PARTIES:	SHAW
V
THE COMMONWEALTH OF AUSTRALIA

TITLE OF COURT:		In the Court of Appeal of the Northern Territory of Australia

JURISDICTION:	Supreme Court of the Northern Territory of Australia exercising Territory jurisdiction

FILE N2 :	AP 15 of 1992
DELIVERED:	Delivered at Darwin 24 November 1993 HEARING DATES:	Heard at Darwin 31 May  1993 JUDGMENT OF:	Martin CJ, Angel, and Mildren JJ
CATCHWORDS:
DAMAGES - Appeal and cross appeal - global award for detriment suffered in single lump sum - principles in interfering with assessment.

DAMAGES - Appeal of award - assessing damages for future or potential events - degree of probability of events occuring pain and suffering - loss of amenities of life - gratuitous services of spouse - discounting for contingencies and overlapping.

DAMAGES - Cross appeal - no interest awardable on general damages.
STATUTES
Supreme Court Act s84
Lord Tenterden's Act (Civil Procedure Act 1933 (UK)) s29

Luntz, Assessment of Damages for Personal Injury and Death, 3rd Ed.(1990)
CASES
Paul v Rendell (1981) 34 ALR 569 Considered
Gamser v Nominal Defendant (1977) 136 CLR 145 discussed Calder v Boyne Smelters Limited (1991) 1 Qd R 325 applied Hayman v Forbes (1975) 13 SASR 225 applied
Malec v JC	Hutton Pty Ltd (1990) 169 CLR 638; (1990) 92 ALR
545 applied
Wilson v Peisley [1976) 50 ALJR 206 mentioned
Van Gervan v Fenton (1991-1992) 175 CLR 327 applied
Hodges v Frost (1984) 53 ALR 373 not·followed

Griffiths v Kerkemeyer (1977) 139 CLR 161 mentioned
Tuebner v Humble (1962-3) 108 CLR 491	followed
Commonwealth of Australia v Chessell (1991) 30 FCR 154 applied
Bresatz v Przibilla (1962) 108 CLR 541	applied
Elia v O'Bryne (1990) Aust Torts Rep. 81-050 applied Jones v South British Insurance Co Ltd (1984) ALR 408 mentioned
Fox v Everingham and Howard (1983) 75 FLR 170 followed
Haines v Bendall (1991) 172 CLR 60 distinguished
Hungerfords and others v Walker and Others (1990) 171 CLR 125 followed.
REPRESENTATION:
Counsel

Appellant: Respondent:

Solicitors Appellant: Respondent:

J·Waters
T Coulehan

Cridlands
Australian Government Solicitor

Judgment Category classification: CAT A Court Computer Code:
Judgment ID Number: MIL93015 / ANG93017 Number of pages: 28
General Distribution

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN

N2 AP 15 of 1992
On APPEAL from the judgment in proceeding N2 611 of 1986.
BETWEEN:
KIM MAREE SHAW
Appellant

AND:

THE COMMONWEALTH OF AUSTRALIA
Respondent

CORAM: Martin CJ, Angel and Mildren JJ

REASONS FOR JUDGMENT
(Delivered 24 November 1993)

The Court:

This	is		an	appeal	and	cross-appeal damages	awarded	in		favour	of	the

against	the	quantum	of appellant	for	personal

injuries and consequential losses suffered by the appellant arising out of an accident which occurred at Oenpelli School  in August 1974 when the appellant was twelve years of age.

The appellant had been one of a number of students from  Jingili Primary School who had attended an eight day school camp at Oenpelli School organised by the teachers of the Jingili Primary School who at the time were the respondent's servants or employees. The appellant suffered her injuries as the result of a fall from a trampoline situated at the  Oenpelli School's grounds. The learned trial judge found that the injuries the appellant sustained were the result of this fall, that they were caused by the negligence of the respondent's teacher/employees, and that there was no contributory negligence by the appellant. The appellant was awarded a total of $214,180 damages, which the learned trial judge summarised as having been arrived at as follows:

"Award of damages
In the result, the tentative amounts we have allocated to each of the conventional heads of damage which have been put forward, are as follows:

lA	Motor vehicle (past)	$3,000	
lB	Motor vehicle (future)	4,045	
2	Shoes	1,529	
3	Future medical expenses	40,000	
4A	Loss of earning capacity,	30,004	

Pecuniary loss

to trial
4B	Interest on this component
Future loss of earning capacity
Home help
Loss of benefit of concessional Bank loan
Non-pecuniary loss
8A	Pain suffering and loss of amenities of life
8B	Interest on pre-trial component of this head
Total

4,200
156,293
nil
5,000

40,000

21,900
$305,971

Taking into account in particular the need to discount substantially item 5 above, and to provide for the contingencies of life and the overlapping between the various conventional heads of damage, we reduce the tentative total figure by 30%. The defendant must pay the plaintiff $214,180 and her costs of the action less $500. The sum of $500 is to take account of the fact that several hours were lost on one day when the plaintiff had no witness ready to continue."

Assessment of damages in cases of injured children are always difficult and particularly is this so in respect of future loss of earning capacity, see, generally, Luntz - Assessment of Damages for Personal Injury and Death 3rd ed (1990), para 5.3.4.

By the time the case came to trial the appellant was a married adult with a working history and the learned trial Judge properly took these post-accident developments into account in reaching his conclusions, see para 1.4.1 of Luntz, supra. Nevertheless, the difficulties of the task and the need to prophesy into the future remain, as does the accuracy, if not the applicability, of Lord Diplock's statement in Paul v

Rendell   (1981) 34 ALR	569 at 571-572, viz:

"The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured. What matters to the parties, however, to the plaintiff and to the insurer of the defendant alike, is the total sum awarded. Neither party is concerned how the assessor of the compensation has rationalized his intuitive assessment of the total amount that the plaintiff ought to recover by apportioning it between the various components, past and future, economic and non-economic loss, and interest on each class of loss, which he has taken into consideration before arriving at his final award.
So long as juries continued to be the assessors of damages they were not called upon to rationalize their hunches; but judges are, and this has given rise to a considerable body of case law in the various state Supreme Courts and in the High Court of Australia about the principles to be applied where the use of particular mathematical formulae form steps in the process by which the judge has sought to justify his choice of a particular figure for one of the components into which he has broken down his total award. This is particularly so with those components that represent future economic loss and interest on loss sustained before the date of judgment. But while it is possible to lay down principles for the choice of the formula and its parameters (in its accurate sense of constants in a mathematical equation) - the choice of figures for the variables is within the discretion of the assessing judge. By adjusting one or other of these factors he can make the formula work out at whatever figure he fells[sic] intuitively to be correct."

We say "if not the applicability" because of the contrary binding statement of Stephen J in Gamser v Nominal Defendant (1977) 136 CLR 145 at 149, where he said:

"... so long as awards of damages for personal injury are to be assessed at first instance by judges rather than by juries, with the accompanying advantage of the existence of stated reasons, those reasons should condescend to some degree of particularity concerning the process by which the particular award of damages has been arrived at. I do not, of course, advocate any process whereby items of damages are quantified in isolation and are then simply aggregated; that is no way to go about the task.

But to condemn that approach should confer no merit upon another, no less objectionable, whereby the total amount to be awarded is stated without any disclosure of the mental processes by which that sum has been arrived at. An award of damages is not, nor should it ever be, arrived at intuitively. Only if it were would particularity as to its component parts be otiose; and if an award is to be the result of a process of reasoning, often quite complex, that process should be exposed, both for the satisfaction of the parties and for the enlightenment of appellate courts should there be an appeal. So long as compensation takes the form of a lump sum award, arrived at by an evaluation of evidence and by processes of reasoning, there must necessarily be involved some assessment of each item of detriment and some process of computation in order to arrive at the ultimate sum to be awarded. There will very often be detriment suffered or risks of detriment to which a party has been exposed which are incapable of precise quantification. In such cases estimates must suffice and the notion that some false impression of precise mathematical accuracy may be given can readily be dispelled by a few words of explanation. There is no occasion to abandon altogether the task of explaining the components of the award."

The differing approaches of various appellate courts to assessments such as the present were discussed at some length by the Queensland Full Court in Calder v Boyne Smelters Limited (1991) 1 Qd R 325. At 346 Cooper J said:

"However, the judgment is a global award to compensate for all the detriments suffered and it is made only once by the payment of one lump sum. Thus, although an assessing judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated (see Gamser per Stephen J at 149-150 with whom Gibbs J agreed at 148 and Paul v Rendell (1981) 55 ALJR 371 {PC) at 376- 377). It is the allocation of particular sums which discloses the process of reasoning which led to the exercise of judicial discretion which itself is given effect to in the final award in the form of a single lump sum (Wilson v Peisley (1975) 50 ALJR 207 at 214 per Mason J with whom Gibbs J agreed; Gamser per Gibbs J at 148 and Stephen J at 149-150; Sharman at 572 per Gibbs and Stephen JJ with whom Jacobs J agreed as to the approach of an appellate court; Dessent v The Commonwealth (1977)
51 ALJR 482 at 486-487 per Mason and Aickin JJ).
What is appealed against is the total sum awarded i.e. the discretionary judgment as reflected in the lump sum award. Whether the appeal is successful depends upon the

answer to one ultimate question. That question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt."

At 352 cooper J summarised the principles as follows:

"(a) an appellate court will not interfere with an assessment of damages simply because it would have awarded a different figure had it tried the case at first instance;
an appellate court will not interfere unless there is shown error in the reasoning of the court at first instance which has led to an award of damages which is beyond the limits of what a sound discretionary judgment could reasonably adopt;
the error may be either an error of principle or the misapprehension of the facts;
where no apparent error can be shown, error will be inferred if the court is satisfied that the trial judge has made a wholly erroneous estimate of the damages;
once it is demonstrated that error has led to an assessment of damages beyond the relevant limits, the appellate court will intervene and itself assess an award which represents fair compensation as between the plaintiff and the defendant for all the detriment suffered by the plaintiff; and
if the error is such that the appellate court cannot determine the relevant limits of an assessment based upon the proper application of legal principle and a proper appreciation of the facts, or the appellate court does not feel it is in a position to itself assess damages, then the appellate court will remit the matter for further consideration by the trial court in accordance with the law as declared by the appellate court and in accordance with its directions, if any, as to the facts found or to be found."

We generally agree with his Honour's analysis of the conflicting authorities and with his summary of the principles which are applicable to a case such as the present.

As can be seen, generally speaking, to	discern	errors	in	particular

this Court's task is heads	of	damage

not and

consequently to re-arrange the aggregation of sums separately
allocated;	the	Court's	task	is	to	ascertain	whether	the appellant has demonstrated error which has led to a lump sum

award which is outside the limits of what a sound discretionary judgment could reasonably adopt. That is not to say that if an error under a particular head, which can be readily isolated from other heads, is demonstrated, a single arithmetical adjustment can not be made, provided the consequential assessment is not significantly more or less than the assessment appealed from: cf Luntz, supra, para
12.4.4. An error leading to a significant adjustment will call for an overall reassessment.

For the reasons that follow, we are of the view the learned trial Judge fell into error in a number of respects and that the errors have led to an assessment of damages below the limits of what a sound discretionary judgment could reasonably adopt.

In these circumstances the award calls for interference and the appeal should be allowed, and we should assess the appellant's claim for ourselves and substitute a figure for that assessed by the learned trial Judge: Hayman v Forbes
{1975) 13 SASR 225 at 230, 236.

The appellant and respondent challenged the award on a number of bases by reference to the amount "tentatively" allocated to a particular head of damage, as later discounted, and it is convenient to deal with the arguments on each head of damage seriatim.

Loss of Future Earning Capacity
The award under this head was attacked on two bases. Firstly, the appellant submitted that the learned trial judge ought to have included in the award an allowance for the plaintiff's lost chance to pursue a career as a radiographer. It is common ground that no allowance was made for this in the award, the learned trial judge having rejected the claim as he did not consider that the evidence carried that contingency "beyond mere speculation."

In assessing damages for events which might have or would have occurred in the future but for the negligence of the respondent, the task of the court is to make an assessment of the chance, or degree of probability, that the events in question might, or would have occurred. If the chance or degree of probability is more than an even chance, the court does not treat the event as certain to happen or to have happened (as it does in respect of events which allegedly have occurred in the past) but makes an adjustment to the award to reflect the degree of probability involved. However, if the chance is so low as to be regarded as speculative, the court will ignore it. In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-3; (1990) 92 ALR 545 at 548-9; Deane, Gaudron and McHugh JJ said:
"Assessing Damages for Future or Potential Events
When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to

reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v
Williams [1979] 2 NSWLR 543 at 550-1. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."

In the same case, Brennan and Dawson JJ said (at 640):
"Although we agree with the general thrust of the reasoning on this point in the judgment of Deane, Gaudron and McHugh JJ, we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation. We should add that we would not favour the use of the term 'probability' to describe the possibility  of occurrence of a situation when the possibility is minimal."

We should add that neither this Court, nor the court below, was referred to Malec 's case. The findings of the learned trial judge (at AB 24) were that:
"From an early age, the [appellant] had an interest in pursuing a career in radiography or in running her own hairdressing business. In the light of her good school grades and advice from professionals in both of these areas she felt she was capable of achieving either goal. However, the specialist Mr Cummings in 1975 [when the appellant was aged fourteen] dissuaded her from pursuing either of these career paths, because she was no longer physically suited to either of them. That is clearly correct, as she lacks the necessary agility; see later. Consequently, the [appellant] steered away from "the science-based subjects in which she was proficient - she was in the matriculation 'stream' - and chose to do a stenographer's course when it was offered in Year 11 at school She left school at the end of Year 11, aged seventeen years. The [appellant] fairly conceded that her academic progress at school had been impeded to some extent by the change of schools occasioned by Cyclone Tracy, and not just by the accident."

The only other evidence to which we were referred was the evidence of the witness, Genga Theralingum, the superintendent of radiology at the Royal Darwin Hospital, that in order to qualify for entry into a diploma course in radiography, the appellant would have required Year 12 maths and English, and

the evidence of the appellant that she was not good at maths.

This being all that was available to the learned trial judge, we do not see how any assessment of the chance of the appellant successfully completing and becoming a successful practising radiologist was possible, and we consider that the learned trial judge's conclusion that the chance was "speculative" was correct.

The second basis of attack was that the learned trial judge's finding that, after a hip replacement which was likely to occur in her middle forties, the appellant would remain in full time work thereafter, was not supported by the evidence. It is plain that the learned trial judge made no allowance for the chance that the appellant might not then be able to resume full time work. His Honour's finding was expressed as follows (AB 48):
"In her mid-40's, following a hip replacement, I consider the likelihood is that she would return to full time work and would remain in full time work thereafter."

The language employed by the learned trial judge leads us to conclude that, having found on the balance of probabilities that she would probably return to full time work after the hip operation, his Honour thought that no allowance ought to be made for the possibility that she may not be able to do so. In our opinion that was not the correct approach. The trial judge was required to assess the chance that the appellant might return to full time work in the future, and unless he found that the chance was so high as to be practically certain, he was bound to make allowance for that chance: see Malec v JC Hutton Pty Ltd, supra. No such finding was specifically made. The appellant, who was thirty years of age at the date of trial in November 1991, suffered an injury to the left knee which produced damage to the femoral head and to the articular cartilage of the left hip joint. Despite treatment, the joint
surfaces	deteriorated and fusion or ankylosis took place	in a	
position	of flexion	and	adduction.	She has little,	if	any,	
mobility	of  the left hip	joint,	the left	leg	is one	inch	

shorter than the right, and the left leg is wasted. Use of the hip is painful. She also has low backache due to secondary

lumbar	lordosis compensatory	to

and		thoraco-lumbar		scoliosis		which		are the	fixed	hip	and	shortened	leg.	Early

degenerative changes are likely to take place in the spine, leading to chronic backache. The appellant has 40° loss of range of flexion and extension at the left knee joint. Her present disablement was assessed as 87 per cent of the lower extremity, and 35 per cent of the whole person for the hip and knee injuries, and 20 per cent of the whole person for her back, giving a total disability of 55 per cent of the whole person.

The appellant was, at the date of trial, employed part time as a bank officer working in the order of 19.5 hours per week and his Honour accepted that it was likely that she would be able to maintain that employment until she had a total hip replacement by the time she reached her middle forties.

His Honour found that assuming the total hip replacement were to be successful, the hip joint should then be painless and mobile, though there would not be a full range of movement; that "the present pain would not totally subside because of the changes which have already occurred in the lower back region, but it should be easier for the plaintiff to work, and she should then have an increased working capacity, and ability to carry out household duties. She might still need heel uplifts. I add that the plaintiff would not choose to have a hip replacement at her present age; she presently contemplates undergoing that operation at age 45-50 years." The learned trial judge also accepted that the prosthesis would wear out after some ten to twelve years and would only be able to be replaced once; thereafter the hip would have to be fused, causing a reduction in mobility.

The learned trial judge does not seem to have taken into account (except perhaps in the discount factor, which we will come to shortly) that, at the time of the operations (and the probability is that at least two would be required before the

appellant reached normal retiring age) the appellant would be hospitalised for three months on each occasion, thus reducing her earning capacity to nil for those periods.

We do not think it would have been open to the learned trial judge to have found (if he did so find) that the chances of the appellant's earning capacity being fully restored to her after her first hip replacement were so great that he was entitled to ignore the chance that she may be left with no loss of earning capacity thereafter. There are many factors such an approach would overlook. The operation might not be a success; even if successful the appellant still had a significant disability in her left knee which the learned trial judge accepted was alone responsible for a reduction of
14 per cent of the use of her lower leg; the time off work whilst in hospital; the scoliosis was not proved to be remedied by the hip replacement; the ongoing back pain, together with the scoliosis, presently represented a 2O per cent disablement of the whole person and was likely to worsen with the onset of earlier arthritic and degenerative changes to her spine. The appellant might also find difficulty in obtaining full time employment at the level she had previously reached with the bank, given her then age, even after a successful operation.

The amount tentatively awarded for future loss of earning capacity, $156,293 was discounted by 30 per cent, giving a result of $109,405 for this head of damages. The figure of
$156,293 was arrived at by calculating the present net value of the present weekly loss of $247.3O per week over fifteen years using 3 per cent discount tables. In our opinion, this sum is not large, given the appellant's disabilities and future prospects, and in our opinion is far too low, having regard to the need to make proper allowance for the chance that in the future, her full earning capacity might not be restored. We will discuss the amount that should be allowed under this head after having considered the question of the amount deducted from the award for contingencies and overlapping: see below.

Loss of benefit of concessional bank loan
The appellant called evidence at the trial to show that she had been able to reach the position of a customer services supervisor with her employer, the National Australia Bank, in mid 1989. At that time, she was still able to work full time, although, after six months, she found that she was unable to continue in full time employment. The learned trial judge accepted that her employment on a part time basis thereafter was due to her injuries and that she was probably working to her capacity by working 19½ hours per week.

The appellant called evidence to show that as a full time employee of the bank at the level of a customer services supervisor, she was entitled to a concessional home loan from
the bank at a fixed rate of interest of 9 per cent, then currently some 3½  per cent lower than that available  to the
bank's customers. There was also evidence that as a part time employee of the bank in her position, she was entitled to a loan at a rate of 10 per cent, but the amount of the loan would be for a maximum of $27,000 instead of $67,000.

This benefit was taxable by her employer as a 'fringe benefit.'

The appellant and her husband have a loan from the bank, part of which is at concessional rates (11½ per cent), but she could only borrow a small part of her $90,000 home loan, at concessional  rates. The learned  trial  judge found that the
rate differential between concessional rates and customer rates do not remain at 3½ per cent, but we think it is clear that there would always be some differential. (Why the present
rate is 11 per cent and not 10 per cent is not clear).

The appellant's counsel submitted calculations at the trial to show that the present value of the loss, based on those figures over the length of a loan for nearly twenty years using 3 per cent discount tables was approximately $12,000.

The learned trial judge allowed $5,000, because he considered it likely that the appellant will return to full time work  with the bank after her hip operation, and that therefore the amount claimed should be substantially discounted. However his Honour then applied a second discount of 3o per cent to the damages as a whole to provide for the contingencies of  life and the overlapping between the various conventional heads of damage. This effectively reduced the award under this head to
$3,500.

The appellant submitted that this was in error for a number of reasons. First, the length of the loan was about twenty years, by which time the appellant would be only fifty years of age. Even if the appellant resumed full time work at forty-five after her hip operation, the discount was too great. Secondly, no allowance is made for the chance that the appellant was not able to resume full time work. Thirdly, there was no basis for a further discount of 30 per cent for contingencies and overlapping.

In our opinion the amount awarded is much too low. The learned trial judge would have been entitled to discount the figures  to reflect the fact that the interest differential might not always be as high as 3\ per cent, to allow for the chance that she may return to full time work at some time before she  turned fifty, and for the usual contingencies of life, i.e. that she may not be able to have stayed in that employment due to recession etc. In our view a proper sum for this head of damage is $8,000.

Award for pain and suffering and loss of amenities of life
The total amount tentatively awarded was $40,000 of which the learned trial judge apportioned $30,000 for past losses under this head. His Honour then discounted the award by 3O  per cent, resulting in an actual award of $28,000.

The appellant attacked the award as being "so disproportionate to the nature and consequence of the injuries as to go beyond the range of the exercise of a sound discretion in the

awarding of damages": Wilson v Peisley [1976] 50 ALJR 206.

Mr Waters for the appellant submitted that the appellant's life was "comprehensively ruined" from the age of twelve. The facts as found by the learned trial judge include the following: the pain from the fall was not enough to prevent the appellant from going on a hike on the day of the accident, albeit with a limp. On returning to Darwin the pain slightly abated, then flared up after a few days. The pain was primarily in the left knee. She sought medical treatment in Darwin and was referred to a specialist in Adelaide. By the time she arrived there, she had already suffered a lot of pain. She was taking pain killers and her left knee was swollen. She underwent exploratory surgery, traction and physiotherapy, and was hospitalised from 24 October to 7 December 1974. She had been left with a large unsightly scar on her left buttock following the surgery which is still visible whilst wearing a swim suit and has been a source of embarrassment ever since. When she returned to Darwin in December 1974, her limp had improved. After Cyclone Tracy the appellant moved to Newcastle with her family. She had difficulty walking and consulted an orthopaedic specialist, but physiotherapy was not possible because the pain was too great. She sought treatment from a specialist in Sydney but was advised not to have a hip replacement until "some time in the future." She returned to Darwin with her family in 1976, and attended Casuarina High School from 1976-1978. Prior to the accident she had no physical injuries, was keen on netball and basketball and participated in 'little athletics' and swimming. She had been selected in the junior NT Netball Squad in 1974. She excelled at swimming. After the accident, she was unable to participate in these sports, and could manage only minimal exercise. She found this hard to accept, and her lack of sporting activity and her limp made it difficult for her to make friends at school. After leaving school, she joined the CBC Bank in Darwin and transferred to Newcastle in 1980 to be near her parents. During her employment with the bank, she found a need to be able to sit or stand as required, for she could only stand for about five minutes before her hip became

painful. By 1989 the pain was such that after a day's work she would take a hot bath and retire immediately to bed. Even in part time employment, when she arrived home, she felt  tired and sore and needed her days off to recover. As she got older she found it more difficult to 'bounce back' and her tolerance of pain was diminishing. She used pain killers when the pain became 'insufferable.' The pain affected her sleep, and it was brought on by walking, sitting, housework and lying in certain positions. Sexual intercourse was painful and embarrassing. Pain interfered with shopping, and she was unable to enjoy her husband's interests in water skiing and boating.  She had to buy clothes which were more expensive to hide her deformities.

The curvature of the spine and protrusion of the hip bone are quite obvious. She walks now with a "pronounced limp" and when she stands with her legs apart she "totters" because of the difference in her leg lengths. She is unable to carry out a full range of household duties and has great difficulty with vacuuming, mopping, and cleaning the bathroom and windows. She cannot stand too long at an ironing board. Her physical condition affects the quality of her life on holidays; she cannot take long walks, drive long distances etc. Her leg has wasted. It is hard for her to get into or out of a car. She cannot help much in the garden. In the future, she will have increasing back pain leading to chronic backache.  She will need at least two hip replacements and a hip fusion, assuming that she lives a normal life expectancy, that the operations are successful, and that the prostheses last their maximum expected time limits. The hip operation should alleviate hip pain, but not pain in the back or in the knee, which is still ongoing. She has had one child (which was quite painful for her) but was unable to lift the child or take him for walks. The learned trial judge found her to be a person with a:
"Trojan spirit ... a resilient person prepared to suffer considerable pain and discomfort in order that she could hold down a quite responsible position in the bank. While that stoical attitude means that she has thereby reduced the amount of her pecuniary loss below that which a less stalwart person may be awarded, she must be compensated for the increased pain which she suffered for the purpose of earning that income."

In our view the award for pain and suffering is so low that it cannot be permitted to stand. Her injuries intrude into every aspect of her enjoyment of life and will continue to do so for probably the next fifteen years. Thereafter she will still suffer pain and discomfort, and will still need the operations previously mentioned. We consider that a fair award would be
$75,000 taking into account all of the contingencies, favourable and unfavourable, including the possibility of premature death.

Damages for gratuitous services provided by the appellant's husband
The learned trial judge's findings were that the appellant and her husband were married on 12 October 1985. The appellant was then nearly twenty-four years of age. The learned trial judge's findings as to the problems the appellant has with household chores have been mentioned above, under the heading of pain and suffering and loss of amenities of life. In addition his Honour found that the husband attends to most tasks at any height, for example, hanging out the washing, and cleaning windows. He also irons "on demand," and that he did most of the housework because the appellant was physically unable to do so. He accepted the husband's evidence, a witness he described as reliable and not prone to exaggeration, and his evidence that in the future he will clean the bathrooms, and windows and do most of the gardening in their new home. Evidence was called, which the learned trial judge apparently accepted, that it would take approximately twenty-one hours per week to clean the bathrooms, vacuum the house, do the ironing (for both the appellant and her husband) and clean shelves, windows and curtains, and that the rate which cleaners in Darwin charged was $12.50 per hour. There was no evidence as to the rate in Newcastle where the appellant's home is situated.

Mr Johnstone's evidence was that the hip replacement would improve the appellant's ability to do household chores, but she would still have problems with her back.

The learned trial judge refused to allow any damages under this head. His reasons were as follows:
"I am not satisfied that it would be necessary to obtain hired	domestic		help.	It			is clear	that		the	plaintiff's husband does a considerable amount of the household work. However, this is not a case where the wife's condition changed		after			marriage		due			to			injury,		requiring significant domestic rearrangements. I consider that this is	a		case		where	the		couple	made		ordinary		sensible domestic arrangements		after marriage and it is not one where it can fairly  be said  that it  would otherwise	be reasonably necessary to provide the services carried  out by Mr Shaw at a cost. What he does, does not 'go beyond  the mere rearrangement of domestic chores or the tender attention		to	comfort			that	can		be			expected		in	an· affectionate environment': Hodges v Frost (supra) at 380.
Accordingly, I would not make any award under this head."

Mr Waters submitted that since the hearing the relevant law on this topic had been clarified by the judgment  of  the High Court in Van Gervan v Fenton (1991-1992) 175 CLR 327, and that it was not necessary, as the Full Federal Court had found in Hodges v Frost (1984) 53 ALR 373 at 380-1 to show that,  but  for the gratuitous services of another, it would have been necessary to secure the services of another at a cost. The Federal Court had relied upon certain observations of Gibbs J (as he then was) in Griffiths v Kerkemeyer (1977) 139 CLR 161. In Van Gervan v Fenton, the majority of the High  Court discussed the approach of Gibbs J in Griffiths  v  Kerkemeyer and held that it was not necessary to show, as Gibbs J had thought, that the need for the services is or may  be  productive of financial loss: see Mason CJ, Toohey  and McHugh JJ at 332-3; Brennan J at 340-1; Gaudron J  at 347; and  that all that the appellant  had to show was that the appellant  had a need for those services. Thus Mr Waters submitted that his Honour had applied the wrong test and that on the factual findings he made, the need for the husband's services had been amply demonstrated. In our opinion the appellant's  submission is correct. Plainly the appellant simply could not do many of the usual household chores, except to a minimal  extent,  and the need was therefore demonstrated.  It  is not to the point, in our opinion, to enquire whether the appellant's  condition had changed after marriage due to the injury. What is relevant

is whether the appellant had demonstrated a need for assistance, and in considering this question, the existence of a husband, friend or relative who is able and willing to provide the services and does so gratuitously, is relevant to the extent that this demonstrates that need.

There is a difference of view between the members of the court in Van Gervan v Fenton as to the relevance of any services provided for by the caregiver which are incidental to the relationship, particularly where those services would have been provided in any event. Mason CJ, Toohey and McHugh JJ said (at 338):
"No doubt some of the services which are now needed by the appellant were provided for him by his wife before the accident, but with great respect to those judges who have taken the contrary view, no allowance in favour of the respondent can be made for such matters. A defendant is no more entitled to have the pre-accident voluntary contribution of a spouse taken into account than a defendant would be entitled to have the pre-accident work of a paid housekeeper taken into account. If the defendant has created the need for the services, that person is not entitled to have the damages reduced because, before the accident, the plaintiff elected to pay for similar services or had the benefit of having them performed gratuitously. By the tort, the defendant has transformed the choice of the plaintiff to pay for such services or to have them done voluntarily into the need for the plaintiff to have those services performed for him or her."

Gaudron J's approach (at 350) is consistent with this view. Brennan J (at 341) was of the view that:
"... it is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them, provided the plaintiff is able to offer services to the care provider in return."

Deane and Dawson JJ, who were in the dissent, also favoured Brennan's approach: see at 344.

In this case, the accident occurred when the appellant was aged twelve. There was no antecedent relationship between the

appellant and her husband.  Nor was there evidence that  prior to her marriage, she was then in need of gratuitous services. The need appears to have arisen mainly in the last few years, but it is ongoing, and can be expected to last at least until the appellant's hip replacement operation takes place. In our opinion it is wholly inconsistent with principle that  the matter is to be approached on the basis that the appellant and her husband made ordinary sensible  arrangements  after marriage. There is, in any event, no evidence that  the appellant was able to offer any countervailing services to her husband in return for his undertaking most of the domestic chores. It therefore does not matter which  view  is adopted; the appellant's demonstrated needs must be assessed  on the basis of the actual market cost of providing those services to her. In this case the appellant accepted  that about half  of the services provided by the husband were directed towards her own needs, and claimed a past and ongoing loss of $52 per week calculated on the basis of 50 per cent of $10 per hour for twenty-one hours per week. The respondent submitted that there was little evidence lead to establish the time spent by the appellant's husband, and no evidence as to how much time the appellant herself spent doing whatever chores  she was still able to do, e.g. mopping floors. In our view the respondent is correct so far as the time the appellant or her  husband actually spent in the past, or now spend, the only evidence as to the hours involved being from Mrs Thiele, a cleaner, whose estimates were based on the appellant's new home in Newcastle. This evidence is a satisfactory basis upon which to make an assessment for the future, but, at most,  it is only  a guide for the value of the past loss, which is not able to be calculated with any degree of precision. The  other  factor which has to be taken into account is that,  the extent  to which she will still need services after her hip operation is not able to be precisely ascertained. Nevertheless the court's duty is to do its best to place a value on that loss, despite the paucity of materials available: see Luntz 3rd ed p98 and cases therein cited.

The value of $52 per week is roughly $2,700 per annum. Using this sum as a guide, and bearing in mind that the evidence is that the appellant's condition worsened gradually over the period of her marriage, we would allow the sum of $6,000 for the value of the appellant's husband's services prior to date of trial.

The present value of $52 per week over the next fifteen years, using 3 per cent tables, is approximately $32,000, excluding mortality. There is a possibility that the appellant may have the hip operation earlier or later than aged forty-five, but we consider that those possibilities are roughly equal. The only other contingency in this period is the slight possibility of early death due to accident or other unforeseen cause. We would therefore reduce the amount to $31,000 to allow for this contingency.

As to the remainder of the appellant's lifetime, if the appellant had needed to have the full measure of her husband's assistance from age thirty until death, the present value of that assistance based on $52 per week using 3 per cent discount tables is approximately $69,000 (see Table 4A in Luntz 3rd ed p549). After allowing for the $31,000, and using the difference as a guide, we would allow the sum of $10,000 for the value of the chance that services at some level will be needed after the age of forty-five until death. In arriving at this figure we have taken into account the fact that the appellant will not be in need of her husband's services during the period of future hospitalization and for which full allowance has been made elsewhere.

Accordingly we would allow the sum of $47,000 for damages under this head.

Discounting for contingencies and overlapping
Mr	Waters	contended		that the	learned	trial	judge	erred	in applying	a discount	of 30 per cent to the total figure of

$305,971. It was submitted that there was no justification for discounting past losses at all as those losses had already been found. We do not accept this as a general proposition applying to all past losses. There are many cases where a small discount for contingencies has been allowed for past loss of earning capacity: see the cases referred to in Luntz Assessment:.  of  Damages   for   Personal   Injury   and Deat:.h   3rd  ed, para 5.2.08. But as Luntz suggests, correctly in our opinion, the only contingency that needs to be taken into account in the case of a person whose employer is bound to pay for sick leave or other compensation during temporary absences from work due to illness is the slight one of a serious uncompensated injury, and this risk is more than outweighed by the fact that the damages will not be received until long after the time when the wages would have been enjoyed; although a small discount is still appropriate when the court has power to award interest on potential losses. There is no basis at all for applying a discount to damages assessed for past pain and suffering and loss of amenities, nor for the other heads of damage representing past losses. The events for which the appellant is entitled to be compensated have already occurred. What 'contingency' is this to take account of? As to 'overlapping,' it is difficult to see how there is any overlapping between the various heads of damage representing past losses. Whether any sum should be discounted for past loss of earning capacity depends upon whether the learned trial judge was correct in awarding interest on that past loss. We have reached the conclusion that no award for interest was permissible in this case (see below). We consider that past losses ought not to have been discounted at all.

As to future loses, there is no rule of law requiring a discount for contingencies in every case. Each case depends upon its own facts: see Teubner v Humble (1962-3) 108 CLR 491 at 508-9 per Windeyer J (with whom Dixon CJ and McTiernan J agreed). Not all contingencies or vicissitudes are harmful: see Bresatz v Przibilla (1962) 108 CLR 541 at 543-4 per Windeyer J; Elia v O'Byrne (1990) Aust Torts Rep 81-050 at 68,180-68,181. In the present case, the only specific adverse

contingency to which the learned trial judge referred is the possibility that the appellant may have another child in the future, which would necessarily entail some time off from work. The appellant's husband's evidence, which the learned trial judge accepted, was that he hoped that the appellant would then be able to give up work altogether, but for financial reasons this may not be possible. It was open to the learned trial judge to make a discount for the possibility that, in the future, the appellant may choose not to exercise her earning capacity, at least for a time, after the birth of a second child. No particular time is i4entified by his Honour but the appellant's evidence was that· she would take off two years after the child's birth. The other relevant contingencies which his Honour must have had in mind, were the possibilities of future non-employment and of early death during the relevant period due to other non-compensable causes. There was no evidence that the appellant had some medical condition, not caused by the accident, which would place her in any special risk category. Taking these latter contingencies alone, a further small discount is warranted: we would suggest a figure of 3 per cent.

As to overlapping in respect of future losses, the only items where there is some overlapping are: the amount allowed for future hospital expenses and the savings in damages to be allowed for the appellant's husband's services during these periods, as well as a deduction for the appellant's sustenance during these periods; and as well there is some overlapping between damages for loss of amenities and lost earning capacity bearing in mind the security that an award of damages will afford the appellant and the additional leisure time now available to her. There are no other items identified by the learned trial judge as warranting a deduction for overlapping. In our view, no deduction for overlapping ought to be made between the various 'conventional heads of damage' unless the overlapping is identified. The amount of any overlapping in this case is relatively small given that the period of time involved is likely to be small, and is still well into the future. On the other hand, his Honour made no award at all for

the possibility that the appellant's earning capacity after the first hip replacement might still be reduced. A discount rate of 30 per cent was in our opinion far too high in all the circumstances.
The appellant was aged thirty at the date of trial. On the findings made by his Honour, her loss of earning capacity was to be measured by reference to the difference between what she might have earned in full time employment and what she was presently able to earn, viz, $247.30 per week. The present net value of this loss using 3 per cent discount tables over fifteen years, excluding mortality, is $156,293. From this sum, the value of $247.30 per week for two years ($25,719.20) should be deducted to allow for the period when it is likely that the appellant would not exercise her earning capacity due to her decision to have another child. Allowance should then be made to reflect the possibility that the appellant might not conceive, or may not have the child, or may have the child later than might presently be expected. We would accordingly round off the deduction to $25,000 to reflect these possibilities. A further sum should be awarded to reflect the possibility discussed previously that she might still have an ongoing incapacity after fifteen years, including two periods when she will be unable to work at all for three months on each occasion. No precise calculation is possible, but we would allow a further sum of $15,000 to represent these possibilities, based on about a 20 per cent probability that the appellant would still suffer a diminution of her earning capacity to a not insignificant degree after the hip operation. From the resultant figures, a further deduction of
3 per cent is warranted to reflect the contingencies of future non-employment and premature death.

The tentative figures arrived at thus far are as follows:

Value of loss over next 15 years Less deduction for 2 years

Add allowance for incapacity after aged 55

156,293
25,000
131,293
15,000
146,293

Less allowance for contingencies
(mortality etc.) 3%	4,388
141,909

After making allowance for overlapping, we would allow the sum of $136,000 for loss of future earning capacity.

Interest on pre-judgment damages
The respondent cross-appealed against the award of interest on certain pretrial losses, viz, interest on lost earning capacity to date of trial and interest on pain and suffering and loss of amenities to date of trial. Alternatively the respondent submitted that if interest could be awarded, the rate chosen by the learned trial judge in relation to the non­ economic component of pretrial losses (4 per cent) ought to be halved in order to reflect the progressive accrual of the damages for those losses.

The cause of action in this case arose at the time of the accident, namely in August 1974. At that time, there was no statutory provision, similar to s84 of the present Supreme Court Act, empowering the court to award interest on damages awarded in respect of losses incurred up to the date of judgment. Section 84, by its terms, does not apply where the cause of action arose prior to the commencement of the Act on
1 October 1979. The learned trial judge was conscious of this difficulty, and based his power to award interest on s29 of Lord Tenterden's Act (the Civil Procedure Act 1833 (UK)) which was in force in the Northern Territory "at the relevant time" see Jones v South British Insurance Co Ltd (1984) ALR 408 at 413.

It was submitted by counsel for the respondent, Mr Coulehan, that Lord Tenterden's Act did not empower the court to award interest on general damages. This is undoubtedly correct: see Fox v Everingham and Howard (1983} 76 FLR 170 at 181-2 (Federal Court of Australia). Mr Waters, on the other hand, sought to justify the award on the basis that the court had power to award interest as part of the appellant's damages in

accordance with principles stated  by the High Court in Haines v Bendall {1991) 172 CLR 60 per Mason CJ, Dawson, Toohey and Gaudron JJ. Their Honours said (at 63}:

"The settled principle governing the assessment of compensatory damages, whether in actions for tort .or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed ..."

Reliance was also placed upon a passage in the joint judgment (at 66):
"An award of interest up to the date of judgment is an award of interest in the nature of damages: Fire and All Risks Insurance Co Ltd (1978) 140 CLR at 431. This statement acknowledges that the award of interest is an integral element in the attainment of the object of damages, namely, to compensate a plaintiff for injury sustained. Hence the award of interest is compensatory  in
character. While '[i J nterest should  not be   awarded  as
compensation for the damage done' (emphasis added) (Jefford v Gee [1970] 2 QB 130 at 146), the award of interest is nevertheless an essential element in the achievement of true compensation for that damage. In
Thompson v Faraonia (1979) 54 ALJR 231 at 233; 24 ALR 1  at 7, the Privy Council stated that '[t J he reason for awarding  interest  is  to  compensate  the  plaintiff for
having been kept out of money which theoretically was due to him at the date of his accident' (emphasis added): see also Batchelor v Burke (1981) 148 CLR at 455, per Gibbs CJ; MBP (SA) Pty Ltd v Gogic (1991) 171 CLR at 663-5;  cf.
Ruby v Marsh (1975) 132 CLR 642 at 652-3, per Barwick CJ. The award of interest for the period of delay in payment between the date of accrual of the cause of action and judgment affords the fair legal measure of compensation: Pheeney v Doolan [1977] 1 NSWLR 601 at 613, per Reynolds JA. Thus, it is the award of damages and, where appropriate, interest awarded on damages which allows the plaintiff to be placed in or restored  to the situation, as far as money can do, in which he or she would  have been but for the defendant's negligence."

In order to develop this theme, Mr waters submitted that interest was a mere head of  damage which the court had  power to award at common law, but which, until recently, for policy reasons which are no longer sound, the courts proscribed in cases of this kind. It is unnecessary to refer further to Mr Waters' argument because we are of the view that in this case

the authorities do not, at present, support the awarding of interest as part of the appellant's general damages.

First, it is to be observed that the comments made by their Honours in Haines v Bendall, which we have quoted above, were made in the context of a case where the court had a statutory power to award interest on damages. None of the members of the court referred to the court's earlier decision of Hungerfords and Others v Walker and Others (1990) 171 CLR 125 which specifically dealt with the power of a court to award interest as part of the loss, where no statutory power existed,  or where the statutory power was inadequate to fully compensate the injured plaintiff.

Secondly, in Hungerford v Walker, supra, it is apparent that the High Court did not go so far as to lay down as a general proposition, that the courts had a power to award interest as part of an injured plaintiff's damages in every case and in respect of every head of damage. Such an approach would accord with the approach in admiralty cases (discussed by Mason  CJ and Wilson J at 145) and of which Mason CJ and Wilson J said (at 149):
"Although the admiralty model has obvious  attractions, the common law has steadfastly declined over a very long time to adopt the admiralty approach in awarding compensation for late payment of damages in the general run of cases. But we see no reason for allowing the reluctance of the common law to extend to cases where the defendant's breach of contract or negligence has caused the plaintiff to pay away or the defendant to withhold money and, as a result, the plaintiff  has been deprived of the use of the money so paid away or withheld."

Brennan and Deane JJ said (at 152):
"There is, in our view, a critical distinction between an order that interest be paid upon an award of damages and an actual award of damages which represents compensation for a wrongfully caused loss of the use of money and  which is assessed wholly or partly by reference to the interest which would have been earned by safe investment of the money or which was in fact paid upon borrowings which otherwise would have been unnecessary  or retired. on the one hand, there is no common law power to make an order for the payment of interest to compensate for the

delay in obtaining payment of what the court assesses to be the appropriate measure of damages for a wrongful act. If such interest is to be awarded at common law, it must be	pursuant		to statutory		authority. On the other hand, there is no acceptable reason why the ordinary principles governing the recovery of common law damages should not, in an appropriate case, apply			to	entitle a plaintiff		to an		actual	award	of	damages			as	compensation	for			a wrongfully and foreseeably caused loss of the use of the money. To the extent that the reported cases support the proposition			that		damages		cannot			be		awarded	as compensation for the loss of the use of a specific sum of money which the wrongful act of a defendant has caused to be paid away or withheld, they are contrary to principle and			commercial	reality	and	should		not	be	followed." (Emphasis added).

Dawson J, at 163, limited the power even further, to cases where damages are assessed at the date of the wrong, and not  at the date of trial as in personal injury cases, and where there are foreseeable future losses which flow from the wrong, not being merely caused by delay in compensating for the  wrong.

In Commonwealth of Australia v Chessell (1991) 30 FCR 154, the majority of the Federal Court of Australia (Sheppard  and Wilcox JJ) in separate judgments, reached the conclusion that Hungerfords v Walker, supra, did not establish a general power to award interest as damages at common law in a personal injuries case, at least in the absence of evidence of consequential financial loss (see Sheppard  J  at 161); Wilcox J at 163-4). That was a case which was specifically concerned with interest qua damages on lost earnings to the date of trial.

In the present case, there is no evidence that the appellant was caused to pay away money in respect of her lost earning capacity to the date of trial, and such a concept does not apply in the case of damages for pain and suffering. There is no evidence that the respondent's tort caused the withholding of money. To award interest on these losses would  be to make an award solely on the basis that the appellant has been delayed in obtaining payment of what the court has assessed to be the appropriate measure of her damages for these heads of

damage. Accordingly,	in our opinion, no interest should have been awarded and we would allow the cross-appeal.

It	is	therefore	unnecessary	to	consider	the	alternative submission as to the rate of interest to be applied.

Conclusions
We would therefore allow the appeal and the cross-appeal, and set aside the award made by Kearney J, and in lieu thereof substitute an award in favour of the appellant in the sum of
$344,578 calculated as follows:

Pecuniary Losses	
lA	Motor Vehicle (past)	$3,000	
lB	Motor Vehicle (future)	4,045	
2	Shoes	1,529	
3	Future Medical Expenses	40,000	
4A	Loss of earning capacity
to date of trial	30,004	
4B	Interest on this component	nil	
5	Future loss of earning capacity	136,000	
6	Home help	47,000	
7	Loss of benefit of concessional
Bank Loan	8,000	
Non Pecuniary Losses

8A	Pain and suffering and loss of amenities of life
8B	Interest on pretrial component of this head

75,000
 	nil

TOTAL	$344,578

As to the costs of the appeal, the appellant has been substantially successful on the appeal and the respondent has succeeded on the cross-appeal. The majority of the court's  time has been taken up with arguing the appeal. Accordingly we consider that the respondent ought to pay 85 per cent of the appellant's costs of the appeal.