I think it likely that she might well have fallen back upon less remunerative areas of work (involving general clerical skills). I also think it likely that there would have been significant interruptions due to the likely recurrence of the various problems in the respondent's lifestyle and circumstances.
94 The doubling of the conventional discount for vicissitudes recognised the difficulties that the respondent would have had, uninjured, in retaining employment as a welfare worker. If that stood alone, I would not have interfered with what on any view is a broad judgment call on which minds could easily differ.
95 But I am persuaded that the evidence does not sustain the conclusion that it was highly likely that the respondent would have readily obtained employment in her lately chosen vocation upon which she had only progressed a quarter of the way through formal training at the time of the accident. I consider it optimistic to the point of being unrealistic to have concluded, in light of the respondent's past work history and the reasons lying behind it, that she would have secured this type and level of employment subject only to the 30% allowance that his Honour made.
96 Faced with the difficult task of reassessment I have concluded that the best I can do is to increase the reduction for vicissitudes to 50%. In doing so, I would (with hesitation, but hopefully justified optimism) affirm that, had the accident not intervened, the respondent's life was on the verge of taking a turn for the better. Accordingly, I do not disturb the trial judge's decision that damages should be assessed on the basis that there was a significant possibility of employment in the welfare field opening up for the respondent. Sadly, the impact of her earlier life-style choices forces me to take a guarded view as to the realistic prospects of the respondent persuading employers to give her sustained employment in that field.