TRANSPORT ACCIDENT COMMISSION v DANNY TIMOTHY PASTUCH [2025] SASCA 120

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE SLATTERY) DCCIV-19-1407 Appellant: TRANSPORT ACCIDENT COMMISSION Counsel: MR M RODER KC WITH MR M TILLEY - Solicitor: HWL EBSWORTH LAWYERS First Respondent: DANNY TIMOTHY PASTUCH Counsel: MR M FRAYNE SC WITH MR A WARD - Solicitor: WALLMANS LAWYERS Second Respondent: SAMANTHA LEE LEWIS Counsel: MR M FRAYNE SC WITH MR A WARD - Solicitor: WALLMANS LAWYERS Hearing Date/s: 05/06/2024 File No/s: CIV-23-014334 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. TRANSPORT ACCIDENT COMMISSION v PASTUCH & ANOR [2025] SASCA 120 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby) 16 October 2025 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES - GENERAL PRINCIPLES - PERSONAL INJURY OR DEATH CASES DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INCOME LOSS AND LOSS OF EARNING CAPACITY Mr Pastuch was driving a prime mover between South Australia and Western Australia when another prime mover travelling in the opposite direction collided with his vehicle. He claimed damages for the personal injuries he sustained by reason of the collision, and Ms Lewis, his wife, claimed damages for loss of consortium. The trial before the primary judge was confined to issues of quantum and proceeded as an assessment of damages only, liability having been admitted with an agreement that damages were to be reduced by 25 per cent for contributory negligence because Mr Pastuch was not wearing a seatbelt at the time of the collision. The trial judge awarded damages in the amount of $964,558 for Mr Pastuch and $37,000 for Ms Lewis. The appellant’s grounds of appeal relate to the primary judge’s assessment of Mr Pastuch’s economic loss (Grounds 1 to 3) and award for future care (Ground 4). The appellant also complains that Ms Lewis’ award for loss of consortium was erroneously high (Ground 5). -- 1 of 58 -- Held, per Doyle JA, Livesey P and Bleby JA agreeing, granting permission to appeal, setting aside the judgments in favour of Mr Pastuch and Ms Lewis, and entering judgments reflecting reduced awards for both: 1. Observations as to the appellate review of damages for personal injury. 2. The judge erred in determining Mr Pastuch’s pre-accident earning capacity on the basis that he would have increased his working hours to five and a half days per week to age 67 but for the accident, and in assessing Mr Pastuch’s residual earning capacity as nominal. 3. As such, the judge’s assessment of Mr Pastuch’s economic loss and awards for past and future economic loss were erroneously high and manifestly excessive. 4. The judge’s award for commercial services was erroneous to the extent that it relied upon s 58 of the CLA without Mr Pastuch having established more than an injury-related need for commercial, rather than gratuitous, services. 5. Mr Pastuch’s injuries and subsequent deterioration in ability to contribute to his relationship with Ms Lewis were not so severe as to justify the award for loss of consortium made by the judge. Civil Liability Act 1936 (SA) s 49(3), s 54, s 55, s 56A, s 56A(5), s 58, s 58(1), s 58(3), s 58(4), s 58(4)(a), s 58(4)(a)(i), s 58(4)(a)(ii), s 58(4)(a)(ii)(A), s 58(4)(a)(ii)(B), s 65; Transport Accident Act 1986 (Vic) s 93; Civil Liability Act 2002 (NSW) s 16; Civil Liability Regulations 2013 (SA) reg 19, referred to. Allesch v Maunz (2000) 203 CLR 172; Amaca Pty Ltd v Latz (2018) 264 CLR 505; Amaca Pty Ltd v Werfel (2020) 138 SASR 295; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93; Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; Australian Competition and Consumer Commission v Medibank Private Limited (2018) 267 FCR 544; Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; Battunga Country Lions Club v Paues [2021] SASCA 72; Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370; Chappel v Hart (1998) 195 CLR 232; Chen v Kmart Australia Ltd [2023] NSWCA 96; Connelly v Transport Accident Commission (2024) 73 VR 257; Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; CSR Ltd v Eddy (2005) 226 CLR 1; Davies v Powell Duffryn Associated Colleries Ltd [1942] AC 601; ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193; Eicas v Dawson [2016] SASCFC 124; Elliot and Anor v Andrew [2009] SADC 31; Finniss v State of New South Wales [2023] NSWCA 292; Fox v Percy (2003) 214 CLR 118; Gordon v Truong [2014] NSWCA 97; Graham v Baker (1961) 106 CLR 340; Hall v State of New South Wales [2014] NSWCA 154; Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; Hill v Forrester (2020) 79 NSWLR 479; House v The King (1936) 55 CLR 499; Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934; Husher v Husher (1999) 197 CLR 138; Jams 2 Pty Ltd v Stubbings [2020] VSCA 200; Jonval Builders Pty Ltd v Commissioner for Fair Trading (2020) 383 ALR 334; Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; Kriz v King [2007] 1 Qd R 327; Lee v Lee (2019) 266 CLR 129; Livingstone v Rawyards Coal Co (1880) 5 App Cas 25; Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67; Mannix Electrical Pty Ltd v Belport Pty Ltd (2019) 134 SASR 438; Mastaglia v Burns [2006] WASCA 190; McKenzie v Wood [2015] NSWCA 142; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95; Miller v Galderisi [2009] NSWCA 353; Miller v Jennings (1954) 92 CLR 190; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Montemaggiori v Wilson [2011] WASCA 177; Moore (a pseudonym) v The King (2024) 98 ALJR 1119; Murray v Hill [2025] WASCA 77; Moran v McMahon [1985] 3 NSWLR 700; Palmer v Transport Accident Commission [2024] VSCA 254; Pastuch v Transport Accident Commission [2023] SADC 150; Pennington v Norris (1956) 96 CLR 10; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; Planet Fishers Pty Ltd v La Rosa (1968) 119 CLR 118; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; R v Bauer (a pseudonym) (2018) 266 CLR 56; Rabay v Bristow [2005] NSWCA 199; Ridolfi v Hammond (No 2) [2012] NSWCA 67; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Sampco Pty Ltd v Wurth [2015] NSWCA 117; Sanders v Mount Isa Mines Ltd [2023] QSC 188; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Singer v Berghouse (No 2) (1994) 181 CLR 201; Stanberg v State of New South Wales [2025] NSWCA 127; Tabloid Pty Ltd v Pringle [2024] WASCA 152; -- 2 of 58 -- Thorne v Kennedy (2017) 263 CLR 85; Tiburzi v Butler [2017] SASCFC 89; Todorovic v Waller (1981) 150 CLR 402; Toohey v Hollier (1955) 92 CLR 618; Van Gervan v Fenton (1992) 175 CLR 327; Van Velzen v Wagener (1975) 10 SASR 549; Wade v Australian Railways Historical Society (2000) 77 SASR 221; Wainwright v Barrick Gold of Australia Limited [2014] WASCA 15; Warren v Coombes (1979) 142 CLR 531; White v Benjamin [2015] NSWCA 75; White v Redding (2019) 99 NSWLR 605, considered. -- 3 of 58 -- -- 4 of 58 -- TRANSPORT ACCIDENT COMMISSION v PASTUCH & ANOR [2025] SASCA 120 Court of Appeal – Civil: Livesey P, S Doyle and Bleby JJA 1 LIVESEY P: I agree with the reasons and proposed orders of S Doyle JA. 2 S DOYLE JA: This is an appeal from an assessment of damages arising out of a collision between two prime movers which occurred on 6 November 2016. The first respondent (Mr Pastuch) was the driver of one vehicle, and suffered personal injury. The claim for damages included a claim for loss of consortium by his wife, the second respondent (Ms Lewis). 3 The circumstances of the accident were that Mr Pastuch was driving a prime mover towing a road train along the Eyre Highway, outside of Penong in western South Australia. Mr Kansy-Grosser (the deceased, insured by the appellant) was driving a prime mover towing a road train in the opposite direction on the same highway. 4 As the deceased’s vehicle approached Mr Pastuch’s vehicle, Mr Pastuch could see from some distance that it was veering onto the wrong side of the road. He tried to alert the deceased, but once it became obvious that they were bound for a head-on collision, Mr Pastuch turned his vehicle sharply to the left, causing it to leave the road and roll onto its side. The deceased’s prime mover hit Mr Pastuch’s prime mover and veered off into the trees, before exploding and being engulfed in flames. 5 Mr Pastuch was initially trapped in his prime mover, and feared that he and his vehicle would also be engulfed in flames. However, he was eventually freed from his vehicle with the assistance of his co-driver (who had been asleep in the cabin at the time of the accident) and others who soon arrived at the scene of the accident. 6 As a result of the collision, Mr Pastuch suffered multiple fractures in his right arm, a fractured clavicle, an injury to his coccyx, injuries to his back and neck, lacerations to his nose, and generalised bruising. He later developed a post- traumatic stress disorder and depression. 7 Liability was admitted, but with an agreement that damages were to be reduced by 25 per cent on account of contributory negligence under s 49(3) of the Civil Liability Act 1936 (SA) (CLA) because Mr Pastuch was not wearing a seatbelt at the time of the accident. -- 5 of 58 -- [2025] SASCA 120 S Doyle JA 2 8 The matter proceeded as an assessment of damages. The trial commenced on 6 February 2023, with reasons1 delivered on 9 November 2023 and judgment entered on 21 November 2023. 9 The judge concluded his reasons with the following summary of Mr Pastuch’s entitlement to damages: Past losses Non-economic loss $17,850 Past economic loss (including past loss of superannuation benefits ($43,374), but less a reduction of 20% pursuant to s 56A(5) of the CLA) $353,928 Past medical expenses and special damages $29,030 Total amount for past losses $400,809 Future losses Future economic loss (including future superannuation losses, but less reductions for future earnings ($60,000), of 25 % for contingencies and 20 % under s 56A(5) of the CLA) $718,045 Wilson v McLeay damages $1,000 Gratuitous services (past and future) $16,172 Future care ($85,000, reduced by 25 % for contingencies) $63,750 Future medical expenses $25,000 Spargo v Greatorex damages $30,000 Total amount for future losses $853,967 Total amount of past and future losses $1,254,776 After 25% reduction (s 49(3) of the CLA) $941,082 10 After allowing $23,476 for interest, the judge awarded Mr Pastuch damages in the amount of $964,558. 11 The judge assessed Ms Lewis’ loss of consortium at $50,000. After a reduction of 25 per cent under s 49(3) of the CLA on account of Mr Pastuch not wearing a seat belt, the judge awarded Ms Lewis damages in the amount of $37,500. The appeal 12 In challenging the primary judge’s assessment of damages, the appellant relies upon five grounds of appeal. 1 Pastuch v Transport Accident Commission [2023] SADC 150 (Reasons). -- 6 of 58 -- [2025] SASCA 120 S Doyle JA 3 13 The first three grounds involve challenges to the judge’s assessment of Mr Pastuch’s economic loss. In particular, the appellant argues that the judge erred: • in finding, and then assessing, past and future economic loss on the basis that Mr Pastuch would have sought work as an interstate truck driver working 66 hours per week from a date not more than six months after the accident and continuing until retirement at the age of 67 (Ground 2); • in finding that the appropriate deduction for future earnings (or residual earning capacity) was $60,000 (Ground 3); and • in awarding amounts for past and future economic loss which were unreasonably high (Ground 1). 14 Ground 4 involves a challenge to the award for future care on the basis that the judge erred in awarding damages for future paid or commercial care in place of gratuitous care, in circumstances where there was no entitlement to an allowance for gratuitous care under s 58(4) of the CLA, and there was no evidence to the effect that gratuitous services would no longer be available from Mr Pastuch’s wife. 15 Ground 5 involves a challenge to the award for loss of consortium in favour of Ms Lewis on the basis that it was unreasonably high. 16 Before addressing the complaints raised on appeal in more detail, it is necessary to address several preliminary matters. I propose to commence by addressing the principles governing the appellate review of awards of damages for personal injury. I will then address the evidence and findings in relation to the injuries suffered by Mr Pastuch, and in relation to Mr Pastuch’s claim for damages for loss of earning capacity. In so doing, I will confine myself to matters that were the subject of findings, or at least aspects of the evidence which were not contested and were apparently accepted and relied upon by the judge. Appellate review of claims for damages for personal injury 17 The appeal to this Court is by way of rehearing. This requires that the appellate court conduct a ‘real review’, or independent assessment, of the evidence at trial in order to determine whether the judge erred in fact or law.2 Whilst this ordinarily involves the appellate court forming its own view as to the appropriate outcome,3 the appeal is not a hearing de novo. The appellate court must have due 2 Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ); Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [114] (Doyle, Livesey and Bleby JJA). 3 Warren v Coombes (1979) 142 CLR 531 at 551 (Gibbs ACJ, Jacobs and Murphy JJ). -- 7 of 58 -- [2025] SASCA 120 S Doyle JA 4 regard to the findings and reasoning below, and should not substitute its own view, or otherwise interfere, unless satisfied that the trial judge fell into error.4 18 Having said that a ‘real review’ of the evidence at trial ordinarily involves the appellate court forming its own view as to the appropriate outcome, this is subject to the need for appellate restraint in two significant respects: (i) when reviewing any decision which is discretionary in nature; and (ii) when reviewing any finding of fact which was informed by the trial judge’s advantage of having seen and heard the witnesses give their evidence in the context of the evidence as a whole. 19 Given the nature of the matters raised by the appellant’s grounds of appeal, it is appropriate to make some observations about each of these aspects of the need for appellate restraint. Appellate restraint: the standard of deference 20 As to this first aspect of the requirement for appellate restraint, it is well recognised that there are two standards of appellate review.5 21 The first standard is sometimes referred to as the standard of correctness, and involves an application of the ordinary principles of appellate review described in Warren v Coombes.6 The decision under review being one in respect of which the law demands a particular, or unique, outcome, it is treated as either correct or incorrect. In other words, there is only one correct answer. As a consequence, subject only to the second aspect of appellate restraint (described below), the appellate court must form, and give effect to, its own view as to the appropriate outcome. There is no need for appellate restraint in finding error. 22 The second standard of appellate review is sometimes referred to as the standard of deference, and involves an application of the principles of appellate restraint identified in House v The King.7 The decision under review being one in respect of which the primary judge was exercising a discretion, the law does not demand a unique outcome. Rather than treating the decision as correct or incorrect, the law recognises an area of decisional freedom, or tolerates more than one outcome. Indeed, depending on the decision, the law may tolerate a range of outcomes. The appellate court must therefore proceed with restraint before finding error. Finding error requires satisfaction that the discretion miscarried in some way, either because the judge misunderstood the relevant principles or facts, took into account an irrelevant or extraneous consideration, failed to take into account 4 Allesch v Maunz (2000) 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ); Wade v Australian Railways Historical Society (2000) 77 SASR 221 at [38]-[40] (Doyle CJ); Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [114] (Doyle, Livesey and Bleby JJA); Tabloid Pty Ltd v Pringle [2024] WASCA 152 at [99(3)] (Vaughan JA, Vandongen JA and Tottle J); Palmer v Transport Accident Commission [2024] VSCA 254 at [54] (Niall, Walker and Macauley JJA). 5 Minister for Immigration and Border Protection v SZFW (2018) 264 CLR 541 at [35]-[50] (Gageler J). 6 Warren v Coombes (1979) 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ). 7 House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). -- 8 of 58 -- [2025] SASCA 120 S Doyle JA 5 a relevant consideration, or otherwise arrived at a conclusion which was plainly unjust or unreasonable in the sense that it was outside the range of conclusions which a decision-maker might reasonably have reached. 23 In addressing the applicability of these two standards, recent decisions of the High Court have tended to emphasise the breadth of application of the standard of correctness. The Court has explained that, even if the decision under review is one which involves an evaluative assessment or conclusion, and is one in respect of which reasonable minds might differ, it may nevertheless attract the standard of correctness.8 24 The High Court has tended to approach determination of the applicable standard by reference to whether or not the issue for determination is one which demands a unique outcome.9 At the same time, it may be observed that this ‘test’ is not much more than a description of the differences between the applicable standards, and hence more a statement of a conclusion as to the applicable standard of review than a means of determining which standard applies.10 25 In my view, focussing upon whether a decision involves the exercise of a discretion may be similarly unhelpful.11 As the concept of a ‘discretion’ is somewhat protean, if not unstable, in meaning, its use as a criterion for the application of the standard of deference is problematic.12 It may be preferable to regard it more as a convenient label for those decisions which attract the standard of deference, rather than as the criterion for the application of that standard. Indeed, as an indication of the problematic use of ‘discretion’ as a criterion for the application of the standard of deference, some authorities have described this standard as extending to decisions which are either akin to a discretion, or so closely analogous to a discretion as to justify the application of that standard. 26 Other considerations which have been identified as relevant in determining which standard applies include:13 the terms of any statutory formulation of the issue for decision; the nature and breadth of the considerations relevant to the decision; any expertise on the part of the designated decision-maker; whether the decision permits only of binary outcomes; and the nature of the legal rights or relations affected by the decision. As to the last of these considerations, a decision may more naturally attract the standard of correctness upon appellate review where it involves consideration of the public interest rather than merely private rights and 8 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [49] (Gageler J), [150] (Edelman J); R v Bauer (a pseudonym) (2018) 266 CLR 56 at [61] (the Court); Moore (a pseudonym) v The King (2024) 98 ALJR 1119 at [15] (the Court); Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 at [76] (Edelman J). 9 Moore (a pseudonym) v The King (2024) 98 ALJR 1119 at [15] (the Court), quoting Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [49] (Gageler J). 10 Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 at [78] (Edelman J). 11 Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 at [76] (Edelman J). 12 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [144]-[149] (Edelman J). 13 See, for example, Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 at [80] (Edelman J). -- 9 of 58 -- [2025] SASCA 120 S Doyle JA 6 interests. That is particularly so where those rights and interests are only procedural rather than substantive in nature. 27 For the reasons which follow, I consider that appellate challenges to awards of damages for personal injury will generally, although not always and not necessarily in all respects, be subject to the standard of deference. 28 In reasoning to this conclusion, the starting point is that damages recoverable by an injured plaintiff are often described as encompassing three types of loss:14 (i) non-pecuniary loss (such as pain and suffering); (ii) loss of earning capacity; and (iii) actual financial loss (sometimes referred to as special damages, and relating to matters such as medical, accommodation and other rehabilitative expenses). 29 At the same time, it has become conventional to further divide a plaintiff’s damages into various components or heads of damages. As elaborated upon later in these reasons, a plaintiff’s claim for economic loss is generally divided into past and future economic loss, with further separate amounts for past and future loss of superannuation. Separate heads of damages are usually identified for components of the plaintiff’s loss such as past and future care (with each of these often divided into separate amounts for gratuitous services and commercial services), Wilson v McLeay damages, Spargo v Greatorex damages, and damages for loss of expectation of life. Special damages may also be divided into various separate heads of loss. 30 Importantly, as well as it being conventional to divide the assessment of damages into these various heads of loss, it has become conventional for appellate courts to entertain challenges to these individual heads of damages, rather than confining an appellant to a challenge to the ultimate award. This approach has extended to permitting an appellate reassessment of damages confined to particular heads of damage.15 In my view, it is generally appropriate and convenient to proceed on this basis, and certainly the parties to this appeal have approached the matter on that basis. 31 Whilst there has been statutory intervention in relation to some aspects of the task, the trial judge typically exercises a significant degree of judgment in assessing damages for the various heads of loss mentioned above. Most remain incapable of precise or arithmetic quantification. Rather, they often depend upon matters of opinion, impression, estimation, and even a degree of speculation.16 14 CSR Ltd v Eddy (2005) 226 CLR 1 at [28]-[31] (Gleeson CJ, Gummow and Heydon JJ); Amaca Pty Ltd v Latz (2018) 264 CLR 505 at [88] (Bell, Gageler, Nettle, Gordon and Edelman JJ); Battunga Country Lions Club v Paues [2021] SASCA 72 at [36] (Kelly P, Doyle and Bleby JJA). 15 See, for example, Tabloid Pty Ltd v Pringle [2024] WASCA 152 at [137] (Vaughan JA, Vandongen JA and Tottle J). 16 Todorovic v Waller (1981) 150 CLR 402 at 412-413 (Gibbs CJ and Wilson J); Amaca Pty Ltd v Latz (2018) 264 CLR 505 at [92] (Bell, Gageler, Nettle, Gordon and Edelman JJ); White v Redding (2019) 99 NSWLR 605 at [86], [88] (White JA). -- 10 of 58 -- [2025] SASCA 120 S Doyle JA 7 32 Certainly that has traditionally been true of any assessment of damages for pain and suffering, and loss of the amenities of life. However, it is also generally true of any attempt to assess damages for loss of earning capacity. As the High Court explained in the passage from Todorovic v Waller set out in full later in these reasons,17 assessing damages for loss of earning capacity requires a comparison of what the plaintiff might have earned if he or she had not been injured with what he or she is likely to earn as a result of being injured; and, as such, involves ‘a double exercise in the art of prophesying’. 33 The significant level of judgment involved in assessing the various heads of damages has generally led to appellate courts applying the standard of deference when addressing challenges on appeal. 34 In Miller v Jennings,18 Dixon CJ and Kitto J held that before an appellate court can interfere with an award of damages, it must be satisfied that the trial judge ‘acted on a wrong principle of law, or has misapprehended the facts, or has for those or other reasons made a wholly erroneous estimate of the damage suffered’. Their Honours explained that, the decision being ‘more like an exercise of discretion’, an ‘erroneous estimate of the damage’ was one which was beyond the limits of what a sound discretionary judgment would reasonably involve, being ‘so inadequate or unreasonable as to justify the conclusion that it has been erroneously reached’.19 35 This approach has been recently applied by this Court in determining appellate challenges to awards of damages for personal injury in both Amaca Pty Ltd v Werfel20 (damages for pain and suffering, and loss of the amenities of life) and Battunga Country Club v Paues21 (damages for loss of earning capacity). 36 The Western Australian Court of Appeal adopted this approach in Tabloid Pty Ltd v Pringle:22 It should also be remembered that the assessment of damages for personal injuries in an action for negligence is not an exact science. Ultimately the process must be one of judgment rather than calculation. Some aspects of the exercise can only be intuitive. In any event the process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case. 17 Todorovic v Waller (1981) 150 CLR 402 at 412-413 (Gibbs CJ and Wilson J). 18 Miller v Jennings (1954) 92 CLR 190; see also Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. 19 Miller v Jennings (1954) 92 CLR 190 at 195-197 (Dixon CJ and Kitto J), drawing upon a passage from Davies v Powell Duffryn Associated Colleries Ltd [1942] AC 601 at 616-617 (Lord Wright). 20 Amaca Pty Ltd v Werfel (2020) 138 SASR 295 at [391]ff (Kourakis CJ, Nicholson and Livesey JJ). 21 Battunga Country Lions Club v Paues [2021] SASCA 72 at [66] (Kelly P, Doyle and Bleby JJA). 22 See also Tabloid v Pringle [2024] WASCA 152 at [57]-[60] (Vaughan JA, Vandongen JA and Tottle J) (omitting citations); see also Wainwright v Barrick Gold of Australia Limited [2014] WASCA 15 at [88] (Murphy JA, Pullin and Newnes JJA agreeing) (in relation to assessments of economic loss involving past and future hypotheticals). -- 11 of 58 -- [2025] SASCA 120 S Doyle JA 8 The nature of such an assessment has implications for appellate review. It is well established that: 1. An assessment of damages in an action for negligence has many of the characteristics of a discretionary judgment. 2. In general, an appeal from a trial judge's assessment of damages for non-economic loss for a personal injury is to be determined in the same manner as an appeal from the exercise of discretion of a trial judge - an error must be identified within the terms of House v The King. (This principle is of limited significance to the present appeal so far as the appellant's challenge is directed to the primary judge's assessment of loss of earning capacity). 3. There is a similar need for appellate restraint in review of the past and future hypotheticals of an assessment of damages for lost earning capacity - at least where the decision reflects a degree of judicial prophesy or speculation. Appellate courts observe restraint in recognition of the necessary imprecision and evaluation involved in determining the likelihood that a past hypothetical event would have occurred or a future hypothetical event will occur. 4. In order to justify review on the ground that an award is excessive the compensation must be so excessive as to be beyond the limits of what a sound discretionary judgment could reasonably adopt. As to the third of those principles, it should be emphasised that the assessment of future loss of earning capacity involves a 'double exercise' in the art of prophesying - what the future would have been if the injury had not occurred and what it is now likely to be. The requirement for appellate restraint recognises that the task undertaken by the primary judge is an exercise in judgment rather than calculation. An appellate court cannot interfere with an award of damages merely because it would have awarded more or less had it tried the case at first instance. Nor is an appellate court to approach its evaluation of an assessment of damages by determining the amount it would award left to itself as the basis of the decision as to whether the award is so disproportionate as to go beyond the range of a sound exercise of judgment in the awarding of damages. Instead it must be demonstrated that the trial judge's exercise of judgment has miscarried because, for example, the trial judge acted on a wrong principle of law or has misapprehended the facts or the award is so inordinately low or so inordinately high that it is apparent that the trial judge has made a 'wholly erroneous' estimate of the damage suffered. 37 At the same time, there have been some interstate decisions which have applied the standard of correctness in relation to certain aspects of the appellate review of personal injury damages awards. 38 For example, in Connelly v Transport Accident Commission,23 the Victorian Court of Appeal, overruling earlier decisions to the contrary, held that the standard of correctness applied to the appellate review of a decision whether an injury was a ‘serious injury’ for the purposes of s 93 of the Transport Accident Act 1986 (Vic). In holding that there was only one legally permissible answer, even though it 23 Connelly v Transport Accident Commission (2024) 73 VR 257 at [32]-[40] (Beach JA, Niall JA and J Forrest AJA); applied in Palmer v Transport Accident Commission [2024] VSCA 254 at [51] (Niall, Walker and Macauley JJA). -- 12 of 58 -- [2025] SASCA 120 S Doyle JA 9 involved a value judgment, their Honours emphasised that the decision admitted of only binary outcomes (either the injury was, or was not, serious). Their Honours contrasted this decision with the range of legitimate answers that were legally permissible in the case of an assessment of damages for non-economic loss. 39 In New South Wales, different views have been expressed as to the standard of appellate review which applies in the context of a decision under s 16 of the Civil Liability Act 2002 (NSW) as to the severity of an injured plaintiff’s non- economic loss as a proportion of the most extreme case. Despite the decision requiring determination of a percentage figure, and hence not involving a choice between binary outcomes, it has been suggested that, because ‘the task remains conceptually distinct from the exercise of a discretionary power’, its review on appeal is governed by the principles in Warren v Coombes rather than the principles in House v The King.24 On the other hand, in White v Redding,25 the majority (Gleeson and White JJA) took a different view, holding that a decision under s 16 was subject to the standard of deference when challenged on appeal. Other judges have declined to express a concluded view.26 40 It seems to me that some of the concerns expressed about applying the standard of deference to the appellate review of damages in personal injury cases stem from an undue focus upon whether it is appropriate to describe the impugned decision as involving the exercise of a discretion, or a discretionary power. Both Gleeson and White JJA made observations to similar effect in White v Redding.27 As I have said, I do not think this should be the focus in determining whether a decision attracts the standard of deference on appeal. In my view, the focus should be on whether the law should treat the decision as one which demands a unique outcome, having regard to the considerations mentioned above. 41 Some support for this approach may be found in the application of the standard of deference to decisions made in family provision claims; that is, in determining whether the claimant has been left without adequate provision for his or her proper maintenance, support, education or advancement in life. Whilst views may differ as to whether it is apt to describe a decision in that context as discretionary, it has been accepted that the appellate review of such a decision involves an application of the standard of deference.28 Further support may be 24 Hall v State of New South Wales [2014] NSWCA 154 at [28]-[33] (Leeming JA, Meagher and McDougall JJA agreeing); applied in McKenzie v Wood [2015] NSWCA 142 at [21] (Ward JA, Leeming JA and Sackville AJA); see also Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [13] (Basten JA) (noting Priestley JA’s support for applying the standard of correctness to assessments of economic loss in Moran v McMahon [1985] 3 NSWLR 700 at 723). 25 White v Redding (2019) 99 NSWLR 605 at [61]-[77] (Gleeson JA), [80]-[101] (White JA), with Macfarlan JA dissenting at [19]-[26]; see also Chen v Kmart Australia Ltd [2023] NSWCA 96 at [12] (White JA). 26 Finniss v State of New South Wales [2023] NSWCA 292 at [85] (Payne JA, Stern JA and Basten AJA agreeing); Stanberg v State of New South Wales [2025] NSWCA 127 at [109]-[110] (Griffiths AJA, Mitchelmore and McHugh JJA agreeing). 27 White v Redding (2019) 99 NSWLR 605 at [61] (Gleeson JA), [87]-[88] (White JA). 28 Singer v Berghouse (No 2) (1994) 181 CLR 201 at 211 (Mason CJ, Deane and McHugh JJ); applied in Tiburzi v Butler [2017] SASCFC 89 at [87]-[89] (Doyle J, Vanstone and Parker JJ agreeing); White v -- 13 of 58 -- [2025] SASCA 120 S Doyle JA 10 found in the application of the standard of deference to decisions as to the apportionment of respective degrees of responsibility for an injury between a negligent defendant and a contributorily negligent plaintiff.29 Support may also be found in decisions treating the threshold requirement for an order for security for costs against a corporation30 as akin to a discretion, and hence subject to the principle of appellate restraint.31 42 I note that it has been suggested that, by reason of the intrinsically imprecise nature of the task of assessing damages in a personal injury case, nothing may turn on the applicable standard of appellate review in many, if not most, cases.32 I have difficulty accepting this suggestion. In cases where there is no discernible error of fact or principle, the circumstances in which it will be appropriate for an appellate court to interfere with an award of damages will be significantly affected by the appropriate standard.33 If the standard of correctness applies, the appellate court must intervene whenever it forms a different view as to the appropriate award; if the standard of deference applies, it may only do so if satisfied that the award was wholly erroneous, or outside the range of awards that might reasonably have been made. 43 It seems to me that the only way this suggestion could hold true is if one were to accept that, because of the uncertainty in assessing personal injury damages, the appellate court should, even when applying the standard of correctness, be slow to find error. However, this would be tantamount to introducing a third category of case, or third standard of appellate review, in which the appellate court exercises a degree of restraint, but not the principles of restraint in House v The King. This would be contrary to the recent High Court emphasis upon there being only two standards of appellate review, and consequential rejection of any intermediate category of case. 44 I consider that there are sound reasons to continue to apply the standard of deference to appellate challenges to awards of personal injury damages. In supporting this approach, I am mindful that the standard of correctness applies to many evaluative assessments in respect of which reasonable minds may differ. However, consistently with the views expressed by Gleeson and White JJA in White v Redding, it seems to me that the task of assessing damages in a personal Redding (2019) 99 NSWLR 605 at [72] (Gleeson JA), [87] (White JA); and Murray v Hill [2025] WASCA 77 at [50]-[51] (Buss P, Mitchell and Vaughan JJA). 29 Pennington v Norris (1956) 96 CLR 10 at 15-16 (Dixon CJ, Webb, Fullagar and Kitto JJ); Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493-494 (the Court); referred to in White v Redding (2019) 99 NSWLR 605 at [87] (White JA). 30 Namely, that it appears by credible testimony that there is reason to believe that the plaintiff corporation will be unable to pay the costs of the defendant if it is successful in its defence: Corporations Act 2001 (Cth), s 1335. 31 Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301 at [22]-[23] (Macfarlan JA, Ward JA and Tobias AJA agreeing); Mannix Electrical Pty Ltd v Belport Pty Ltd (2019) 134 SASR 438 at [35]-[37] (Doyle J). 32 Hall v State of New South Wales [2014] NSWCA 154 at [32] (Leeming JA, Meagher and McDougall JJA agreeing). 33 White v Redding (2019) 99 NSWLR 605 at [77] (Gleeson JA), [90] (White JA). -- 14 of 58 -- [2025] SASCA 120 S Doyle JA 11 injury claim involves a particularly significant measure of judgment. It depends to an unusual extent upon matters of opinion, estimation, impression and even speculation. It involves a choice between a range of outcomes rather than a choice between binary outcomes. In the circumstances, the nature of the task is such that it would be artificial for the law to demand a unique outcome. There also seems to be no good reason for the law to demand a unique outcome. The task is one which affects only private rights, and even then, only the quantification or valuation of those rights, rather than the determination of whether they exist. In my view, it is apt to describe the task of assessing damages in a personal injury case as involving the exercise of a discretion, or at least as involving a decision which is so closely akin or analogous to a discretion that it should attract the standard of deference when challenged on appeal. 45 In my view, it would be impractical and unrealistic to require an appellate court to undertake its own assessment of damages in every case when the award is challenged, with the court allowing the appeal and substituting its own assessment whenever that assessment differs from the trial judge’s assessment. This would not only tend to undermine the function of the trial judge, and substitute a form of second trial by appeal, but also tend to result in an undesirable increase in both the number of appeals and the burden upon the appellate court in dealing with each appeal. 46 One answer to this concern might be to approach the appellate review of personal injury damages awards on the basis that, by reason of the intrinsically imprecise nature of the task of assessing damages, the appellate court should, although applying the standard of correctness, nevertheless be slow to find error. However, as I have already explained, I do not think that authority permits this approach. There is no third standard of appellate review. 47 The better approach is to accept that the appellate review of personal injury damages awards is subject to the standard of deference. In my view, it does not matter whether this is because the assessment can be said to involve a discretion, or because the category of cases subject to this standard extends to decisions which are so closely akin or analogous to a discretion that they attract this standard. 48 In any event, in circumstances where the appellant in the present matter has not submitted that this Court should depart from the standard of deference, it is appropriate that I apply that standard. 49 As to the practical application of this standard, the approach may depend upon not only the particular head of damage, but also the way in which the judge approached the assessment, and the nature of the appellant’s challenge to the assessment. 50 Taking, for example, the appellant’s challenge to the trial judge’s award of $50,000 for loss of consortium in favour of Ms Lewis (Ground 5), the trial judge did not purport to apply any arithmetic approach to his assessment. His assessment -- 15 of 58 -- [2025] SASCA 120 S Doyle JA 12 was not supported by any calculations. After identifying the relevant considerations, his Honour simply announced the figure for this head of damages. This is, of course, not a criticism. Given the nature of the head of damages, and the balancing of non-quantifiable considerations which its assessment requires, that is how it ought to have been approached. The appellant has not suggested any error of fact or principle, or suggested that the judge erred in his identification of the relevant considerations. The challenge on appeal is addressed solely to the amount of the award. In these circumstances, it is clear that the challenge to this head of damages involves an orthodox application of the principles in House v The King. It will stand or fall on the appellant persuading this Court that the award was unreasonably high, in the sense that it was outside the range of assessments which might reasonably have been made for this head of damages. 51 However, the approach is more nuanced in relation to the appellant’s challenges to the awards for economic loss (Grounds 1, 2 and 3) and commercial services (Ground 4). 52 As explained in detail later in these reasons, in assessing these heads of damages, the judge did support his conclusions with some calculations. In the case of his assessment of past and future economic loss, the judge exposed calculations in support of his estimates of Mr Pastuch’s pre-accident earning capacity and residual earning capacity, being the key integers in assessing those heads of loss. In the case of his assessment of damages for future commercial care, the judge exposed a starting point which was predicated upon a calculation which assumed a certain number of hours per week, at an agreed rate, and using a standard multiplier for life. 53 At the same time, these calculations were only used to guide the judge’s assessment. They were not determinative of the ultimate assessment for those heads of damages insofar as the judge made reductions for contingencies (in the case of future economic loss) and more generally (in the case of commercial services). Further, and in any event, the fact that the assessments were supported by calculations reflecting particular assumptions is consistent with them nevertheless being estimates reflecting a range of broader considerations. As this Court explained in the context of the challenges to the trial judge’s award for economic loss in Battunga Country Lions Club v Paues:34 In some cases, the assessment ultimately made will quite appropriately appear simply as a number that reflects the outcome of the Judge’s synthesis of the relevant considerations, without the Judge exposing any particular calculation directly underpinning that figure. In other cases, the present being one, the Judge might expose a calculation or calculations that have been used in deriving the sum awarded. However, when that occurs, the appellate court should not lose sight of the fact that the calculation may be no more than a convenient way of expressing the Judge’s estimate of an appropriate award; that the Judge’s estimate may nevertheless have been informed by, and reflect, a range of considerations that are not explicitly reflected in that calculation; and that the focus should remain upon the 34 Battunga Country Lions Club v Paues [2021] SASCA 72 at [72] (Kelly P, Doyle and Bleby JJA). -- 16 of 58 -- [2025] SASCA 120 S Doyle JA 13 appropriateness of the sum ultimately awarded as an estimate of the future loss of earning capacity, and not the precise articulation of its derivation. 54 In the present case, the appellant’s challenges to the awards for economic loss and commercial services are focussed upon challenges to the factual premises of those awards. In particular, the appellant challenges the judge’s findings: (i) that Mr Pastuch would have increased his working hours had the accident not occurred, when determining his pre-accident earning capacity; (ii) that Mr Pastuch had only a nominal residual earning capacity by reason that his tow truck business was not profitable; and (iii) that Mr Pastuch was likely to obtain commercial services at the rate of more than two hours per week for the rest of his life. 55 In considering these challenges, it will be important to bear in mind the role of these findings in the judge’s assessments of the various heads of damage. Even if this Court were to accept that the judge took an erroneous view of the facts in some respect, it would not necessarily follow that his assessment of the relevant head of damages should be set aside. 56 Be that as it may, in a case where, as here, the factual challenges relate to the key integers of the calculations the judge used in arriving at his assessments, it may only be a short step from success in one or more of those challenges to a conclusion of error which warrants this Court’s intervention. Appellate restraint: the trial judge’s advantage 57 As to the second aspect of the requirement for appellate restraint, it is also well recognised that, when undertaking an independent assessment of the trial judge’s findings of fact, the appellate court must be conscious of any advantage that the trial judge may have had by reason of seeing and hearing the witnesses give their evidence in the context of the evidence as a whole. 58 The relevant principles were summarised by this Court in Pitt v Commissioner for Consumer Affairs:35 Further, in conducting its own review of the evidence and findings below, while not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate,36 the appellate court should nevertheless have regard to the findings of the trial judge, and any advantage he or she may have had in making those findings.37 This advantage will be relevant in the case of factual findings which are likely to have been affected by impressions about the credibility or reliability of witnesses formed by the trial judge as a result of having seen and heard them give their evidence, and of having had the opportunity to consider their evidence in the context of the evidence as a whole and of the 35 Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [116]-[118] (Doyle, Livesey and Bleby JJA). 36 Lee v Lee (2019) 266 CLR 129 at [56] (Bell, Gageler, Nettle and Edelman JJ); Warren v Coombes (1979) 142 CLR 531 at 551 (Gibbs ACJ, Jacobs and Murphy JJ). 37 Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ). -- 17 of 58 -- [2025] SASCA 120 S Doyle JA 14 trial as it unfolded, and hence having had regard to the “feeling” of the case.38 This advantage may extend to findings of secondary facts which are based on a combination of the trial judge’s impressions and other inferences from primary facts.39 Thus, when considering a challenge to a finding of fact based upon the trial judge’s impressions about the credibility or reliability of a witness, or a preference for the evidence of one witness over another on a particular topic, it is important to bear in mind the trial judge’s advantage. But, the appellate court may nevertheless intervene, and reach a different conclusion, where the finding is contrary to some incontrovertible fact, some other uncontested testimony or evidence, or is otherwise glaringly improbable or contrary to some compelling inference.40 59 The Western Australian Court of Appeal provided a similar summary in Tabloid Pty Ltd v Pringle:41 The principles that apply to appellate challenges to factual findings are well established. For present purposes it is enough to state that in relation to an appeal by way of rehearing: 1. An appeal court is bound to conduct a 'real review' of the evidence and the trial judge's reasons to determine whether the trial judge has erred in fact or law. 2. In its examination of the trial record an appeal court accords 'proper weight' to the views of the trial judge. 3. It is necessary for the appellant to demonstrate error. It is not enough to establish that an alternate finding was open or that 'a choice arises between conclusions equally open and finely balanced' - the appeal court must be satisfied that the trial judge's decision is wrong and that it should be corrected. Nor is it sufficient to contend that the trial judge should have accepted certain evidence - the appellant must demonstrate why the primary judge was in error in not accepting that evidence. 4. The nature and extent of the trial judge's advantage informs what is required in order to reach, and the extent of appellate restraint in reaching, a conclusion of error. 5. Where a trial judge's factual finding is likely to have been affected by impressions as to witness credibility having seen and heard the witnesses give evidence an appeal court will not interfere with the finding unless it is demonstrated to be wrong: (a) by reference to 'incontrovertible facts' or 'uncontested testimony'; (b) because the finding is 'glaringly improbable' or 'contrary to compelling inferences'; or 38 Fox v Percy (2003) 214 CLR 118 at [23] (Gleeson CJ, Gummow and Kirby JJ). 39 Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ); Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at [144] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ); Thorne v Kennedy (2017) 263 CLR 85 at [42] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ). 40 Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Fox v Percy (2003) 214 CLR 118 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ). 41 Tabloid v Pringle [2024] WASCA 152 at [99] (Vaughan JA, Vandongen JA and Tottle J) (omitting citations). -- 18 of 58 -- [2025] SASCA 120 S Doyle JA 15 (c) because the trial judge failed to use, or palpably misused, his or her advantage as a trial judge. 6. That is also the position where, having seen and heard the witnesses give evidence, the impugned factual finding is likely to have been affected by impressions as to witness reliability. 7. A trial judge's advantage is not confined to impressions as to credibility or reliability having seen and heard the witnesses give evidence. The nature of the finding, and the process of reasoning for the finding, is relevant to the appropriate degree of appellate restraint. For example, where a finding concerns a matter of impression or judgment, a trial judge's comparative advantage in coming to that evaluative determination should be given proper weight. Similarly, there should be appellate restraint before interfering with a trial judge's finding of secondary facts which is based on a combination of impressions from seeing and hearing the witnesses give their evidence and other inferences from primary facts (one example of such a situation being the evaluative judgment involved in issues of undue influence or unconscionability). 8. By contrast, in general an appeal court is in as good a position as the trial judge to decide on the proper inferences to be drawn from undisputed facts or primary facts that are established by the trial judge's findings. The appeal court will give respect and weight to the conclusion of the trial judge in deciding the proper inference to be drawn. But, if the appeal court reaches a different conclusion, it must give effect to that conclusion. 9. If an appeal court concludes that the trial judge has erred in fact the appeal court must make its own findings of fact and formulate its own reasoning based on those findings. 10. It is, however, inappropriate to treat an appeal as providing the opportunity for a new trial on the evidence adduced at trial constrained merely by the trial judge's unassailable factual findings. It is unacceptable to ask an appeal court to survey all the evidence and arrive at its own conclusions. An appellant must positively demonstrate error by showing that the trial judge's conclusions are wrong. 60 It is important to bear in mind that any advantage a trial judge has may inform not only the judge’s findings of primary facts, but also the judge’s intermediate and ultimate conclusions. As this Court said in the context of an allegation of unconscionable conduct in Pitt v Commissioner for Consumer Affairs:42 The conclusion that a person has engaged in unconscionable conduct (whether in equity, or in contravention of a species of statutory unconscionability) involves an evaluative judgment. Although it involves a judgment that is either right or wrong,43 and in that sense is not subject to the principles of appellate restraint that apply when reviewing the exercise of a discretion, it has been said that an appellate court should nevertheless observe caution in disturbing a trial judge’s finding of unconscionable conduct; the reason being that it represents a judicial conclusion as to “the application to a mass of evidence of a legal 42 Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [119] (Doyle, Livesey and Bleby JJA). 43 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 at [47] (Kiefel CJ and Bell J). -- 19 of 58 -- [2025] SASCA 120 S Doyle JA 16 standard expressed in broad statutory language”,44 and a judicial conclusion reached with the benefit of the trial judge’s advantage of seeing and hearing the parties and of “estimating their characters and capacities”.45 61 Whilst these observations were made in the context of a challenge to an evaluative decision subject to review according to the standard of correctness, the same need for restraint may arise when reviewing factual conclusions underpinning an assessment of damages which is subject to review according to the standard of deference. 62 It is appropriate to approach this appeal with the above principles and observations firmly in mind. Injuries suffered by Mr Pastuch 63 Immediately following the accident, Mr Pastuch felt severe pain from his right arm, but was also sore and in pain more generally. He was taken to Ceduna hospital and then transferred to the Royal Adelaide Hospital.46 64 Mr Pastuch had suffered multiple fractures in his right arm, a fractured clavicle, an injury to his coccyx, injuries to his back and neck, lacerations to his nose, and general bruising to his body. Whilst in the RAH, he had an operation on his arm, and a plate was inserted.47 He was discharged from hospital on 13 November 2016, a week after the accident.48 65 For several months after his discharge from hospital, Mr Pastuch spent most of his time lying on the lounge in his home, supporting his arm and watching television. He had some physiotherapy sessions in order to recover some movement back in his shoulder. But he became very stiff in his joints, and his body and back pain began to increase over time due to inactivity.49 His arm was in a sling for a couple of months. He was not able to drive for about seven or eight months, but was then able to drive an automatic vehicle using his left arm.50 66 After about nine or 10 months, Mr Pastuch was able to commence helping out with domestic chores, and went back to work for his employer at the time of the accident, HPS Transport.51 As explained below, he resumed work on limited 44 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at [82]-[83] (Kirby J); Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at [144] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ); Jams 2 Pty Ltd v Stubbings [2020] VSCA 200 at [127] (Beach, Kyrou and Hargrave JJA); Jonval Builders Pty Ltd v Commissioner for Fair Trading (2020) 383 ALR 334 at [73] (Leeming JA, Bathurst CJ and Meagher JA agreeing). 45 Thorne v Kennedy (2017) 263 CLR 85 at [42] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ). See also Australian Competition and Consumer Commission v Medibank Private Limited (2018) 267 FCR 544 at [236] (Beach J). 46 Reasons [79]-[81]. 47 Reasons [82]. 48 Reasons [87]. 49 Reasons [87]. 50 Reasons [88]-[89]. 51 Reasons [91]. -- 20 of 58 -- [2025] SASCA 120 S Doyle JA 17 or light duties. However, he experienced difficulties with his right arm, particularly when undertaking repetitive tasks. Further, when he attempted tasks involving driving he began to experience panic attacks and flashbacks to the accident.52 He was also experiencing difficulty sleeping, including because of recurrent dreams involving truck collisions.53 He found that he was constantly irritable with his family.54 67 Mr Pastuch’s shoulder injury deteriorated as he continued working. He had an operation on his shoulder in May 2018.55 His shoulder joints were scraped, and his bicep was dropped to allow for more movement. This was followed by further physiotherapy treatment. 68 After recovering from this second operation, Mr Pastuch resumed light duties with HPS Transport. However, he continued to experience difficulties both with the physical demands of the work, as well as psychiatric difficulties. These difficulties culminated in an outburst of frustration that led to the termination of his employment in March 2021. 69 Since that time, Mr Pastuch has undertaken some further work, as detailed below. But he has continued to experience physical and psychological difficulties in carrying out that work. 70 As for his injuries, the judge accepted the medical evidence to the effect that Mr Pastuch continues to suffer from both physical and psychological injuries as a result of the accident.56 71 As explained by Dr John Bastian, a consultant physician in rehabilitation and musculoskeletal medicine, Mr Pastuch’s physical injuries include a shoulder and elbow injury, which have left Mr Pastuch with permanent restrictions in his right arm. He cannot, for example, maintain a prolonged static right arm forward posture. He cannot use his right arm above shoulder height, or for forceful pushing or pulling. He cannot lift more than five kilograms away from his body. His elbow fracture and lower back pain is not as severe as his shoulder pain, but nevertheless impedes his ability to do repetitive bending, and lifting of more than 15 kilograms from a low level.57 72 As for his psychological injuries, the medical evidence from the psychiatrists, Dr James Hundertmark and Dr Jules Begg, was to the effect that Mr Pastuch suffers from a chronic post-traumatic stress disorder (PTSD) and a recurrent moderate severity major depressive disorder.58 The symptoms of the former include not only panic attacks, but also ruminations and a fear of driving on the open road. Both 52 Reasons [100], [105]-[106]. 53 Reasons [96]-[97]. 54 Reasons [98]. 55 Reasons [101]-[103]. 56 Reasons [199]. 57 Reasons [199]. 58 Reasons [193], [200]. -- 21 of 58 -- [2025] SASCA 120 S Doyle JA 18 conditions were described as permanent, and requiring treatment, with symptoms likely to continue into the future. The PTSD symptoms are likely to be triggered by issues reminding Mr Pastuch of the accident. The depressive symptoms are likely to recur and remit over time. 73 There was further medical evidence, particularly by way of elaboration upon the implications of these injuries for Mr Pastuch’s residual capacity for work, and his need for assistance in his daily living activities, from not only Dr Bastian, Dr Hundertmark and Dr Begg, but also from Christopher McFarlane (physiotherapist), Dr James Economos (occupational physician), Olivio Varricchio (physiotherapist) and Ross Tippett (physiotherapist). 74 In relation to Dr Bastian,59 the judge accepted his evidence that Mr Pastuch was virtually unemployable, even though he was working part time (as a tow truck driver), given his shoulder, back and psychiatric problems. He would be hard pushed to find meaningful work where he could work part time doing light duties (for example, in a factory setting or as a forklift driver). His very depressed, flat and emotionally labile presentation would be apparent to any potential employer. His only realistic option was to work for himself. 75 Dr Begg’s evidence60 was that Mr Pastuch could only work for about two days per week, and that this was unlikely to improve. He would also need flexibility in terms of the timing of his work and, like many truck drivers, would find it hard to move across into another field of occupation. 76 Dr Hundertmark also gave evidence to the effect that Mr Pastuch was unable to continue working as a semi-trailer or larger truck driver.61 77 The judge said that he was also impressed by the evidence of Mr McFarlane and Dr Economos. Mr McFarlane’s evidence62 was consistent with the evidence already mentioned, namely that he was no longer able to work as a full-time truck driver. His injuries meant he was only capable of less demanding work, and with special arrangements or a sympathetic employer. Mr Economos’ evidence63 was to similar effect, namely that Mr Pastuch was not able to return to his pre-accident employment, and that a properly informed employer would be unlikely to offer him employment. Findings relevant to economic loss 78 In summarising the evidence and findings relevant to Mr Pastuch’s claim for economic loss, it is convenient to address separately the periods before and after the accident. 59 Reasons [212]. 60 Reasons [230]. 61 Reasons [193]. 62 Reasons [273]-[274]. 63 Reasons [287]. -- 22 of 58 -- [2025] SASCA 120 S Doyle JA 19 Before the accident 79 Mr Pastuch was born on 22 December 1973, and has lived in South Australia all his life. He received his primary and secondary education in Adelaide, leaving school in Year 11 in order to take up employment.64 80 His first job involved labouring work in a furniture store. This was followed by an apprenticeship in carpentry. He commenced making deliveries in a truck, and found that he enjoyed truck driving more than labouring or working in a factory.65 Driving complemented his interest in motorsport and motor vehicles more generally.66 81 In April 2000, Mr Pastuch had a son, Brandon, from a previous relationship.67 82 At around the same time, Mr Pastuch commenced working as a full-time truck driver. He initially worked for North East Removals, which involved travelling interstate between Adelaide and Brisbane with a four-to-five-day turnaround for each trip, and a couple of days break in Adelaide between trips. The work included loading and unloading at both ends. He continued in this role until about 2003.68 83 In 2004, Mr Pastuch commenced driving general freight for Lang Transport, with trips from Adelaide to both Perth and Melbourne. His duties were generally confined to driving, with the only physical work being the chains, straps and tarpaulin work associated with securing the loads he was driving. He continued in this role until 2006.69 84 By this time, Mr Pastuch had met Ms Lewis. They ended up marrying in 2015. When they met, she was living in Melbourne. They maintained a long distance relationship, spending time together when he was in Melbourne.70 85 In April 2005, Mr Pastuch and Ms Lewis purchased a house in Burton. Ms Lewis moved to Adelaide, initially living with Mr Pastuch’s family. However, she and Mr Pastuch soon moved into their house in Burton, which was a three- bedroom home with an outdoor entertaining area, pool and spa. They regularly entertained friends and family. Brandon lived with them on alternate weekends, with Ms Lewis looking after him when Mr Pastuch was working.71 64 Reasons [36]. 65 Reasons [37]. 66 Reasons [38]-[40]. 67 Reasons [41]. 68 Reasons [42]. 69 Reasons [43]. 70 Reasons [45]. 71 Reasons [45]-[46]. -- 23 of 58 -- [2025] SASCA 120 S Doyle JA 20 86 From 2006 to 2008, Mr Pastuch was employed by Wakefield Transport. This involved interstate freight work, but also some local deliveries for Inghams Chickens.72 87 In 2008, Mr Pastuch’s brother was killed in a motorcycle accident. This affected Mr Pastuch deeply, and he took time out of work to help with his brother’s children and property. He returned to work in 2009, driving for Edgar’s Transport until 2010. This involved driving road trains from Adelaide to Roxby Downs and Melbourne.73 88 Mr Pastuch then suffered further personal tragedies, with his father dying in 2009, and another brother dying in 2010. Again, Mr Pastuch was deeply affected.74 89 In 2011, Ms Lewis gave birth to their daughter, Jayda. Unfortunately, Ms Lewis suffered post-natal depression, which led to Mr Pastuch reducing his working hours so as to assist in looking after Jayda, and to spend more time with Ms Lewis and Jayda.75 90 Mr Pastuch continued to change employers from time to time for better pay and conditions. He preferred the longer driving, which led to him being employed by Old Number 7 from around 2011, driving general freight from Adelaide to Sydney and Melbourne. In 2015 he also did some work for AR Transport, which involved refrigerated van runs from Adelaide to Sydney and Melbourne.76 91 Later in 2015, Mr Pastuch commenced employment with HPS Transport as an interstate driver doing refrigeration work. The loading was done by forklift and so he was not involved in any of the physical loading work.77 He was driving for HPS Transport at the time of his accident on 6 November 2016. 92 During 2015, Mr Pastuch and Ms Lewis had commenced a limousine business. This involved Mr Pastuch driving to weddings, school formals, graduations and other special occasions, as well as cleaning the vehicles. Ms Lewis looked after the administration side of the business. They had intended to develop this business and bring it to profitability so that Mr Pastuch could reduce his long haul driving, and spend more time with his family. However, it was not initially profitable and led to Mr Pastuch working even longer hours because it was necessary for him to continue driving road trains.78 72 Reasons [44]. 73 Reasons [47]. 74 Reasons [48]. 75 Reasons [49]-[51]. 76 Reasons [51]. 77 Reasons [52]. 78 Reasons [53]. -- 24 of 58 -- [2025] SASCA 120 S Doyle JA 21 93 In the end, they sold the limousine business, with the proceeds used to assist in purchasing a property in Freeling in early 2016.79 94 The property in Freeling was 1800 sqm in size, and was intended to give them more room to allow for Mr Pastuch’s interest in motor vehicles, and Ms Lewis’ interest in rescuing animals. It had a vegetable garden, and a pool and allowed for activities (such as motor bike riding) for what they intended would be a growing family. They planned building work on the property, with a view to creating an entertainment area like they had enjoyed at their Burton home. The building work started in late 2015 and finished around the time of Mr Pastuch’s accident. They moved into the Freeling house after the accident, in December 2016. They planned to keep the Burton property as an investment property.80 After the accident 95 As I have already mentioned, Mr Pastuch did not undertake any work for a period of nine or 10 months after his accident on 6 November 2016. 96 He returned to work at HPS Transport in the second half of 2017, initially working only a few hours a day for a couple of days a week. He was involved in a ‘get back to work’ scheme which involved him increasing his working hours and days as he felt better able to cope.81 97 Mr Pastuch was initially placed on light duties, with his tasks including organising spare parts, driving a utility to collect spare parts, making local deliveries, using the forklift and occasionally picking up trucks and prime movers. By 2018 and 2019, he was working significant hours without any time off for his physical problems.82 98 At the same time, and as mentioned earlier in these reasons, Mr Pastuch struggled occasionally with his return to work, both physically and psychologically. His difficulties increased when he was pushed by management to undertake harder work, including more significant driving. He struggled with the physical demands of this work, and experienced panic attacks and flashbacks while driving. 99 Mr Pastuch’s employment with HPS Transport was terminated in March 2021. This followed him expressing his frustration after being unable to complete a job which involved him driving a semi-trailer up the freeway to Lenswood, and picking up a load which was beyond his physical capacity.83 79 Reasons [54]. 80 Reasons [54], [292]. 81 Reasons [99]. 82 Reasons [132]. 83 Reasons [102], [104]-[111]. -- 25 of 58 -- [2025] SASCA 120 S Doyle JA 22 100 After being terminated, Mr Pastuch was unemployed for about a year. He tried, but was not able to obtain suitable employment.84 He did not consider that he was capable of continuing to drive semi-trailers or road trains.85 101 In the meantime, Mr Pastuch and Ms Lewis had become aware of an opportunity to purchase a tow truck from friend. They used some money Ms Lewis had inherited to purchase it, and commenced operating a tow truck business as a partnership. Mr Pastuch did the driving, with Ms Lewis doing the administrative work associated with the business. The tow truck driving suited Mr Pastuch, because he could choose the hours and the jobs he wanted to work, including confining himself to break-downs rather than accidents. When he was feeling sore on a particular day, he could find another driver to do the jobs that came in, or simply not take the jobs.86 102 The tow truck had an automated hydraulic lifting mechanism which he could operate with his left arm (using an air lever). That said, he continued to experience some panic attacks while driving, and there were times when his right arm and shoulder injuries made it difficult for him to turn the truck. If he was forced to turn quickly, this would result in sharp pain and leave him in pain for the next day. As a result of these difficulties Mr Pastuch was considering (at the time of trial) employing another person to take over the driving.87 Primary judge’s approach to economic loss 103 In assessing Mr Pastuch’s economic loss, the judge was assisted by three reports and some oral evidence from a forensic accountant, Julia Bossert. Ms Bossert addressed two scenarios. Both scenarios assumed that, had the accident not occurred, Mr Pastuch would have continued working as a truck driver until retiring at 67 years of age. 104 Under Scenario 1,88 Ms Bossert assumed that throughout the period from the accident until age 67, Mr Pastuch would have earned the average weekly earnings for truck drivers. Based upon the Jobs Market Australia report for 2021-2022, she calculated this to equate to $84,674 per annum before tax, which she rounded down to $80,000 per annum. 105 Under Scenario 2,89 Ms Bossert assumed that throughout the period from the accident until age 67, Mr Pastuch would have earned the average earnings of an interstate truck driver driving road trains for 66 hours (or five and a half days) per week under the relevant industry award (being the Road Transport (Long Distance Operations) Award). The assumption of five and a half days driving a week was based upon an instruction that had the accident not intervened, Mr Pastuch would 84 Reasons [111]. 85 Reasons [115]. 86 Reasons [112]-[113]. 87 Reasons [115]-[116]. 88 Reasons [236]-[237]. 89 Reasons [236], [238]. -- 26 of 58 -- [2025] SASCA 120 S Doyle JA 23 have resumed driving one and a half interstate trips to Perth per week, equating to five and a half days on the road each week.90 106 Under both scenarios, Ms Bossert made reductions for the income earned by Mr Pastuch after the accident, whilst working as a truck driver for various companies. This did not include any amount after 12 March 2021, being the date of Mr Pastuch’s termination by HPS transport. It did not include any amount for the tow truck business. 107 After making various adjustments, to reflect matters raised by the parties and the passage of time, Ms Bossert presented her final calculations in an updated report (Exhibit A10): 108 By way of further explanation, these figures represented an assessment as at 30 June 2023. The figures for past economic loss were net of income tax, but before statutory interest. The figures for future economic loss were net of income tax, and used a discount rate of 5 per cent to reflect present value as at 30 June 2023. 109 The figures were intended to represent the maximum economic loss suffered by Mr Pastuch. As Ms Bossert acknowledged, if he retained a commercially exploitable capacity, then the sum awarded would need to be reduced accordingly.91 The figures made no allowance for contingencies or vicissitudes of life. 110 As the judge explained, neither party sought to adduce further evidence from Ms Bossert, or to cross-examine her on the figures in Exhibit A10. The judge found her to be an impressive witness who gave her evidence competently and objectively, adding that her evidence was not seriously challenged.92 90 Reasons [289]. 91 Reasons [240]. 92 Reasons [254]. -- 27 of 58 -- [2025] SASCA 120 S Doyle JA 24 111 In assessing Mr Pastuch’s economic loss, the judge commenced the operative section of his reasons by referring to Ms Bossert’s calculations for Scenario 1 (average full-time earnings as a truck driver) and Scenario 2 (award rate for interstate truck driver driving 66 hours per week). He noted that Scenario 2 was based upon an assumption or instruction that Mr Pastuch planned to resume, and would have resumed, driving trucks for five and a half days per week had the accident not occurred. 112 The judge explained that the parties did not make any ‘particular submissions’ addressed to any other scenario or basis for assessing Mr Pastuch’s economic loss; that he was ‘left generally with the information’ in Scenarios 1 and 2. The judge ultimately preferred Scenario 2, concluding that the evidence supported a finding that Mr Pastuch would have returned to driving trucks interstate five and a half days per week had the accident not occurred. 113 In reasoning to this conclusion, the judge commenced by referring to his earlier summary of the evidence. He referred in particular to the evidence in relation to Mr Pastuch reducing his work following his personal tragedies, the birth of Jayda, and Ms Lewis’ post-natal depression. Whilst Mr Pastuch continued to work as a truck driver (including commencing work with HPS Transport in 2015), the judge also mentioned the decisions of Mr Pastuch and Ms Lewis to embark upon a limousine business, to then sell that business because it was not sufficiently profitable, and to purchase and build on their property at Freeling.93 114 In then progressing to a finding that Mr Pastuch intended to resume driving for five and a half days per week, the judge said as follows: [293] Other changes were occurring. Mr Pastuch’s daughter Jayda was nearing high school age and Ms Lewis was not employed. It was necessary for further capital derived from a higher level of income to be generated in order to develop the property at Freeling. This in turn required Mr Pastuch to earn a higher income in his occupation as an interstate truck driver. In order to do so, it was necessary for him to take on further work. [294] I accept the evidence of Mr Pastuch that at the time of the collision he intended to do more work and the equivalent of at least a 5 ½ day week on the road in the background of these objectively verifiable facts. This role and this increased workload was always subject to the continuation of the time per week that Mr Pastuch could drive. As I have earlier explained, Mr Pastuch was able to work a 5.5 day week and stay within the limitations of the hours available for driving work. [295] In his submissions, Mr Tilley for the respondent challenged the contentions of the applicant that, on any view of the facts it could be accepted that Mr Pastuch intended to work for 5 ½ days on the road as per the instructions of the solicitors to Ms Bossert. However, I am satisfied that, objectively assessed, it is more likely than not that this was the case because it was necessary for Mr Pastuch to increase his work load to at least 5 ½ days on the road in order to sustain the plans being made by he and Ms Lewis in relation to their family, their plans for the development of the Freeling property, their plans for the use of that property and for the ongoing expenses 93 Reasons [290]-[292]. -- 28 of 58 -- [2025] SASCA 120 S Doyle JA 25 reasonably to be incurred in the undertaking of those plans. I am therefore satisfied that the appropriate approach to the calculation of loss is to adopt Scenario 2 calculated by Ms Bossert in each of her reports. Notwithstanding I consider also that it is appropriate to make a greater allowance for the contingencies of life. This is because it could not necessarily be assumed that Mr Pastuch would have continually worked at that rate. Allowances must also be made for the exigencies of life such as health issues and other possible but unforeseen developments. 115 The judge had previously foreshadowed findings to this effect in similar terms: [119] Before the accident Mr Pastuch’s plan was that as his daughter got older, he would increase the amount of interstate driving work that he would perform.94 I accept this evidence. The plan was to increase his workload to do ‘…one and a halves to Perth’.95 The plan meant he would be away from home for five and a half to six days per week and have only one day off work. This would increase his earnings.96 [120] This was necessary for a number of reasons. The limousine business was not sufficiently profitable and was sold to fund in part the purchase of the Freeling land. It was necessary to build a house on this land, and then improve the surrounds by landscaping. Ms Samantha Lewis was no longer employed and had taken up her interest in animal rescue at their cost. Their daughter was nearing the age of puberty and as parents they needed to satisfy the extra cost pressures that this entails. I am satisfied that it became necessary for Mr Pastuch to take on extra driving duties; that was his intention. I find that on balance, but for the collision, this is the way he would have worked until retirement. 116 As can be seen, whilst adopting Scenario 2 as the basis for his assessment of Mr Pastuch’s pre-accident earning capacity, the judge acknowledged that it would be appropriate to make a ‘greater’ allowance for the contingencies of life. 117 The judge returned to his assessment of Mr Pastuch’s pre-accident earning capacity later in his reasons, restating his decision to adopt Scenario 2: [318] I am satisfied that but for the injury, Mr Pastuch would have continued to be employed as an interstate truck driver and, I am satisfied on the balance of probabilities, that in that role, he would have sought extra work sufficient for him to be working 5.5 days per week, at a time not more than six months after the date of the collision. This was necessary in order to allow he, his wife and family to achieve the financial stability that they sought and upon which they had planned their futures. I am satisfied of these matters on the evidence that I have earlier canvassed. [319] Therefore, I am satisfied that the appropriate assessment for past economic loss is as described under scenario 2 based upon the calculation set out in the basis of the report exhibit A10. 118 His Honour also said: [325] … immediately prior to the collision, Mr Pastuch was increasing the number of hours that he was working and he, his wife and his daughter had reached a critical point 94 T99. 95 T99.7. 96 T99.9. -- 29 of 58 -- [2025] SASCA 120 S Doyle JA 26 where they were moving to a larger home on a larger block of land while maintaining the Burton house as an investment. They were building their capital base for their ongoing lives. Ms Lewis was pursuing her interests in animal welfare, their daughter needed to be educated and they were living in a remote community. I am satisfied that not only was it necessary for Mr Pastuch to work increased hours in order to satisfy these requirements, I am also satisfied to a very high level of satisfaction, that Mr Pastuch would have sought and obtained further work, increased hours and a higher salary in order to provide for his family in accordance with their plans. 119 The judge next addressed the issue of Mr Pastuch’s residual earning capacity. Commencing with the termination of his employment by HPS Transport, the judge accepted that it had not been possible for Mr Pastuch to fulfill the requirements and demands placed upon him by HPS Transport. He accepted the medical evidence to the effect that Mr Pastuch was neither physically nor mentally capable of returning to his pre-accident employment as a truck driver.97 120 The judge referred back to the findings he had made in relation to the medical evidence about Mr Pastuch’s residual capacity, as summarised above. These earlier findings included the following in relation to Mr Pastuch’s attempts to operate a tow truck driving business: [306] I am satisfied on the evidence that Mr Pastuch’s condition has not changed sufficiently where, without difficulty, he may drive other vehicles such as his tow truck. This disability is also associated with the ongoing physical disabilities which are suffered by Mr Pastuch particularly in his right arm and shoulder which have limited movement and operation. I have accepted the view expressed by Dr Bastian that all of these limitations including the exacerbation of a pre-existing back injury, have been caused by this collision. I am in a position to make that finding even though I accept that Mr Pastuch has made significant efforts to become self employed as a tow truck driver. I also accept that these efforts have not been successful because of his inability to perform work as required to run a successful operation. That endeavour has not been profitable. He is in the process of training another driver to take over the work that he otherwise performed. This will, at least in short term, reduce the profitability of that business even further. There is no evidence that the business is now sufficiently profitable to employ another person on any basis and to derive a profit for Mr Pastuch and Samantha Lewis. I am satisfied that the reaction of Mr Pastuch to the events that have occurred, and his inability to be restored to the position he was in prior to the accident, are the very risk of the sequelae of the injuries sustained by him occurring in the ordinary course of things, as a matter of common sense and experience. 121 The judge accepted that driving a tow truck could not be equated to the work involved in driving a truck, and noted Dr Begg’s opinion that Mr Pastuch might be able to drive for two days a week, with appropriate flexibility to take rests or to decline work when he was not physically or mentally capable of completing it.98 122 However, focussing upon Mr Pastuch’s tow truck driving business, the judge did not think it was a profitable business, and was not satisfied that it would be 97 Reasons [320]-[321]. 98 Reasons [322]. -- 30 of 58 -- [2025] SASCA 120 S Doyle JA 27 appropriate or sustainable for Mr Pastuch to employ another driver. His Honour explained: [323] I have had regard to the financial statements of the tow truck business. It is not a profitable business. Currently it is no more than a means to occupy Mr Pastuch. I am unable to accept that the level of profitability will change in the foreseeable future, or would have changed in the past if, for example, another driver was employed. The employment of another driver would require the payment of a salary according to the award; the payment of on costs associated with his salary such as superannuation; the making of provision for entitlements under the award such as sick leave; long service leave and the like; and then an assessment would need to be made of the level of work required to ensure profitability. Although there is no specific evidence before me on some of these topics, I am satisfied that when an overall assessment is made, it is not an appropriate or sustainable proposition to assert that Mr Pastuch should employ another driver to conduct his business and so an allowance be made for some greater amount of notional profit. That difficulty would be compounded if he was required to employ another driver when, for example, he could not do the work that was available to him. This would be a replacement on a piece-meal basis and would worsen the profitability problem as I have outlined above. 123 The judge also accepted the evidence of Dr Bastian to the effect that Mr Pastuch does not have the skills to undertake any other type of work, and would not, in any event, pass any form of pre-employment medical assessment: [324] I have also accepted the evidence of Dr Bastian which was not challenged either by Dr Economos or by the work site assessment of the physiotherapist Mr McFarlane that Mr Pastuch does not have the skill to do any other type of work; that he is in a position where if he is unable to drive a truck on a fulltime basis, he does not have the skills set, the experience or the ability to do other work. Another feature which compounds this difficulty is, as expressed by Dr Bastian, Dr Economos and consistent with the assessment made by Mr McFarlane, Mr Pastuch could not pass any form of medical preparatory to commencing employment. He would not obtain employment. 124 The judge added that Mr Pastuch’s ability to obtain employment would not be assisted by his very flat countenance and general appearance, as a consequence of his physical and psychological injuries.99 125 The judge concluded his assessment of past economic loss by reiterating his decision to accept the assessment reflected by Scenario 2 in Ms Bossert’s calculations in Exhibit A10.100 As set out in the table extracted from that report earlier in these reasons, this involved figures for past economic loss ($395,423), past loss of superannuation ($43,394), and a Fox v Wood allowance ($28,594), giving a sub-total of $467,411. 126 From this total, the judge considered it appropriate to deduct $25,000 as an estimate of earnings from the tow truck business up to 30 June 2023: 99 Reasons [325]. 100 Reasons [326]. -- 31 of 58 -- [2025] SASCA 120 S Doyle JA 28 [327] It is necessary for me to reduce that assessment by the anticipated earnings for the tow truck business to 30 June 2023. In light of the evidence before me, I would allow $25,000 for those anticipated earnings. This is because Mr Pastuch gave evidence that he was in the process of bringing on a driver to take the work that he could not take. I think that some further assessment needs to be made of profitability which, in my opinion, is properly assessed at $25,000. That is using a broad axe approach which I must in these circumstances. This takes account of the early payment and accounting for the embedded costs which have been paid and which would not again be included as capital costs. Earlier in these reasons, I explain that if those ‘Sunk’ capital costs were ignored, the profit of the business would have been in the order of $8,000 per annum for a business then in its infancy. 127 Reducing his sub-total for past economic loss of $467,411 for the $25,000 in income earned through the tow truck business, gave a reduced total of $442,411. As the judge explained, s 56A(5) of the CLA, which requires a discount of 20 per cent on any damages awarded for a loss or impairment of earning capacity, required that this be further reduced to $353,928. This was the figure his Honour ultimately awarded by way of damages for past economic loss.101 128 In next addressing Mr Pastuch’s claim for damages for future economic loss, the judge commenced by acknowledging that it was appropriate to make some allowance for the contingency that, even without the accident, Mr Pastuch might have experienced difficulties in his work by reason of his difficulties in controlling his weight. Mr Pastuch is not a tall man, and his weight had ballooned to around 130-150 kg prior to the accident.102 129 In then addressing Mr Pastuch’s residual earning capacity, the judge returned to his tow truck business. The judge reiterated his earlier findings to the effect that Mr Pastuch had made a genuine effort to make his tow truck business work, but that ‘the practical application of those good intentions created problems that he found insurmountable’. As time progressed, Mr Pastuch had become ‘incapable of fully commercialising his business’, and the employment of a substitute driver was not a solution.103 In explaining this conclusion, the judge acknowledged Dr Begg’s opinion that the tow truck business suited Mr Pastuch because it was something he could do in his own time and on his own terms. However, the judge also took into account the medical evidence to the effect that Mr Pastuch’s shoulder injury and PTSD made driving difficult for him.104 130 Referring to s 56A of the CLA, the judge said that there was a more than 75 per cent probability that Mr Pastuch’s tow truck business would remain at a ‘very low level’ as a result of the difficulties mentioned; that the business ‘will remain at the current level, and therefore such a level of activity will reflect its profitability’; and that it ‘will not reach a commercial level of the exploitation of 101 Reasons [327]-[328]. 102 Reasons [330]. There was evidence to the effect that he was 176 cm in height and that, by 2021, his weight had reached 180 kg. However, after undergoing gastric banding surgery, his weight was down to about 120 kg by the time of trial (T224-225; EAB 823). 103 Reasons [337]. 104 Reasons [338]-[339]. -- 32 of 58 -- [2025] SASCA 120 S Doyle JA 29 the resource’.105 The judge also referred to what he described as the evidence of Ms Bossert to the effect that currently, the tow truck business was barely profitable.106 131 I interpolate that the reference to s 56A was presumably a reference to subsection (4) of that section. That sub-section provides, inter alia, that in assessing damages for a loss of future earning capacity as a result of personal injury arising from a motor vehicle accident, and putting to one side any discount for the usual vicissitudes of life, the court: must not take into account any inference as to a circumstance which the court is unable to evaluate the chance of it occurring, or which the court evaluates as having a less than 20 per cent chance of occurring (s 56A(4)(a)); and must state the circumstances which have been taken into account, the inferences drawn from those circumstances, and the court’s evaluation of the chance of those circumstances occurring (s 56A(4)(c)). 132 Having addressed Mr Pastuch’s tow truck business in this way, the judge then referred to his earlier findings and discussion about Mr Pastuch’s inability to earn any other form of income. After referring in particular to the evidence of Dr Bastian and Dr Begg, the judge concluded that Mr Pastuch has essentially no residual earning capacity: [345] He is also in a position where he has no capacity for manual work and he does not have the intellectual capacity for more complex work, different from the roles he has always performed. He has no capacity to be retrained into a higher level position for such work. [346] Dr Bastian said and I accept that he is unemployable. Dr Economos did not strongly disagree with that view. These views inform my approach to the provision that should be made in reduction of my damages assessment for future losses. Mr Pastuch is unemployable, his business is at best marginal and he plans to burden that business further by seeking to employ another driver to do the work he would otherwise have done. Such a decision is problematic for the reasons I earlier explained and the future of the business is therefore fraught. 133 In the circumstances, the judge considered it appropriate to make a reduction for residual earning capacity of $60,000: [347] Taking all of these matters into account, I am satisfied that the appropriate deduction for future earnings of Mr Pastuch is $60,000. In making this calculation, I have taken account of his age, his skills, his experience, his physical capacity and his intellectual capacity. In the end, as Dr Bastian said, the horrors of these events and their sequelae have rendered him unemployable. 134 In then arriving at an assessment of damages for future economic loss, the judge commenced with Ms Bossert’s Exhibit A10 figures from Scenario 2 for future economic loss ($1,116,051) and future loss of superannuation ($160,691), giving a sub-total of $1,276,742. He reduced this by 25 per cent for contingencies, 105 Reasons [341]. 106 Reasons [344]. -- 33 of 58 -- [2025] SASCA 120 S Doyle JA 30 leaving a sum of $957,556. He then reduced this by $60,000 for Mr Pastuch’s residual earning capacity, leaving $897,556. Finally, he reduced this by the 20 per cent required under s 56A(5) of the CLA, giving an award for future economic loss of $718,045. This was the figure his Honour ultimately awarded by way of damages for future economic loss.107 135 For completeness, I mention two further matters in relation to the judge’s assessment of future economic loss. In making a reduction of 25 per cent for contingencies, the judge said that he had applied a percentage that was higher than the usual 15 per cent on account of his earlier observations about Mr Pastuch’s ‘weight and maladies and reasons that he would not maintain the requirements of long-distance driving until the age of retirement of 67.’108 Further, in using a retirement age of 67, the judge said that he had rejected Mr Pastuch’s submission in support of a retirement age of 70. He explained that he was ‘mindful of the stressors associated with long distance truck driving and other aspects of the health of Mr Pastuch’, and that he was ‘unable to find on the balance of probabilities that Mr Pastuch would have proceeded to work past 67 years, the notional date for retirement’.109 Principles governing the assessment of economic loss 136 The principles governing damages for the loss of earning capacity as a result of personal injury are not in dispute. They are as summarised by this Court in Battunga Country Lions Club v Paues.110 It is convenient and sufficient for present purposes to reproduce the relevant passage from the Court’s reasons in that matter:111 Focussing upon damages for the loss of earning capacity, damages may be awarded to reflect the economic loss suffered by a plaintiff when his or her injuries interfere with his or her ability to earn income. While the award for economic loss is often divided for convenience into past and future loss of earning capacity, these are in reality just two components of the one head of loss. Both turn upon a consideration of whether the plaintiff has suffered a diminution of earning capacity that is productive of financial loss.112 As the plurality explained in Husher v Husher:113 … A person who is physically injured by the negligence of another may suffer damage in a number of ways. As has long been established, the damages to be awarded to the victim are “that sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”.114 If the victim’s pursuit of gainful employment is interrupted or 107 Reasons [348]. 108 Reasons [348]. 109 Reasons [348]. 110 Battunga Country Lions Club v Paues [2021] SASCA 72; see also Tabloid v Pringle [2024] WASCA 152 at [51]-[56] (Vaughan JA, Vandongen JA and Tottle J). 111 Battunga Country Lions Club v Paues [2021] SASCA 72 at [37]-[43] (Kelly P, Doyle and Bleby JJA). 112 Graham v Baker (1961) 106 CLR 340 at 346-347 (Dixon CJ, Kitto and Taylor JJ). 113 Husher v Husher (1999) 197 CLR 138 at [6]-[7] (Gleeson CJ, Gummow, Kirby and Hayne JJ). 114 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39, per Lord Blackburn. -- 34 of 58 -- [2025] SASCA 120 S Doyle JA 31 affected because of the negligent infliction of physical injury, the victim is to be compensated by an amount that reflects the financial consequences that follow from the impairment. Since at least Graham v Barker115 it has been recognised that it is convenient to assess an injured plaintiff’s economic loss “by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff’s proved condition at the time of trial, to attempt some assessment of his future loss”.116 But damages for both past loss and future loss are allowed to an injured plaintiff “because the diminution of his earning capacity is or may be productive of financial loss”.117 Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained. As emphasised in the above passage, in order to recover damages for economic loss, whether past or future, the plaintiff must establish both that he or she has suffered a diminution in earning capacity, and that this is or may be productive of financial loss.118 This second limb requires a comparison between what the plaintiff is likely to have earned if he or she had not suffered the injury, and what he or she is likely to earn in his or her injured condition.119 The burden lies on the plaintiff to prove the injury and loss for which he or she seeks damages.120 At the same time, when determining and assessing the loss that has been suffered, the process does not usually permit of precise mathematical calculations. It will usually be one of judgment and estimation, rather than exactness. The Court must do the best it can to arrive at the estimate most likely to provide fair and reasonable compensation. In Todorovic v Waller,121 Gibbs CJ and Wilson J described the task in the following terms:122 Although the aim of the court in awarding damages is to make good to the plaintiff, so far as money can do, the loss which he has suffered, it is obvious that it is impossible to assess damages for pain and suffering and loss of amenities of life by any process of arithmetical calculation. It may be less obvious, but is no less certain, that the assessment of damages for future pecuniary loss resulting from personal injuries can never be a mere matter of mathematics. It is true that as the assessment of damages has become more sophisticated, calculations are made in an attempt to achieve greater precision. Such calculations may sometimes give a false appearance of accuracy. Some of the figures on which they are based are the result of estimate or speculation. In the case of loss of earning capacity it is necessary to compare what 115 Graham v Baker (1961) 106 CLR 340. 116 Graham v Baker (1961) 106 CLR 340 at 346-347, per Dixon CJ, Kitto and Taylor JJ. 117 Graham v Baker (1961) 106 CLR 340 at 347, per Dixon CJ, Kitto and Taylor JJ. See also Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 658, per Barwick CJ; Atiyah, “Loss of Earnings or Earnings Capacity?” Australian Law Journal, vol 45 (1971) 228. 118 See also Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3 (Deane, Dawson, Toohey and Gaudron JJ); CSR Ltd v Eddy (2005) 226 CLR 1 at [30] (Gleeson CJ, Gummow and Heydon JJ); Amaca Pty Ltd v Latz (2018) 264 CLR 505 at [90] (Bell, Gageler, Nettle, Gordon and Edelman JJ). 119 Todorovic v Waller (1981) 150 CLR 402 at 412 (Gibbs CJ and Wilson J). 120 Todorovic v Waller (1981) 150 CLR 402 at 412 (Gibbs CJ and Wilson J). 121 Todorovic v Waller (1981) 150 CLR 402. 122 Todorovic v Waller (1981) 150 CLR 402 at 412-413 (Gibbs CJ and Wilson J) (omitting citations); see also Amaca Pty Ltd v Latz (2018) 264 CLR 505 at [92] (Bell, Gageler, Nettle, Gordon and Edelman JJ). -- 35 of 58 -- [2025] SASCA 120 S Doyle JA 32 the plaintiff might have earned if he had not suffered the injury with what he is likely to earn in his injured condition. In many cases this means that the court has to engage in “a double exercise in the art of prophesying”… Of course in some cases of serious injury it will be possible to say that the plaintiff is probably capable of earning nothing in the future. However, in no case can there be any solid basis on which to determine what the plaintiff would have earned if he had not received the injuries in respect of which he sues. Actuarial tables will show the average number of years which will be lived after a certain age by those alive at that age, but will not show that it is probable that the plaintiff, even if in good health, would have conformed to the average. No evidence can possibly indicate whether the plaintiff, had he not been injured, would have remained in good health, and continued to be employed at any particular rate of earnings. For these reasons, damages for financial loss likely to result from personal injury “can only be an estimate, often a very rough estimate, of the present value of his prospective loss”… Ultimately the process must always be one of judgment rather than calculation. The difficulty inherent in the assessment of damages provides no reason for the courts to shirk the task of arriving at the estimate most likely to provide fair and reasonable compensation. Further to the above, the need for a plaintiff to prove that he or she has suffered a diminution in earning capacity that “may” be productive of financial loss123 is to be understood as requiring that the plaintiff establish that the diminution of earning capacity will, on the balance of probabilities, be productive of some financial loss.124 However, consistently with authorities such as Malec v J.C. Hutton Pty Ltd125 and Sellars v Adelaide Petroleum NL,126 once the Court is satisfied on the balance of probabilities that the diminution of earning capacity will be productive of some financial loss, it must then assess the value of that loss by reference to the range of applicable possibilities and contingencies. In assessing the plaintiff’s loss of earning capacity, close attention must be paid to the facts of each case in determining what the plaintiff would have done and earned had the accident not occurred, and what the plaintiff is now likely to be able to do and earn. The question is not one to be resolved by focussing upon, or categorising the case by reference to, the legal structure through which the plaintiff would have generated his or her earnings. Rather, the focus must be upon what money the plaintiff would have had at his or her disposal. As the plurality said in Husher v Husher:127 Deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case. The task is not one to be undertaken by seeking to classify cases as concerning “sole traders” or “partnerships” or “wage-earners” or “trading trusts”, and then attempting to deduce some rule of general application to all cases falling within the classification thus devised. Rather the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal. Only when those inquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff’s earning capacity. In doing so, regard must be had, of course, to all those 123 Adopting the language from Graham v Baker (1961) 106 CLR 340 at 347, as applied in the passage from Husher v Husher (1999) 197 CLR 138 at [7] quoted above. 124 Amaca Pty Ltd v Latz (2018) 264 CLR 505 at [85] (Bell, Gageler, Nettle, Gordon and Edelman JJ); Husher v Husher (1999) 197 CLR 138 at [8], [15]-[22] (Gleeson CJ, Gummow, Kirby and Hayne JJ). 125 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638. 126 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. 127 Husher v Husher (1999) 197 CLR 138 at [23] (Gleeson CJ, Gummow, Kirby and Hayne JJ). -- 36 of 58 -- [2025] SASCA 120 S Doyle JA 33 contingencies of life that might reasonably be expected to affect the course of events in the future. The above summary of the relevant principles reflects the approach applied by this Court in Eicas v Dawson.128 While the common law principles summarised above are qualified in certain respects by the provisions of the Civil Liability Act 1936 (SA),129 none of those qualifications are relevant to the outcome of this appeal. Grounds 1, 2 & 3: challenge to awards for past and future economic loss 137 As set out earlier, the appellant challenges the judge’s awards for past and future economic loss on three grounds. 138 The first involves a complaint about the judge’s finding as to Mr Pastuch’s pre-accident earning capacity. In particular, the appellant contends that the judge erred in finding, and then assessing, past and future economic loss on the basis that Mr Pastuch would have sought work as an interstate truck driver working 66 hours (or five and a half days) per week from a date not more than six months after the accident and continuing until retirement at the age of 67 (Ground 2). 139 The second involves a complaint about the judge’s assessment of Mr Pastuch’s residual earning capacity. In particular, the appellant contends that the judge erred in finding that the appropriate deduction for future earnings (or residual earning capacity) was $60,000 (Ground 3). 140 The third involves an overarching complaint that the judge erred in awarding amounts for past and future economic loss which were unreasonably high (Ground 1). Error in judge’s finding as to pre-accident earning capacity 141 The starting point in determining Mr Pastuch’s past and future economic loss was to determine his pre-accident earning capacity, being essentially what he would have earned had the accident not occurred. 142 As explained earlier, the forensic accountant, Ms Bossert, calculated figures for Mr Pastuch’s past and future economic loss, which she presented as Scenario 1 and Scenario 2. In determining Mr Pastuch’s pre-accident earning capacity, Scenario 1 assumed the average earnings of a full-time truck driver, through to age 67. Scenario 2 used an award rate for an interstate truck driver, working more than full-time (being 66 hours or five and a half days per week), through to age 67. 143 The different assumptions underpinning Scenarios 1 and 2 made a significant difference to the judge’s assessment of Mr Pastuch’s pre-accident earning capacity. The judge’s adoption of Scenario 2 over Scenario 1 resulted in an increased pre-accident earning capacity of close to $700,000, adding 128 Eicas v Dawson [2016] SASCFC 124 at [103]-[114]. 129 In particular, ss 54 and 55 of the Civil Liability Act 1936 (SA). -- 37 of 58 -- [2025] SASCA 120 S Doyle JA 34 approximately $200,000 to the judge’s starting figure for past economic loss, and close to $500,000 to his starting figure for future economic loss.130 144 In basing his assessments of past and future economic loss on Scenario 2, the judge therefore adopted an approach which calculated Mr Pastuch’s pre-accident earning capacity on the assumption that he would have worked five and a half days a week through to age 67. The judge based this approach upon a finding that prior to the accident, Mr Pastuch planned to, and were it not for the accident would have, increased his work hours to this level. 145 At the outset, it may be observed that the judge found only that Mr Pastuch would have increased his work hours to this level at some point in the six months following the date of the accident. Ms Bossert’s calculation assumed this increase would have occurred from the date of the accident. As such, the figures adopted by the judge were generous in Mr Pastuch’s favour. That said, the appellant’s focus on appeal was not upon this aspect of the judge’s approach. Rather, the appellant’s challenge was focussed on the judge’s finding that Mr Pastuch would have increased his work hours to the assumed level. 146 The appellant argues that the judge’s finding to this effect was not supported by the evidence and erroneous. In particular, the appellant argues that whilst Mr Pastuch mentioned a plan to increase his hours, he did so merely in passing and did not give any detailed evidence in support of the plan. Further, any such plan was not consistent with the balance of the evidence in relation to Mr Pastuch’s circumstances and intentions in the lead up to the accident, and was not supported by Ms Lewis’ evidence. The judge’s reasoning in support of the finding was also premised upon some misapprehensions as to the circumstances he relied upon. 147 On the appellant’s argument, the judge should have adopted Scenario 1 on the basis that it assumed future earnings of about $80,000 per annum, which was consistent with Mr Pastuch maintaining his pre-accident earnings of about $75,000 per annum whilst working as a full-time interstate truck driver. 148 In developing this challenge to the judge’s finding of a plan that Mr Pastuch would increase his working hours, the appellant commenced by focussing upon the evidence in relation to Mr Pastuch’s personal, family and work circumstances in the lead up to the accident. As summarised earlier in these reasons, Mr Pastuch had suffered personal tragedies between 2008 and 2010 with the deaths of his brothers and father. His daughter Jayda was born in 2011, but Ms Lewis suffered from post-natal depression. This led to Mr Pastuch reducing his work hours so that he could not only assist in caring for Jayda, but also spend more time with both Jayda and Ms Lewis.131 149 Whilst Mr Pastuch subsequently resumed full-time driving, his evidence was that he was very conscious of making sure that he spent time with Jayda. He 130 That is, before reductions for contingencies, and under ss 56A(5) and 49(3) of the CLA. 131 T41-42, T118 (Mr Pastuch). -- 38 of 58 -- [2025] SASCA 120 S Doyle JA 35 wanted to be a more present father than he had been for his much older son, Brandon. Indeed, this desire and intention to spend more time with his family was part of his motivation both for embarking upon the limousine business, and for buying the Freeling property. Whilst the limousine business was not initially profitable, and indeed resulted in him having to work more hours, the proceeds from its sale contributed to the purchase of the Freeling property in early 2016. Certainly, the Freeling property was intended to cater for a greater focus by Mr Pastuch upon his family. He gave evidence of intending to spend time engaging in activities with Jayda (and any future children), as well as working on tasks or projects at their Freeling property. As to this last matter, the judge found, in making a ‘higher than usual allowance’ for Spargo v Greatorex damages, that Mr Pastuch had planned to do ‘a very large amount’ of work around their property.132 150 Although Mr Pastuch had returned to full-time driving with HPS Transport during 2016, this generally involved him being away for only about three to four days per week (for example, involving one return trip to Perth), not the five to six days assumed in Scenario 2. Mr Pastuch described even the three to four days away from home as leaving him with a busy few days trying to squeeze everything in, including his recreational pursuits with Jayda.133 To return to five to six days work each week would have been inconsistent with Mr Pastuch’s plan to spend more time with his family, particularly Jayda, and working on projects at their newly acquired Freeling property. 151 In addition to being difficult to reconcile with this broader context, the judge’s finding of a plan to resume working five and a half days per week was only supported by some very general oral evidence from Mr Pastuch. In particular, after describing his desire for a change of lifestyle that had motivated the move to Freeling, and the driving he was doing in the lead up to the accident, Mr Pastuch gave the following evidence: Q Was it your plan as [Jayda] got older to increase the amount of interstate work you would do. A Yeah, I’d go back to doing one and halves to Perth. So you’d sort of be away for six days a week and home for the day and back off again to pay the house and everything off and do what you want to do, yeah. Q So is that what you planned to do because of paying the house that you invested in. A Yeah. 152 This was the only evidence from Mr Pastuch in support of the assumption that underpinned Scenario 2. Whilst counsel for the appellant did not cross- examine Mr Pastuch on this topic, the failure to do so is perhaps understandable given the limited, and very general, nature of the evidence led. In any event, it was 132 Reasons [349]. 133 T45, T116-117 (Mr Pastuch). -- 39 of 58 -- [2025] SASCA 120 S Doyle JA 36 necessary for Mr Pastuch to prove his entitlement to an award for economic loss.134 An assertion as to pre-accident earning capacity would not be sufficient for this purpose where it was not supported by, let alone where it was inconsistent with, the balance of the evidence in the case. 153 It is difficult to see how Mr Pastuch’s evidence in support of his plan to increase his working hours could be regarded as anything more than assertion. Certainly, it was very general and lacking in any specificity or detail. While Mr Pastuch said ‘yes’ when asked whether he had a ‘plan’ to increase the amount of his interstate work when Jayda ‘got older’, there was no indication of when he might have started increasing his hours (bearing in mind that Jayda was only five years old when the accident occurred). Nor was there any indication of how long he would have continued working these longer hours for. Given that the ‘plan’ was linked to paying off the Freeling property, it cannot be assumed this was intended to be a permanent change in working hours. Importantly, Mr Pastuch made no attempt to reconcile his asserted plan to increase his hours with his other, more detailed, evidence about his desire to spend more time with his family and at their Freeling property. 154 In addition to these difficulties with Mr Pastuch’s evidence as to his plan to increase his working hours, it is also relevant to bear in mind the notorious difficulties with attaching much weight to the self-serving evidence of a personal injury claimant when addressing hypothetical scenarios.135 It is not as though Mr Pastuch was referring to any concrete plan that he had put in place, let alone commenced to implement, prior to the accident. His evidence was no more than a general assertion, in response to a leading question, as to a hypothetical scenario. 155 Significantly, Mr Pastuch’s evidence did not receive any support from Ms Lewis. Her evidence was that the purpose of selling the limousine business and buying the Freeling property was for a better lifestyle and upbringing for Jayda.136 Although she referred to an intention that Mr Pastuch would ‘keep driving to pay for the bills and the excess mortgage’, this was in a context where he had increased his driving to a consistent level of about three to four days per week after selling the limousine business and while the building work was being done on the Freeling property.137 There was no suggestion in Ms Lewis’ evidence of any plan that involved Mr Pastuch being interstate five to six days per week, leaving her to raise Jayda on her own. Read in context, the reference to Mr Pastuch having to ‘keep driving’ appears to have been a reference to him maintaining the driving 134 See Battunga Country Lions Club v Paues [2021] SASCA 74 at [39]-[40] (Kelly P, Doyle and Bleby JJA); Wainwright v Barrick Gold of Australia Limited [2014] WASCA 15 at [93] (Murphy JA, Pullin and Newnes JJA agreeing). 135 See, for example, Chappel v Hart (1998) 195 CLR 232 at [32] (McHugh J); Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934 at [54] (Kirby J). 136 T247 (Ms Lewis). 137 T341-342 (Ms Bossert); Exhibit A1. -- 40 of 58 -- [2025] SASCA 120 S Doyle JA 37 work that he had resumed, rather than any suggestion he would significantly increase his hours. 156 In addition to Mr Pastuch’s reference to a plan to increase his hours being difficult to reconcile with the evidence in relation to his family circumstances in the lead up to the accident, the judge’s reasoning also exposed some apparent misapprehensions as to those circumstances. 157 The first of these apparent misapprehensions relates to the judge’s references to Jayda’s age at the date of the accident. Whilst Jayda was 11 years of age by the time of the trial, the judge appears to have overlooked that she was only five years of age when the accident occurred. In finding that Mr Pastuch would have increased his hours had the accident not occurred, the judge made reference to Jayda nearing high school age at the date of the accident, and nearing the age of puberty.138 This slip appears to have been material in the judge’s reasoning. He expressly referred to the ‘extra cost pressures’ associated with a teenager,139 as well as the cost of her education.140 Whilst it may be appropriate to infer some additional expenses associated with a teenager, this was not the subject of evidence, let alone any suggestion by Mr Pastuch that it was a reason for him to work longer hours. It appears to have been no more than speculation based upon a mistaken premise. It may be that the judge’s apparent misapprehension as to Jayda’s age contributed to the apparent disconnect between the judge’s finding that Mr Pastuch’s planned to spend more time with his daughter as she was growing up, and his assessment of damages on the basis that he was about to significantly increase his interstate working hours when she was only five years of age. 158 It also seems to me that the judge placed inappropriate emphasis upon what he considered to be financial pressure or stress, or at least a financial need for Mr Pastuch to increase his hours. The judge referred, for example, to Mr Pastuch continuing to drive trucks while operating the limousine business because they ‘desperately needed the money’.141 The judge also seems to have relied upon financial pressure or stress as supporting his finding that Mr Pastuch would have increased his work hours. He certainly referred multiple times to Mr Pastuch ‘needing’ to increase his work hours in order to meet his financial commitments.142 Whilst it is true that Mr Pastuch (and Ms Lewis) made reference to Mr Pastuch resuming his truck driving to help pay for the Freeling property, and Mr Pastuch made reference to having to pay the house off when mentioning a plan to increase his hours, it does not seem to me that the evidence went as far as suggesting any particular financial stress or pressure, or that he needed to increase his hours in order to meet his financial commitments. That is particularly so in circumstances 138 Reasons [120], [293] (see above). 139 Reasons [120] (see above). 140 Reasons [325] (see above). 141 Reasons [123] (see above). 142 Reasons [120], [293], [295], [318] (see above). -- 41 of 58 -- [2025] SASCA 120 S Doyle JA 38 where, as the evidence revealed, Ms Lewis had received a substantial inheritance which had enabled them to pay a ‘huge chunk’ of the mortgage.143 159 Related to this, the judge made reference to Ms Lewis no longer being employed and having taken up an interest in animal rescue ‘at their cost’.144 To the extent this was intended to support the judge’s suggestion of financial stress or hardship, it again appears to go further than the evidence justifies. The reference to an interest in animal rescue appears to have been based only upon a passing reference to Ms Lewis wanting at some point to establish an aviary at their Freeling property.145 There is no reason to think that Ms Lewis intended embarking upon some venture which would be a material financial burden, let alone a venture which would require Mr Pastuch to work extra hours in order to finance it. 160 In summary, I do not consider that the evidence supported a finding that, prior to the accident, there was any financial imperative for Mr Pastuch to increase his work hours. 161 Bearing in mind all of the above, I am satisfied that the judge erred in finding that, had the accident not occurred, Mr Pastuch would have increased his working hours to the equivalent of 66 hours, or five and a half days, per week. I do not accept that the evidence justified or permitted a finding that Mr Pastuch would have increased his hours to this level for any sustained period of time, let alone right through to retirement at the age of 67 years. 162 I accept that the judge made a significant reduction for the usual contingencies of life to reflect the prospect that Mr Pastuch’s lack of control over his weight might have impacted his earnings. But this was not a sufficient basis for commencing with an unrealistic starting point. An appropriate assessment of economic loss should ordinarily commence with an attempt to identify the most likely outcome or scenario, before then making adjustments for contingencies or vicissitudes.146 163 The judge’s finding that Mr Pastuch would have increased his working hours led to an inflated finding as to Mr Pastuch’s pre-accident future earning capacity. In my view, the judge ought to have found that the average earnings of a full-time interstate truck driver, as reflected in Scenario 1, was the appropriate starting point in measuring his pre-accident future earning capacity. This assumed an annual income of about $80,000, which was consistent with Mr Pastuch’s relatively settled pre-accident earnings in the lead up to the accident of approximately $1,450 per week, or about $75,000 per annum. 143 T308 (Ms Lewis). 144 Reasons [120], [325] (see above). 145 T46 (Mr Pastuch); T247, 302-303 (Ms Lewis). 146 See, for example, Battunga Country Lions Club v Paues [2021] SASCA 72 at [74] (Kelly P, Doyle and Bleby JJA). -- 42 of 58 -- [2025] SASCA 120 S Doyle JA 39 164 In determining that it is appropriate to find error in the judge’s finding as to Mr Pastuch’s pre-accident earning capacity, I have not overlooked the judge’s potential advantage from having seen and heard Mr Pastuch (and Ms Lewis) give evidence at trial. However, I do not think this advantage was of any great significance in the present context. Whilst Mr Pastuch said that he had a plan to increase his hours, I do not think the judge’s acceptance of this evidence involved a credit or demeanour-based finding of the type that would require incontrovertible evidence or a compelling inference to the contrary, or be glaringly improbable, before an appellate court would intervene. 165 Evidence by a plaintiff in a personal injury case as to a hypothetical or counter-factual is readily distinguishable from evidence as to past events. Whilst the weight to be attached to the latter will often turn upon the credibility and reliability of the plaintiff, the weight to be attached to the former category of evidence is more problematic. As mentioned earlier, appellate courts have generally been sceptical as to the weight to be attached to findings based upon self- serving evidence of this type. A finding as to what a plaintiff would have done had the accident not occurred is ordinarily an inference or conclusion drawn from an assessment of the totality of the evidence as to the surrounding circumstances, rather than a finding relying heavily upon the reliability or credit of the plaintiff. Although the position may have been otherwise had there been evidence to suggest that Mr Pastuch had put in place, or indeed embarked upon, some clear plan as to the future, there was no evidence of that type. 166 It may be accepted that the judge in the present case had an opportunity to assess the character and personalities of Mr Pastuch and Ms Lewis while they gave evidence, and that this may have influenced his assessment of the hours Mr Pastuch would have worked had the accident not occurred. But I am not persuaded that this provided an adequate basis for his Honour’s finding and approach. 167 In any event, to the extent that it is appropriate for this Court to afford some deference to the judge’s finding, I consider that the evidence as to Mr Pastuch’s broader personal and family circumstances provided a compelling basis for rejecting the judge’s finding that Mr Pastuch would have increased his working hours to five and a half days per week through to age 67. For the reasons explained, the weight of the evidence supported a finding that it was more likely that Mr Pastuch would have continued to work at approximately the level he was working prior to the accident. Accordingly, I am satisfied that the judge erred in adopting Scenario 2, and should have adopted Scenario 1, in determining Mr Pastuch’s pre-accident earning capacity. 168 I will return to the implications of the above conclusion for the outcome of this appeal after addressing the other contended error in the judge’s assessment of Mr Pastuch’s economic loss. -- 43 of 58 -- [2025] SASCA 120 S Doyle JA 40 Error in judge’s finding as to residual earning capacity 169 Consistently with the principles recited earlier in these reasons, the judge’s task in assessing Mr Pastuch’s economic loss was to assess his loss of earning capacity. Having made an assessment of his pre-accident earning capacity, the judge was required to assess Mr Pastuch’s residual earning capacity. 170 The appellant accepts that, insofar as the past was concerned, it was appropriate for his Honour to proceed on the basis that his residual earning capacity was reflected by what he had earned between the accident and 30 June 2023 (including both his earnings as a truck driver, and an estimate of his earnings through his newly-established tow truck business). 171 However, insofar as the future was concerned, the appellant contends that the judge’s assessment of $60,000 for Mr Pastuch’s residual earning capacity was erroneously low. As the appellant submitted, given Mr Pastuch’s relatively young age (49 years) at the date of the assessment (30 June 2023), this reflected a relatively nominal residual earning capacity. Although the judge did not expose reasoning in these terms, using the agreed multiplier through to age 67 of 613, this represented a residual earning capacity of only about $100 per week. 172 The appellant contends that the judge erred in assessing Mr Pastuch’s residual earning capacity at only $60,000; that the judge ought to have found that Mr Pastuch retained the capacity to continue working for two to three days a week as a tow truck driver (as he was at the date of assessment); and that this ought to have led to a figure for residual earning capacity of significantly more than $60,000. 173 In addressing the appellant’s submissions in support of this contended error, and Mr Pastuch’s residual earning capacity more generally, it is appropriate to commence by noting the evidence and findings to the effect that, following the accident, Mr Pastuch was not able to work for about nine or 10 months. He then returned to work with his pre-accident employer, HPS Transport, for a period of about three years, through to his termination in March 2021. For a period of over two years from late 2018, he was working on a full-time basis, without any time off for physical problems.147 His post-accident work with HPS Transport had initially been confined to light duties. It later progressed to driving, with some loading and unloading work, although Mr Pastuch did experience some difficulties, leading ultimately to the occasion that resulted in his termination. 174 Mr Pastuch subsequently embarked upon a tow truck business, in partnership with Ms Lewis. As explained earlier, this work suited him because he had flexibility in the hours and days he worked. He was able to do this type of driving because it was less physically demanding than driving semi-trailers or road trains. Mr Pastuch was still working in this business, and driving two to three days per week, at the date of the trial and assessment. Whilst he had been experiencing 147 T145-146 (Mr Pastuch). -- 44 of 58 -- [2025] SASCA 120 S Doyle JA 41 some physical difficulties, and said that he was considering hiring another person to assist with the driving, he did not go so far as to say that he intended to stop working as a tow truck driver. 175 In confining Mr Pastuch’s residual earning capacity to an essentially nominal figure, it seems that the judge relied upon his finding that Mr Pastuch was, by the date of assessment, essentially unemployable. 176 It is true that there was medical evidence to the effect that Mr Pastuch had become essentially unemployable, by reason of the combination of his physical and psychological injuries from the accident. However, read closely, I do not consider that the evidence went as far as supporting a finding that Mr Pastuch had no residual earning capacity. The evidence did support a finding that he was not able to return to interstate truck driving. Further, whilst acknowledging that Mr Pastuch may have been capable of some other forms of light work (for example, in a factory setting), the evidence suggested that he would find it difficult to obtain alternative employment, not only because of a lack of skills, but also by reason of his psychological difficulties. However, the medical evidence was nevertheless consistent with Mr Pastuch retaining some capacity to continue as a self-employed tow truck driver. Indeed, there was some evidence to suggest that this work was not only within his physical capabilities, but also of potential benefit to his psychological well-being.148 A consideration of Mr Pastuch’s residual earning capacity ought to have reflected this capacity.149 177 Whilst apparently accepting that Mr Pastuch remained able to continue his tow truck driving, the judge appears to have attached only a nominal value to this residual earning capacity on the basis that the tow truck business was not profitable. This approach is difficult to reconcile with both the evidence, and with the balance of the judge’s reasoning. 178 To the extent that the judge relied upon Ms Bossert’s evidence as suggesting that the tow truck business was ‘barely profitable’,150 this involved a misunderstanding of her evidence. Her evidence was merely that, on the invoices and other financial information available to her, it had not been possible for her to form any conclusion regarding the likely profitability of the business for the period following 1 July 2022.151 It would seem that the reason for this was that, even though she had been provided with receipts suggesting increasing revenue, she did not have sufficient information to form a reliable view about the expenses incurred by the business.152 148 T274, T287, T292 (Mr Begg); T317 (Ms Lewis). 149 Van Velzen v Wagener (1975) 10 SASR 549 at 550 (Bray CJ); Montemaggiori v Wilson [2011] WASCA 177 at [101] (Murphy JA); Tabloid v Pringle [2024] WASCA 152 at [51] (Vaughan JA, Vandongen JA and Tottle J). 150 Reasons [344] (see above). 151 Exhibit A7. 152 T345 (Ms Bossert). -- 45 of 58 -- [2025] SASCA 120 S Doyle JA 42 179 To the extent that the judge relied upon Mr Pastuch’s evidence that he was considering hiring another driver, I do not think this was a sufficient basis for finding that the tow truck business was not profitable, let alone that Mr Pastuch had no residual earning capacity. Although Mr Pastuch did express a desire, if not intention, to have another person help him with the driving, he had not committed himself to that path. Despite the judge at one point referring to Mr Pastuch having already commenced the process of training or ‘bringing on’ an employee,153 that was not the evidence. Read in context, his evidence was more to the effect that he hoped, and perhaps anticipated, that the business would get to the point that it would be possible for him to arrange this assistance.154 180 Further, and in any event, to the extent that the judge based his view that the business was not profitable upon his concern that it was not financially viable or sensible for the business to take on an extra driver, I do not think this was appropriate. As his Honour acknowledged,155 he did not have any evidence that would have enabled him to make any clear assessment of the financial implications of this change in the structure of the tow truck business. But more fundamentally, as the authorities emphasise, in assessing damages for loss of earning capacity, the focus should be on the injured person’s capacity to generate income, not the particular business model they might choose to exploit that capacity.156 181 In terms of the financial information available to the Court, the appellant pointed to evidence to the effect that receipts for the tow truck business had been increasing and, for the quarter ending December 2022,157 were approximately $22,000. The appellant also pointed to expenses in the financial records for the business which, save for what appeared to be one-off items for repairs, were relatively low. The principal cost had been fuel at the rate of approximately 30 per cent of turnover, with other expenses (such as insurance, registration, servicing, repairs and other minor items) being less than $10,000 in total per annum.158 On these rough figures, it would seem that in the period leading up to the date of assessment, Mr Pastuch’s tow truck business was generating a material profit, perhaps at the rate of about $30,000 per annum after tax. 182 In this context, it is noteworthy that the judge himself allowed an amount of $25,000 for Mr Pastuch’s earnings from his tow truck business for the period ending 30 June 2023.159 Although the business had been in operation for longer than one year by that date, the bulk of the earnings were derived in that period. This allowance of $25,000 for past earnings from the tow truck business is difficult 153 Reasons [306], [327] (see above). 154 T95-96, T110, T164 (Mr Pastuch). 155 Reasons [323] (see above). 156 Battunga Country Lions Club Pty Ltd v Paues [2021] SASCA 72 at [42] (Kelly P, Doyle and Bleby JJA); Husher v Husher (1999) 97 CLR 138 at [18]-[23] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Mastaglia v Burns [2006] WASCA 190 at [89]-[91] (Martin CJ). 157 Being the most recent quarter for which the receipts had been provided. 158 Tax return for the year ended 30 June 2022 (EAB 269). Exhibit 1A, p 310 and p 408-506. 159 Reasons [327]. -- 46 of 58 -- [2025] SASCA 120 S Doyle JA 43 to reconcile with the judge’s decision to make only a relatively nominal allowance for residual earning capacity after that date.160 183 On the calculations provided to this Court,161 even if the judge had used a residual earning capacity of, say, $25,000 per annum, then this would have resulted in a deduction for residual earning capacity of about $300,000. Even a figure of, say, $18,000 per annum, would have resulted in a deduction for residual earning capacity of about $210,000. 184 Alternatively, assuming a residual capacity to work two to three days per week as a tow truck driver, the judge might have used a percentage of the award rate for tow truck drivers to determine an appropriate figure. On the appellant’s calculations, which were not challenged, an assessment based on 50 per cent of this award would have meant an annual figure for net earnings of about $24,000. This would have equated to a residual earning capacity of about $280,000. 185 In determining the appellant’s challenge to the judge’s approach to Mr Pastuch’s residual earning capacity, it is appropriate to keep firmly in mind that Mr Pastuch, as plaintiff, bore the overall burden of proving his loss. In cases where a plaintiff has lost his or her pre-accident earning capacity, and has not been able to find alternative employment, an evidentiary onus may shift to a defendant seeking to contend that the plaintiff has some residual earning capacity.162 However, in a case such as the present, where the plaintiff is continuing to generate earnings in some other form of employment, I do not think it is apposite to speak of any shift in the evidentiary onus. In my view, the onus remained on Mr Pastuch to establish that he did not have any residual earning capacity, or at least that any earning capacity which he retained was essentially nominal. But even if there was a shift in the evidentiary onus, with the appellant needing to point to evidence that Mr Pastuch retained something more than a nominal earning capacity, the appellant discharged that onus. 186 In my view, the evidence supported a material residual earning capacity. I accept that it would have been appropriate to use a figure below the bottom end of the range contemplated by the various calculations suggested by the appellant, given Mr Pastuch’s evidence to the effect that he had been beginning to find the tow truck driving more difficult. Whilst Mr Pastuch did not quite say as much, there was a risk, if not likelihood, that he would need to reduce his hours over time. In my view, an allowance of approximately $150,000 would have been appropriate for the appellant’s residual earning capacity. 160 Albeit noting that at one stage the judge suggested the business was generating about $8,000 in profit per annum (Reasons [327]). 161 Using the agreed multiplier of 613 for Mr Pastuch through to 67 years of age, with a discount rate of 5 per cent. 162 Montemaggiori v Wilson [2011] WASCA 177 at [33] (Buss and Newnes JJA), [97]-[103] (Murphy JA); Rabay v Bristow [2005] NSWCA 199 at [73] (McColl JA, Handley and Bryson JJA agreeing); Tabloid v Pringle [2024] WASCA 152 at [53] (Vaughan JA, Vandongen JA and Tottle J). -- 47 of 58 -- [2025] SASCA 120 S Doyle JA 44 187 For the reasons set out, the judge erred in his assessment of Mr Pastuch’s residual earning capacity. Once again, I consider that the judge’s finding in this respect was a demeanour or credit-based finding which reflected any advantage on his Honour’s part. The judge’s assessment of Mr Pastuch’s evidence as to the difficulties he had experienced when driving tow trucks, and his assessment of Mr Pastuch as a person, were relevant in a general way. However, as explained, it appears that the central reason for the judge allowing only a nominal figure for Mr Pastuch’s residual earning capacity was his finding that the tow truck business was not profitable. This was not a matter that turned upon Mr Pastuch’s evidence. In any event, for the reasons explained, I consider that the evidence and submissions to which I have referred provided a compelling basis for rejecting the judge’s assessment of Mr Pastuch’s residual earning capacity. Reassessing the past and future economic loss 188 It follows from the above that the appellant has made out its complaints the subject of Grounds 1 (pre-accident earning capacity) and 2 (residual earning capacity). Having successfully established these bases for challenging the judge’s assessments of Mr Pastuch’s pre-accident earning capacity and residual earning capacity, it also follows that Mr Pastuch has established a basis for setting aside the awards for past and future economic loss. 189 It is to be acknowledged that, in their ultimate assessment, the total awards for past and future economic loss in a personal injury case involve estimates or judgments which are akin to a discretion, and are subject to the principles of appellate restraint in House v The King. However, in circumstances where it has been demonstrated that an important integer in those estimates or judgments was erroneous, that will ordinarily be a sufficient basis to establish error in the ultimate award. In my view, that is the case here. The judge’s erroneous findings as to Mr Pastuch’s pre-accident earning capacity and residual earning capacity provide a sufficient basis to set aside the ultimate awards for past and future economic loss, on the basis that they were founded upon a misapprehension as to the appropriate factual basis for the assessment of those awards. 190 However, even if that were not so, I consider that the reasons which I have given for finding error in these integers in the judge’s assessment of Mr Pastuch’s economic loss also establish that the awards for past and future economic loss were unreasonably high, or manifestly excessive, in the sense required by House v The King. In other words, I am also satisfied that Ground 3 has been made out. 191 In these circumstances, it is appropriate for this Court to intervene and reassess Mr Pastuch’s economic loss. 192 In so doing, for the reasons already given, I consider it is appropriate to adopt Scenario 1 as representative of Mr Pastuch’s pre-accident earning capacity. There being no challenge to Ms Bossert’s calculation from her latest report (Exhibit A10), I would use her figures for past economic loss ($222,494), past loss of superannuation ($19,087) and a Fox v Wood allowance ($28,594), giving a sub- -- 48 of 58 -- [2025] SASCA 120 S Doyle JA 45 total of $270,175. There being no submission to the contrary from the parties, I would, like the trial judge, deduct $25,000 as an estimate of Mr Pastuch’s earnings from the tow truck business up to 30 June 2023, giving a figure of $245,175. This figure must then be discounted by 20 per cent under s 56A(5) of the CLA, resulting in an award of $196,140 for past economic loss. 193 Turning to Mr Pastuch’s claim for future economic loss, I would commence with the Scenario 1 figures for pre-accident earning capacity ($700,514), and future loss of superannuation ($94,946), giving a sub-total of $795,460. The judge reduced his equivalent sub-total by 25 per cent for contingencies, on the basis that Mr Pastuch’s difficulties in controlling his weight made a greater than usual reduction appropriate. Having adopted a more conservative assessment of Mr Pastuch’s pre-accident work capacity,163 I do not think it is necessary to make a greater than usual allowance for contingencies. I would instead allow 15 per cent for contingencies, giving a figure of $676,141. I would next reduce this by $150,000 on account of what I have found is Mr Pastuch’s residual earning capacity, giving a figure of $526,141. This must then be reduced by 20 per cent under s 56A(5) of the CLA, resulting in an award for future economic loss of $420,913. Ground 4: future care 194 The judge awarded Mr Pastuch an amount of $63,750 for future care, being $85,000 reduced by 25 per cent for contingencies. This was for paid or commercial services, rather than gratuitous services. 195 Ground 4 involves a challenge to this head of damages. Although there was evidence to support a finding that Mr Pastuch required a bit over two hours of domestic assistance per week, these services had been provided gratuitously by his wife, Ms Lewis, up to the date of trial. The appellant contends that, in circumstances where s 58 of the CLA precluded recovery for gratuitous services at this level in the future, an award for commercial services required a finding that the services were not only required, but also that they would be obtained from a commercial provider. The appellant contends that the judge erred in awarding damages for future care in circumstances where he made no finding to the effect that the services would be provided on a commercial basis, and the evidence did not support a finding to this effect. 196 The judge commenced his consideration of Mr Pastuch’s claim for care or services by setting out the terms of s 58 of the CLA: 58—Damages in respect of gratuitous services (1) Damages are not to be awarded— 163 That is, using the average weekly earnings of a full-time interstate truck driver, rather than award rates for a driver working five and a half days, or 66 hours, per week. -- 49 of 58 -- [2025] SASCA 120 S Doyle JA 46 (a) to allow for the recompense of gratuitous services except services of a parent, spouse, domestic partner or child of the injured person; or (b) to allow for the reimbursement of expenses, other than reasonable out-of- pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person. (2) Damages awarded to allow for the recompense of gratuitous services of a parent, spouse, domestic partner or child are not to exceed an amount equivalent to 4 times State average weekly earnings. (3) However, the court may make an award in excess of the limit prescribed by subsection (2) if satisfied that— (a) the gratuitous services are reasonably required by the injured person; and (b) it would be necessary, if the services were not provided gratuitously by a parent, spouse, domestic partner or child of the injured person to engage another person to provide the services for remuneration, but, in that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings. (4) Despite the preceding subsections, in a case involving an injured person who has suffered personal injury arising from an MVA motor accident— (a) damages referred to in subsection (1) are not to be awarded unless— (i) the injury scale value that applies under the regulations in relation to the injury exceeds 10; and (ii) the services are provided or to be provided— (A) for at least 6 hours per week; and (B) for a period of at least 6 consecutive months; and (b) any hourly rate used for the purposes of determining any damages awarded to allow for the recompense of gratuitous services of a parent, spouse, domestic partner or child is not to exceed a rate prescribed by the regulations for the purposes of this paragraph. (5) … (6) … 197 It can be seen that, under s 58(1), damages for gratuitous services may only be awarded in respect of services provided by a parent, spouse, domestic partner or child of the injured person. Under s 58(3), the Court may only make an award if satisfied that the services are reasonably required by the injured person, and that it would be necessary to engage a person to provide the services for remuneration if they were not provided gratuitously. Under s 58(4)(a), there are further conditions or limitations upon an award for gratuitous services for cases involving injuries arising from a motor vehicle accident. In particular, an award may not be -- 50 of 58 -- [2025] SASCA 120 S Doyle JA 47 made unless: the injury attracts an injury scale value in excess of 10 (s 58(4)(a)(i)); and the services are provided, or to be provided, for at least six hours per week, and for a period of at least six consecutive months (s 58(4)(a)(ii)(A) and (B)). 198 The terms of s 58(4)(a)(ii) give rise to potential issues of construction in respect of the threshold level or intensity of services (subsection (A)) and the threshold duration or longevity of the services (subsection (B)).164 As the judge noted, one issue is whether these threshold requirements must be met by services provided by persons qualifying under s 58(1), or whether they can be met by services provided by other persons. The judge preferred the latter construction.165 199 Another issue of construction concerning the application of these thresholds is whether the intensity threshold is an ongoing requirement (with the result that whenever the need for services falls below six hours per week, they cease to become claimable), or whether it is a requirement which need only be satisfied once. The New South Wales Court of Appeal has favoured the former approach in the context of a relevantly identical provision.166 In so doing, that Court declined to follow an earlier decision of the Queensland Court of Appeal which had favoured the latter approach in relation to a similar, but slightly differently worded, provision.167 Whilst I would be inclined to follow the approach taken by the New South Wales Court of Appeal, there is no need for me to reach a concluded view. The trial judge in the present matter appears to have adopted this approach, and the respondent has not contended for a contrary approach on appeal. It is appropriate that this Court proceed on the basis that the intensity threshold in s 58(4)(a)(ii)(A) of six hours per week was an ongoing precondition to recovery for gratuitous services. 200 Returning to the trial judge’s reasoning, his Honour next noted the parties’ agreement as to the rates for calculating any award for gratuitous or commercial services: gratuitous services were to be awarded at the rate of $25 per hour, and commercial services at the rate of $51 per hour.168 Whilst not clearly explained, it seems that the rationale for the difference between these two rates is that the former was intended to represent the market cost of providing the relevant services,169 whereas the latter was intended to represent the market rate paid to a commercial provider of the relevant services.170 164 See, for example, Hill v Forrester (2010) 79 NSWLR 479 at [73] (Sackville AJA). 165 Reasons [355]-[359]. 166 Hill v Forrester (2010) 79 NSWLR 479 at [98] (Sackville AJA); Ridolfi v Hammond (No 2) [2012] NSWCA 67 at [12] (Sackville AJA, Beazley and Campbell JJA agreeing). 167 Kriz v King [2007] 1 Qd R 327 at [18] (McMurdo P, Jerrard JA and Helman J agreeing); applied in Sanders v Mount Isa Mines Ltd [2023] QSC 188 at [1661] (Williams J). 168 Reasons [360]. 169 Consistently with Van Gervan v Fenton (1992) 175 CLR 327; and subject to the cap of $25 per hour (indexed) under the Civil Liability Regulations 2013 (SA), reg 19. 170 See the discussion of the relevant considerations in Amaca Pty Ltd v Werfel (2020) 138 SASR 295 at [513]-[519] (Kourakis CJ, Nicholson and Livesey JJ). -- 51 of 58 -- [2025] SASCA 120 S Doyle JA 48 201 The judge considered that the threshold requirements for gratuitous services had been met for various periods in the past, and made an assessment of the value of those services.171 This aspect of his Honour’s damages assessment is not challenged on appeal. 202 The judge found that from February 2020 onwards, ‘the ongoing six-hour threshold has not been met’.172 It followed that Mr Pastuch was not entitled to any award for gratuitous services after that date. However, having regard to the evidence of Mr Varricchio (physiotherapist) to the effect that Mr Pastuch would require about 2.3 hours per week of assistance with cleaning and gardening,173 the judge considered that it was nevertheless appropriate to make an award for future commercial services. His Honour reasoned: [370] In relation to commercial care which is agreed at the rate of $51 per hour, the respondent contends that no allowance should be made merely as a substitute for gratuitous care in order to circumvent the limitations within s 58 of the CLA. The respondent further contends that if commercial domestic care was unlikely to be retained in the future, then no compensation should be allowed for it. The circumstances of the case must be taken into account. I have taken into account some of those circumstances in my earlier discussions. I have accepted that the marriage of Mr Pastuch and Ms Lewis is continuing albeit that there is disharmony. This assessment must be made in the background of my satisfaction that such services would at some point be available in place of gratuitous care. In Van Gervan v Fenton,174 the High Court held that merely because services of the type needed had previously been supplied to the plaintiff by members of his family is irrelevant and marital or family obligation do not affect the level of damages to be assessed. In Mr Varricchio’s second report of 10 October 2022, he makes an assessment of services required on a weekly basis amounted to 2.3 hours per week. This calculates to a sum of $117.30 per week. The whole of life multiplier as identified by Ms Bossert is … 871.66. The applicant contends that, based upon this actual figure, a base figure of $102,288 is the starting point for the assessment for future care/activities of daily living. There is also a necessity to build in an assessment for contingencies such that, with time, a physical condition is naturally likely to worsen and require a higher level of care. For example, Mr Varricchio in his second report makes a provision for car washing in the amount of $637 per year which equates to $12.25 per week and using the multiplier at 872, a loss of $10,680 is allowed. 203 It can thus be seen that his Honour referred to a ‘base figure’ for future commercial services of $102,288, which represented 2.3 hours of services per week, at $51 per hour, using a whole of life multiplier of 871.66. It appears that his Honour considered it appropriate to use this base figure as a starting point for his assessment. However, wielding a broad axe, he ultimately adopted a figure of slightly less than 85 per cent of this (being $85,000), which he then reduced by 25 per cent for contingencies to provide his final figure of $63,750: 171 Reasons [361]-[369]. 172 Reasons [366]. 173 Noting that this was consistent with the evidence of Mr Tippett (physiotherapist) to the effect that he would require just over two hours per week of assistance for domestic tasks such as cleaning and gardening. 174 [1992] HCA 54; (1992) 175 CLR 327. -- 52 of 58 -- [2025] SASCA 120 S Doyle JA 49 [371] In my opinion, some provision must be made for future care based upon the very likely deterioration in the physical position of Mr Pastuch as a result of the accident. I am unable to accept the submission of the respondent that no allowance should be made. However, equally I am unable to accept the contentions of the applicant in relation to the sum claimed. [372] In the end, I have arrived at a broad axe approach of allowing $85,000 including for all of those matters identified by the experts in their reports. I would reduce that amount by 25 % on a contingency basis to the sum of $63,750. 204 On appeal, the appellant does not challenge the finding that Mr Pastuch requires approximately 2.3 hours per week assistance with cleaning and gardening.175 However, the appellant challenges the award made on the basis that, in circumstances where Mr Pastuch was not entitled to recover for the gratuitous provision of these services, his ability to recover any damages for these services required a finding that Mr Pastuch would have paid for them. 205 Put another way, the appellant accepts that s 58 of the CLA, and in particular the limits upon the ability to recover damages for an injury created need for services, governs only the recovery for gratuitously provided services. The appellant further accepts that a plaintiff remains entitled to recover for commercially provided services without any need to meet the threshold intensity and longevity requirements of s 58. However, in order to recover for commercially provided services, the plaintiff must establish more than an injury-related need for services. The plaintiff must also establish that he or she is likely to incur the cost of obtaining those services from a commercial provider, rather than relying upon them being provided gratuitously. To permit recovery without such a finding would be contrary to, or at least have the effect of undermining, the operation of s 58 of the CLA. 206 I accept the appellant’s approach to an award for commercial services. In other words, I accept that the recovery of damages for the provision of commercial services requires a finding not only that there is an injury-related need for services, but also that the plaintiff is likely to incur the cost of obtaining those services from a commercial provider.176 In a case where the injury-related need has previously been met through the provision of gratuitous services, recovery of an award for commercial services requires a finding that some or all of the gratuitous assistance provided in the past is likely, at some point, to become unavailable or otherwise be replaced by services obtained from a commercial provider.177 175 No point was taken that some of these services might have been for the benefit of the household rather than Mr Pastuch personally (Amaca Pty Ltd v Werfel (2020) 138 SASR 295 at [510]-[512] (Kourakis CJ, Nicholson and Livesey JJ)); perhaps because the premise of the award assumed Mr Pastuch’s marriage might fail. 176 Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [46]-[47] (Basten JA); Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67 at [108] (Gleeson JA, Simpson AJA agreeing). 177 Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [148] (Tobias AJA, Basten and Meagher JJA agreeing); ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 at [63] (Sackville AJA, Gleeson JA and McDougall J agreeing). -- 53 of 58 -- [2025] SASCA 120 S Doyle JA 50 207 Whilst the plaintiff undoubtedly carries the onus of establishing an entitlement to damages for commercial services, the weight of authority favours the operation of the principles in Malec v JC Hutton Pty Ltd178 in this context.179 The appellant did not oppose this Court applying those principles, and I consider it appropriate to do so. Whilst this enables the Court to take account of possibilities, without having to be satisfied as to any particular scenario on the balance of probabilities, it is not a licence to speculate. As the New South Wales Court of Appeal remarked in Miller v Galderisi:180 … it is not appropriate in this case to simply pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future. 208 There must be a proper evidential foundation for an inference as to the nature, timing and level of the commercial services which it was likely, or at least possible, that the injured plaintiff would need and obtain. Indeed, as Basten JA observed in Australia and New Zealand Banking Group v Haq,181 given that any finding as to the probable nature, timing and level of the commercial services to be obtained will need to be adjusted for positive and negative contingencies or vicissitudes in any event, there may often be no practical difference between the differing approaches. 209 The difficulty for Mr Pastuch in the present case is that the cleaning and gardening have to date been performed gratuitously by his wife, Ms Lewis. And neither Mr Pastuch nor Ms Lewis gave evidence to the effect that there was any intention that Mr Pastuch would commence to obtain these services commercially at some point in the future. In the context of caring for him more generally, Mr Pastuch said that he expected that his wife would continue to help him,182 albeit that he qualified this by alluding to the difficulties in their marriage (‘if my wife stays with me’). 210 Nor did the judge make any clear finding to the effect that any of the cleaning or gardening services required by Mr Pastuch would, at any time in the future, be obtained from a commercial provider. The closest the judge came was his reference, in paragraph [370], to his acceptance that there had been some 178 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 (Deane, Gaudron and McHugh JJ). 179 Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67 at [106] (Gleeson JA) to the effect that it was not necessary to determine the issue, but noting the body of authority for the view that the approach in Malec should be accepted: Gordon v Truong [2014] NSWCA 97 at [26] (Basten JA), cf [133]-[134] (Simpson JA), [51] (Macfarlan JA agreeing); White v Benjamin [2015] NSWCA 75 at [85]-[89] (Basten JA, Meagher JA agreeing); Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95 at [81] (Basten JA, McColl and Macfarlan JJA agreeing); Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [101] (Basten JA, Meagher JA and Adamson J agreeing); Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [49] (Basten JA). 180 Miller v Galderisi [2009] NSWCA 353 at [24] (Allsop P, Basten and MacFarlan JJA); Gordon v Truong [2014] NSWCA 97 at [31] (Basten JA). 181 Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [50] (Basten JA), [236] (Sackville AJA). 182 T223 (Mr Pastuch). -- 54 of 58 -- [2025] SASCA 120 S Doyle JA 51 ‘disharmony’ in Mr Pastuch’s marriage with Ms Lewis, and his ‘satisfaction that such services would at some point be available in place of gratuitous care’. 211 Whilst not intending to be overly pedantic, the issue was not whether commercial services might become ‘available’, but rather whether the plaintiff was likely to pay to obtain those services from a commercial provider (for example, because gratuitous services will become unavailable). In any event, to the extent that the judge meant that he was satisfied that Mr Pastuch would obtain commercial services from a commercial provider at some point in the future, the only basis he suggested for this was disharmony in their marriage. 212 It may be accepted that, were their marriage to fail, Mr Pastuch would be likely to make use of a commercial provider to assist him with cleaning and gardening. However, the evidence did not suggest that their marriage was likely to fail. Both Mr Pastuch and Ms Lewis gave evidence to the effect that, although there had been difficulties in their relationship, they were both trying and intending to work through those difficulties. At most, it could be said that there was some prospect that their marriage might fail. Whilst perhaps providing a basis for some award, this evidence did not provide a proper basis for an award calculated by reference to a starting point which assumed about two hours per week from the date of assessment (30 June 2023) and for the balance of Mr Pastuch’s life. 213 In my view, the judge’s award was erroneous and must be set aside. It was based upon either a flawed approach to what was required in order to establish an entitlement to an award for commercial services, or a finding as to the obtaining of those services which was not supported by the evidence. Once again, I do not consider that any finding the judge made in this respect was one in respect of which he had any real advantage over this Court. 214 It remains to consider whether this Court should substitute some alternative award for future commercial services. 215 The appellant’s primary submission is that this Court should not substitute any award for commercial services, both on the basis that Mr Pastuch did not make a clear claim for such damages at trial, and that there was, in any event, an inadequate evidentiary foundation for any award. 216 As to the first point, it is fair to say that the basis for any award for future care or services was not addressed in much detail at trial. Mr Pastuch did not make any clear submission to the effect that the award for future care should be approached on the basis that he would, at some point, commence to obtain domestic assistance from a commercial provider rather than from his wife. Whilst the parties seem to have been prepared to leave the matter for the judge to determine as he saw fit, the fact that the parties agreed rates for both gratuitous services and commercial services suggests to me that the parties left it open to the judge (and correspondingly open to this Court) to make an award if the evidence permitted it. -- 55 of 58 -- [2025] SASCA 120 S Doyle JA 52 217 As to the evidence, whilst it is not appropriate to speculate without any evidential foundation, it is appropriate to proceed by way of relatively broad brush inferences from the evidence as a whole. In my view, it is appropriate to proceed on the basis that there is a likelihood that, at some point in the future, Mr Pastuch will need and seek at least some services on a commercial basis. I have mentioned that there is a risk that, at some point, his marriage may fail, with the result that he will probably be reliant upon a commercial provider. But even accepting that his marriage survives, I accept that it is likely that at some point Mr Pastuch will turn to a commercial provider to assist with domestic tasks such as cleaning and gardening. There may come a time when Ms Lewis is no longer prepared or able to provide all of the services required, particularly if, as a result of the damages to be awarded to Mr Pastuch, they have an improved financial capacity to pay a commercial provider. 218 In attempting to quantify an award for future commercial services on the basis I have described, it would be artificial to base the award on a particular level of services at a particular time. In my view, it is appropriate to proceed on the basis of a lump sum intended to reflect the findings set out in the preceding paragraph. I would substitute an award of $25,000 for future care. Ground 5: loss of consortium 219 Ground 5 involves a challenge to the judge’s award of $50,000 for loss of consortium on the basis that it was unreasonably high. 220 There is no dispute that Ms Lewis was entitled to damages for her loss of consortium pursuant to s 65 of the CLA. There is also no dispute as to the basis for that award.183 The award for loss of consortium was intended to compensate Ms Lewis for the loss or impairment of her husband’s comfort, society, fellowship and companionship as a result of his negligently inflicted injuries. It was intended to reflect the detrimental effect upon all aspects of their relationship, including their sexual relationship, as a result of those injuries. It was also intended to reflect the impairment of her husband’s ability to provide the support, assistance and services previously provided to her in the context of their relationship. 221 The judge dealt only briefly with this aspect of the case. He reasoned as follows: [375] I turn to the claim of the second applicant. She makes a claim for loss of consortium. I accept that prior to the accident, the two applicants had a happy, intimate and prosperous lifestyle. They enjoyed outdoor activities, they socialised as a family, they were able to overcome significant issues arising out of the death of the applicant’s brothers, they were planning for the future, and they had committed themselves to a plan in relation to the future. They were sharing their lives with all of the ups and downs that such a decision brings. They were together in the fullest 183 Toohey v Hollier (1955) 92 CLR 618 at 627-628 (the Court). -- 56 of 58 -- [2025] SASCA 120 S Doyle JA 53 sense of that word; they were in a loving relationship of mutuality including in relation to their physical relationship. [376] The contrast to the present position could not be more stark. They occupy a large house; they occupy separate parts of the large house, and the relationship is strained. In making my assessment, I have had regard to the relevant authorities, as summarised in the decision of Judge Clayton in Elliot and Anor v Andrew.184 I have taken all of those matters into account. I would allow $50,000 to the second applicant on her claim for loss of consortium. I will hear submissions in relation to the apportionment of that sum between past and future. 222 The appellant does not cavil with the judge’s summary of the relevant considerations, or his articulation of the comparison between the state of the respondents’ relationship before and after the accident. Nor is there any dispute as to the principles governing a claim for loss of consortium. The appellant’s only contention is that the award was, nevertheless, too high. 223 The appellant acknowledges that there have been some materially higher awards for loss of consortium in this State, but points out that they have generally been in cases involving very serious or catastrophic injury, such as quadriplegia or paraplegia. On the other hand, awards in this State have generally been materially lower, even in real dollar terms. 224 There is little to be gained by reviewing individual cases. It is sufficient to observe that, in my view, a general survey of the authorities suggests that the figure awarded by the judge was unreasonably high. There is no doubt that Mr Pastuch’s physical and psychological injuries have had a significant impact upon his relationship with Ms Lewis. However, I am not satisfied that Mr Pastuch’s injuries and the consequential deterioration in his ability to contribute to that relationship, justified an award in the order made. 225 I would allow the appeal on Ground 5, set aside the award made by the judge, and award damages for the loss of consortium in the amount of $30,000. Conclusion 226 For the reasons set out, I consider that each of the appellant’s grounds of appeal have been made out. I would allow the appeal, set aside the judgments in favour of Mr Pastuch and Ms Lewis, and substitute judgments reflecting reduced awards for Mr Pastuch’s economic loss (past and future) and future care (commercial services), and for Ms Lewis’ loss of consortium. 227 In the case of Mr Pastuch, I would enter judgment reflecting the following (with adjusted figures underlined): Past losses Non-economic loss $17,850 184 [2009] SADC 31. -- 57 of 58 -- [2025] SASCA 120 S Doyle JA 54 Past economic loss (including past loss of superannuation benefits ($19,087), but less a reduction of 20% pursuant to s 56A(5) of the CLA) $196,140 Past medical expenses and special damages $29,030 Total amount for past losses $243,020 Future losses Future economic loss (including for future superannuation losses, but less reductions for future earnings ($150,000), a reduction of 15% for contingencies and 20% under s 56A(5) of the CLA) $420,913 Wilson v McLeay damages $1,000 Gratuitous services (past) $16,172 Commercial services (future) $25,000 Future medical expenses $25,000 Spargo v Greatorex damages $30,000 Total amount for future losses $518,085 Total amount of past and future losses $761,105 After 25% reduction (s 49(3) of the CLA) $570,828 228 In the case of Ms Lewis, I would enter judgment reflecting an award for loss of consortium of $22,500, being $30,000 less a reduction of 25 per cent under s 49(3) of the CLA. 229 I would hear the parties in relation to the issues of interest and costs. 230 BLEBY JA: I agree with S Doyle JA’s proposed disposition of the appeal, and with his reasons. -- 58 of 58 --