Geoffrey Weinman v Beverley Joan Botten Sca [1991] ACTSC 32; (1991) 104 FLR 146 (1 May 1991)

SUPREME COURT OF THE ACT

GEOFFREY WEINMAN v. BEVERLEY JOAN BOTTEN
S.C.A. No. 233 of 1990
S.C. No. 1054 of 1980
Damages - Measure of Damages (Tort)
[1991] ACTSC 32; (1991) 104 FLR 146

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1), Gallop(2) and Jenkinson(1) JJ.

CATCHWORDS

Damages - action for negligence - whiplash injury - causation - lumbar sacral spine symptoms - sciatica - whether caused by injury sued on - no point of principle.

Measure of Damages (Tort) - Personal injuries - cervical spine injury - lumbar sacral spine injury - sciatica - appeal on ground of excessive damages - loss of earnings and income capacity - domestic assistance - pain and suffering - assessment of loss of future earning capacity to take into account a pre-existing degenerative spinal condition - lack of proof of loss of superannuation benefits.

Introvigne v. Commonwealth of Australia and Others [1980] FCA 107; (1980) 32 ALR 251

Griffiths v. Kerkemeyer [1977] HCA 45; (1976-77) 139 CLR 161

Malec v. J.C. Hutton Pty. Ltd. (1990) 92 ALR 545

HEARING

CANBERRA
1:5:1991

Counsel for the Appellant: Mr J. Hartigan

Solicitors for the Appellant: Crossin Power Haslem

Counsel for the Respondent: Mr Toomey, QC with Mr G. Stretton

Solicitors for the Respondent: Elrington Boardman Allport

ORDER

1. The Court orders that the appeal be allowed.

2. The judgment of the Master of 1 June 1990 be set aside and in lieu thereof there be judgment in the sum of $269,183.17.

3. The plaintiff and defendant each bear their own costs.

DECISION

This is an appeal by the defendant against an award of damages by the Master for personal injuries sustained by the plaintiff. It is convenient to continue to refer to the parties as the plaintiff and the defendant.

2. The statutory provisions relating to an appeal from the Master to a Bench of three Judges of this Court are similar to the statutory provisions relating to appeals from this Court to a Full Court of the Federal Court of Australia. Sub-s.8AAA(3) of the ACT Supreme Court Act 1933 provides that on such an appeal the Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact. Under sub-s.8AAA(4) the Court may affirm, vary or set aside the judgment of the Master and make such order as in all the circumstances it considers just.

3. The principles to be applied to an appeal against an award of damages by a judge sitting without a jury are well established. They were summarised in a judgment of a Full Court of this Court in Introvigne v. Commonwealth of Australia and Others [1980] FCA 107; (1980) 32 ALR 251 in the following passage at pp 277-278:
"The exercise of discretion by the learned trial

judge in assessing damages ought not to be interfered with
by this court on appeal unless it is clear that he has
adopted an erroneous approach to the assessment of damages
or unless the assessment is itself so demonstrably
disproportionate to the injuries received that error is
clear. A mere difference of opinion as to what ought to
have been the proper award of damages does not establish
that the trial judge erred: see Sharman v. Evans [1977] HCA 8; (1977) 138
CLR 563; 13 ALR 57."

4. The Master's award of damages was made up of the following components:

General damages $ 85,000.00
Out-of-pocket expenses $ 7,641.80
Loss of wages $ 40,000.00
Fox v. Wood $ 6,905.37
Future wage loss $110,000.00
Griffiths v. Kerkemeyer $ 39,636.00
Loss of superannuation $ 55,557.00
Total: $344,740.17

5. The appeal is directed against the Master's finding that the plaintiff suffered lumbar spine injury in the subject collision and against the awards for past and future economic loss, loss of superannuation benefits, domestic assistance (Griffiths v. Kerkemeyer [1977] HCA 45; (1976-77) 139 CLR 161) and pain and suffering.

6. The plaintiff was injured on 28 April 1977 when the vehicle she was driving was struck by the vehicle being driven by the defendant. Liability is not in issue nor the effect of the collision on the plaintiff's cervical spine. The plaintiff suffered whiplash type injury which gave rise to immediate symptoms in the cervical spine and eventually led to a Cloward's procedure operation on 19 June 1980 by Dr Alastair Robson, a neurosurgeon. The operation was considered to be a success and by 28 September 1981 Dr Robson reported that the plaintiff considered herself "one hundred percent fit", despite some continuing problems in the meantime. It is not disputed that the plaintiff is entitled to be compensated for the injury to her cervical spine.

7. The plaintiff's case, however, was that her injury was not limited to the cervical spine and from the time of the injury on 28 April 1977 onwards she has suffered from lumbar symptoms as well as the initially more acute symptoms in the cervical area. She claimed that those lumbar symptoms continued at a mild level until July 1982 when her condition was exacerbated by the lifting of an aluminium chair in Hawaii whilst on holiday. She claimed that she suffered increasingly severe symptoms in the lumbar spine thereafter, together with sciatica in the left leg. She underwent a decompressive laminectomy at the L5-S1 level on 26 August 1983, necessitating absence for about three months from her duties in the Commonwealth Public Service as a clerical assistant.

8. In February 1986 there was a further incident when the plaintiff attempted to move a trolley with her right hand from a seated position. Her condition grew worse and following a CT scan which showed a large disc protrusion at the L5-S1 level (the site of the previous operation), she underwent a further laminectomy at that site on 10 November 1986. The plaintiff remained off work until August 1987. She returned to light duties only for four hours a day. This she attempted for about a month, but her condition was such that she went off work again in September 1987 on compensation. In June 1988 she took long service leave then further leave until all her leave entitlements were exhausted. She then resigned from the Public Service on 13 January 1989 by reason of incapacity arising from her lumbar condition.

9. In his reasons for judgment, the Master dealt in detail with the central issue in the case, namely whether the plaintiff had proved on the balance of probabilities that the disc pathology in the lumbar sacral area was caused by the injury on 28 April 1977. The defendant relied heavily on medical evidence which indicated that the plaintiff had a deteriorating spinal condition in any event and that there was a significant history of lack of complaint of lower back symptoms between the date of the injury and 2 November 1977, and between December 1977 and July 1982. The defendant also relied upon a further absence of symptoms between July 1982 and February 1986. The defendant submitted that the incidents in July 1982 and February 1986 were the true causes of the plaintiff's condition following each of those events.

10. The Master correctly recognized that, although he found the plaintiff to be a witness of truth as far as her recollection permitted, there was a danger of her imagination operating upon her memory, particularly where there was an appreciable lapse of time between her complaints to the doctors and her history to the doctors of the onset of symptoms.

11. Counsel for the defendant stressed the lack of any mention of lower back pain to the plaintiff's general practitioner, Dr Katekar, until 2 November 1977 when she told Dr Katekar that the pain in the lumbar area had been present for about a month prior to the consultation. The complaint at that stage was sufficiently serious for Dr Katekar to cause x-rays to be taken of the lumbar spine. These showed no abnormality. The plaintiff repeated her complaints on 5 December 1977. Between then and the Honolulu incident in July 1982, the plaintiff saw Dr Katekar eleven times and never complained about any low back pain or sciatica on any of those occasions. She also saw Dr Kitchin in July 1977 and Dr Robson on several occasions in 1980 prior to the Cloward's procedure operation. On none of those occasions was there any complaint of low back pain or sciatic pain. However, she did tell Dr Robson on 29 February 1980 that there had been occasions when her right leg had given way and she had fallen over, but the problem seemed to have gone away. Nevertheless Dr Robson concentrated on the complaints relating to the cervical area. The myelogram he caused to be taken on 19 March 1980 disclosed obvious disc trouble at L5-6 and L6-7 with "a normal looking lumbar canal". Dr Corry, a specialist in rehabilitation medicine, who examined the plaintiff on behalf of the defendant in March 1981 received no complaints or history of low back pain or sciatica at that stage.

12. Mr McDowall, a chiropractor, treated the plaintiff between August 1978 and September 1979, when the neck was the main problem and when he had no cause to give any attention to the lumbar-sacral area.

13. When the plaintiff returned to work in September 1980 after the neck operation by Dr Robson in June of that year, she took a new position as a home science assistant. She found the work there too heavy and she returned to her previous position as clerical assistant. She does not appear to have sought medical attention again until she consulted Dr Katekar on 23 March 1981 for neck and thoracic pain.

14. The plaintiff's solicitors referred her to Dr Ferguson, whom the Master described as a general practitioner. The history Dr Ferguson obtained on 17 May 1978 was not confined to the cervical area. The plaintiff told Dr Ferguson of continuing dorsal and lumbar pain commencing the evening of the accident. On examination Dr Ferguson found restriction of extension of the spine, with some slight limitation of other movements of the back, together with moderate tenderness of the lower lumbar spine.

15. Apart from the consultation with Dr Ferguson, there is nothing in the plaintiff's medical history between the end of 1977 and July 1982 to indicate any complaint by her to any doctor relating to lumbar symptoms or sciatica. Counsel for the defendant lays emphasis on the fact that immediately prior to the July 1982 incident the plaintiff had completed a three thousand mile journey by car in the United States.

16. Upon her return to Australia the plaintiff consulted Dr Katekar on 7 July 1982 with complaint of lumbar pain during the previous five days following the lifting of the chair. The plaintiff consulted Dr Katekar on four further occasions in 1982 with similar complaints, including complaints of pain in the left buttock and left sciatica. She was referred to Dr Chandran in August 1983 and did not give him any specific history of back pain following the 1977 injury, but she did complain of symptoms in the back and left leg over the previous few years. Dr Chandran concluded at that stage that the symptoms in the lumbar area and leg were not related to the 1977 injury and he noted that "Mrs. Botten claimed that her symptoms in the back and leg came on while she was on holiday in 1982 and that she did not have any symptoms in the back and leg following the accident in 1977".

17. The plaintiff was referred to Dr Corry on 19 November 1982. He noted complaints of recently developed acute sciatica in the left leg which he thought unlikely to be related to the 1977 injury. However, he also noted that "on specific questioning" the plaintiff said that she continued to get occasional low back pain since the time of the injury which came and went and was not brought on by any particular activity.

18. Dr Katekar referred the plaintiff to Dr Stubbs, an orthopaedic surgeon, on 21 December 1982. The plaintiff gave Dr Stubbs a history of back pain since the accident, generally fairly mild, principally a lumbar backache made worse by such activities as gardening and vacuuming and only recently associated with left leg pain. Dr Stubbs also noted that the plaintiff told him that although in general the symptoms were fairly mild until July 1982, the pain had been bad enough for her to engage a housekeeper and to have chiropractic treatment in 1977 to 1979.

19. On 5 October 1984 Dr Chandran reported to the Delegate of the Commissioner for Employees' Compensation that "as to the causation of the initial back pain, Mrs. Botten claimed that her symptoms started following the motor vehicle accident in 1977". It may be observed that Dr Chandran's account of what the plaintiff "claimed" by this time was radically different from the position when he had reported to the plaintiff's solicitors on 6 July 1984 that the plaintiff "claimed" that she had no symptoms in the back and leg following the 1977 injury. Dr Chandran continued in his report of 5 October 1984:

"However, if it can be clearly substantiated from
earlier medical records that she did have symptoms from the
beginning, then her current symptoms may be attributed to
the accident of 1977."

20. Although the plaintiff's solicitors supplied Dr Chandran with copies of reports from Doctors Katekar and Ferguson, indicating as they did complaints of a lumbar condition in late 1977 and early 1978, Dr Chandran replied that there was insufficient indication of continuing symptoms in the spinal area between 1978 and 1982 to be able to give a firm opinion. Doctors Corry and Stubbs expressed a similar view that because of a lack of significance in the symptoms in relation to sciatica or low back pain or both between the end of 1977 and July 1982, it was unlikely that the 1977 incident was responsible for any lower back condition or sciatica after the July 1982 incident.

21. In his report of 18 July 1985, Dr Corry remarked on the lack of complaints of low back problem when first seen on 6 March 1981, with some general history at the later examination of November 1982 of low back pain following the 1977 injury which was not severe, sporadic and not causing any restrictions, and no "relevant" disability until the development of acute left sided sciatica following the incident in 1982. Consequently, Dr Corry concluded that there must be considerable doubt as to the relationship between the disability and the injury. He remarked that the plaintiff "is in the age group when lumbar disc degeneration is likely to develop as part of the general aging process and minor lifting or bending stresses can precipitate acute disc herniation".

22. Dr Stubbs' opinion expressed in his report following consultation on 21 December 1982 was that it was unlikely that the intravertebral disc degeneration, although the cause of the symptoms, was entirely due to the motor vehicle accident, but probable that there was some acceleration of that condition as a result of the accident.

23. It is understandable that these doctors considered the possible connection between the plaintiff's continuing lumbar symptoms and sciatica and the 1977 injury as doubtful. Whilst it may be that from a medical point of view Dr Chandran was well justified in declining to come to any positive conclusion about the causal relationship until it could be substantiated from medical records, the question which the Master had to determine and which the Court has to determine on appeal, is quite different. The question for the Court is whether the plaintiff has established her case on the whole of the evidence to the requisite standard of proof, that is on the balance of probabilities. There is no dispute that the plaintiff suffered whiplash type injury to her cervical spine which led to operative treatment some three years later. During that time the medical attention was understandably directed towards alleviation of her symptoms in the cervical area. Not until after the July 1982 incident were the doctors asked to direct their attention to the possible connection between lumbar pain and sciatica and the 1977 injury. At that stage Dr Corry, who had in March 1981 not received any history of anything but cervical problems, noted that "on specific questioning" the plaintiff spoke of continuous but occasional low back pain since the time of the 1977 injury. In his report of 5 October 1984 Dr Chandran stated that the plaintiff "claimed" that low back symptoms followed the accident in 1977.

24. Furthermore, whilst it is true that there is a considerable gap in time between the examination by Dr Ferguson in May 1978 and the acute sciatica in July 1982, the fact remains that the plaintiff gave to Dr Ferguson a consistent history and made precise complaints of lumbar symptoms and lumbar based disability. In the light of that history and those complaints and upon examination, Dr Ferguson's clinical findings were that the plaintiff's condition was one of lumbar intravertebral disc injury evidenced by "persistent low back pain, tenderness and restricted back movements, with minimal radiological abnormality in the form of slight scoliosis". As it turned out, this diagnosis was the same diagnosis as that later pronounced in 1983, and repeated in 1986, when the plaintiff was again subjected to operative treatment at the lumbar sacral level. The Master had the advantage of seeing Dr Ferguson give evidence. The Master took the view that the history obtained by Dr Ferguson and his diagnosis was consistent with the history given by the plaintiff in her evidence, which the Master accepted after approaching it with the caution he considered it deserved.

25. In her evidence, the plaintiff said that immediately after her injury she felt "a burning sensation in the back of the head and the neck and down the spine" and that by the time she saw Dr Katekar the following day, she was suffering from severe headache at the back of the head and at the top of the neck and in the shoulders. She said that she also had backache but it was "mild compared to the neck". She said that the lower back condition got worse from then until the time she saw Dr Ferguson, but the neck area was "still a very bad problem". When asked about the course of the condition, she replied, "I had a lot of trouble before '82, but I did not pursue it I think because I had been to a couple of doctors and they said that it will get right, and I was put off by a few doctors, Kitchin, Stubbs. They said it would be fine. But there was many a time I would be walking around at the shops and I would fall over. My leg would give way completely".

26. She said that she had sciatic pains from the time of the accident until November when it developed to a stage that she asked Dr Katekar about it. She said that the sciatic pain was relieved after the first lumbar operation in 1982, but it left a pain in the lower back which was not severe but was "niggly and persistent". She spoke of a specific occasion at her daughter's wedding in 1981 when she was limping with back pain.

27. The plaintiff's husband also gave evidence that the plaintiff was complaining of back pain within a few days of the 1977 injury and that she continued to complain at various times from then until the July 1982 incident of aching in the back.

28. In the light of that evidence, we consider that it was open to the Master to find that the continuity of symptoms between the time of injury and July 1982 was such that the causal relationship between the symptoms and the injury had been established on the balance of probabilities. We would not interfere with that finding.

29. The next question is whether the incident in July 1982 was an intervening cause which broke the chain of causation. On this precise question, the weight of medical evidence supports the conclusion that if there were a continuity of symptoms until then, then the causal relationship would have continued beyond July 1982. There is a precise medical opinion on this particular point from Dr Howes, a specialist in rehabilitation medicine.

30. Dr Howes expressed himself as follows in his report of 22 October 1987:

"It would appear that this lady has had a disc
injury to her lumbar spine and her symptoms date from the
time of her accident. It would appear that there was an
initial disc injury and then a slow protrusion of the
nucleus pulposus producing sciatica. This eventually was
proved at operation when her lumbar spine was decompressed.
Since then, there has been a recurrence of further protrustion
of nuclear substance which resulted in the second operation."

31. Dr Howes concluded as follows:

"It is my opinion that there is a definite link
between the function of various parts of the spine and it is
quite common to see cervical pain following lumbar problems
particularly if there is limitation of movement in one area
and the reverse happens as well. However, in Mrs. Botten's
case it would appear that there was direct injury to both
areas. I have not been able to see the x-rays that were
taken of Mrs. Botten in 1977. I believe that these have
been held by Dr Robson. The recent scans have shown the
effects of the surgery and shows the obvious protrusion of
disc material. There is very little degenerative joint
disease present in the plain x-rays that were taken at about
the same period. In view of the fact that Mrs. Botten did
not have any back pain up until the time of the accident, it
is highly unlikely that one could attribute her present
problems to pre-existing degenerative changes."

32. Dr Howes adhered to that view when he gave evidence.

33. The Master concluded that the absence of complaints to doctors in the early period relating to the lumbar condition did not cause him to doubt the plaintiff's sworn evidence about those matters. The Master thought that there was low back pain in the initial period, masked by the neck pain, but consistently present and aggravated by various activities. The Master also noted that over the period of about two years following the neck operation, that is from July 1980 to July 1982, the plaintiff was off work and received compensation on about eight occasions for periods of a total of about twelve months. As the medical evidence seemed to be all one way that during that period the neck had ceased to be disabling, the Master drew the conclusion that it was likely that it was the back condition or the sciatica which was responsible for the disability.

34. The Master found that the most likely hypothesis was that postulated by the evidence of Dr Howes, namely, that the lumbar sacral disc was damaged in the accident and that there followed a slow protrusion of the nucleus which needed only the combination of twisting and lifting such as the Honolulu incident to trigger off the impinging of the protrusion on the sciatic nerve, making the symptoms immediately more severe and disabling.

35. As we have already said, it was open to the Master to accept the plaintiff's evidence on this aspect, and he was in a better position than we are to assess its worth. Once the Master accepted the genuineness of the plaintiff's evidence, then he was entitled, particularly in the light of Dr Howes' opinion, to conclude that it was more likely than not that the plaintiff's lumbar condition and sciatica from the time of injury until the present time has been causally related to the injury and that the plaintiff is entitled to be compensated accordingly.

36. We turn now to the appeal as it relates to the quantum of damages.

37. The plaintiff was born on 3 March 1939. She was 38 years old at the time of her injury and 51 at the time of hearing before the Master on 1 and 2 May 1990. After leaving school in Canberra she worked for a few years as a clerical assistant in the Public Service. She married in 1958 and continued in domestic work until she returned to the Public Service again as a clerical assistant in September 1975. She was working in that capacity at the time of her injury.

38. The award of $344,740.17 is on the face of it a very high one for an injury of moderate severity which resulted in a loss of time from work initially of only four months and in the two and a half years following of what the Master described as "two short periods off work". However, the Master found that during the whole of that period the plaintiff suffered from constant and severe pain, a finding which we would not disturb. There is no dispute that the defendant is responsible for the need for the plaintiff to undergo a myelogram and operative surgery in 1980. Thereafter the cervical pain eased, but the lumbar pain was aggravated by activity from time to time until the acute episodes in July 1982 and February 1986. The plaintiff submitted to major spinal surgery in August 1983, putting her off work for three months, and further major surgery in November 1986. The last operation put her off work altogether until August 1987 after which she worked at light duties for only a month, since when she has not worked at all. Dr Katekar regarded the plaintiff as permanently unfit for all duties including clerical duties from December 1987. Dr Corry's prognosis on 8 September 1988 was guarded. He thought that the plaintiff was over-protective and that she would be fit to return to clerical duties if reintroduced gradually to such duties. Dr Chandran did not see the plaintiff after May 1987 when he advised her to consider returning to work part-time.

39. It was submitted on behalf of the defendant on the appeal that the plaintiff could have continued in the Public Service as a clerical assistant until and unless she was compulsorily retired. On the other hand, the advice of Dr Howes to the Commonwealth Medical Officer in June 1988 was that the plaintiff could continue in part-time sedentary employment with the opportunity to change posture frequently and with the assistance of an ergonomic chair. The plaintiff said in her evidence that an ergonomic chair was never supplied, so that in January 1989 when all her leave had expired, she decided not to resume duties and formally resigned. It was submitted on behalf of the defendant that the plaintiff's choice was one of convenience rather than one dictated by total incapacity. However, looking at the matter broadly, we think that although there was a possibility that with sympathetic assistance from her employer the plaintiff might have got back to some part-time sedentary work, that was a possibility only. For practical purposes her income-earning capacity was, on the probabilities, destroyed.

40. For past loss of earning capacity the Master took as a basis the figure of $45,091.11, which he said was the agreed total loss of earnings in accordance with his findings for all time lost from work due to the neck and back symptoms and sciatica. The Master discounted that figure to $40,000.00 on the ground that "she might have had some time off work from accident or from choice over a period of thirteen years". This award was the subject of criticism in the appeal to the effect that the difference between what she received and what she would have received if uninjured was only $690.28. However, it appears that that figure is the difference as at 19 August 1987 and does not take into account the plaintiff's loss from then until the date of hearing. The exact basis for the Master's statement that the figure of $45,091.11 was agreed is not clear, but it has not, in our view, been shown to be incorrect and the discount was adequate.

41. For the future the Master took as a starting point the likelihood that but for injury the plaintiff would have worked until age 60. We would not depart from that starting point. The Master then took an agreed net weekly figure of $335.22 at the date of hearing. The Master converted that periodic loss to a capital sum of $134,920.00 (presumably by application of a discount interest rate of 3 percent) and reduced that sum to $110,000.00 for what he called "at least the normal contingencies". Insofar as the reduction represents about 18 percent of the capital sum, it is somewhat more than the 15 percent which is the conventional figure for discounting for normal contingencies. The Master did not consider whether there was a need to further reduce the capital figure by reason of the possibility of a degenerative condition in the plaintiff's spine which might have rendered her incapable of work either partially or totally in any event and without the injury of April 1977. There was a view expressed by Dr Howes in his report of 22 October 1987 that because the x-rays of 2 November 1977 showed very little degenerative joint disease and because the plaintiff experienced no back pain prior to the accident, then it was "highly unlikely" that her problems could be attributed to pre-existing degenerative changes. It may be noted also that the myelogram of 19 March 1980 showed "a normal looking lumbar canal". However, Dr Howes's opinion and the absence of radiological evidence of degenerative change pre-existing the 1977 injury, does not touch directly on the question of whether the plaintiff's lumbar condition might have incapacitated her at some time after the effects of the injury to the cervical spine would have been eliminated.

42. On the other hand, Dr Corry considered that the plaintiff was suffering from a degenerative condition in the lumbar region by 1986 and that degenerative condition was one of the factors contributing to the plaintiff's disability. Dr Chandran, who had the advantage of findings on operation on two occasions, was of the firm opinion that the L4-L5 disc was in a degenerative state by 1983 and probably before the 1982 acute episode. Dr Stubbs expressed a similar view.

43. In an exchange with counsel the Master referred to the "basic problem" whether the 1982 incident occurred in combination with a purely degenerative change or whether injury occurred in the 1977 accident to an already degenerative spine. The Master's reasons for judgment did not resolve that problem because it appears that he accepted as the most likely hypothesis that of Dr Howes on the question of causation, in which degeneration played no part at all. However, Dr Howes's view as to causation was not inconsistent with a degenerative conditon in the spine at the time of injury, followed by the consequences described by Dr Howes of a slowly protruding nucleus finally impinging on to the sciatic nerve in the 1982 incident. In our view, Doctors Chandran, Corry and Stubbs are more likely to be correct in their view that at some stage, by 1982 at least, there was degeneration in the plaintiff's lumbar spine. The plaintiff cannot exclude the contingency that such a degenerative condition might have rendered her incapable of work at some stage before or after the hearing, and some deduction for that contingency must be made: see Malec v. J.C. Hutton Pty. Ltd. (1990) 92 ALR 545. Doing the best we can on the material before us, we would reduce the award for loss of future earning capacity by a further factor of just under one fifth to $90,000.

44. The Master awarded $55,557.00 for loss of superannuation benefits occasioned by the plaintiff's retirement from the Public Service. It is agreed that the Master's approach was mathematically inappropriate and that on the assumption that the plaintiff is entitled to an award under this head of damages, the figure should be $2,100 less than that awarded. As the Master observed, the only evidence on this aspect was that the plaintiff had joined the Commonwealth Superannuation Scheme (there is no finding as to the date and we were not asked to make one) and was issued with a benefit classification certificate specifying obesity and whiplash injury. This apparently meant that at the time of joining the scheme the plaintiff was already suffering from obesity and the effect of whiplash injury, so that if she was later forced to retire because of one or other of those conditions, the Commonwealth would not accept responsibility therefor. There being no evidence of any whiplash injury other than that sustained in the accident in April 1977, this must have been considered by the Commonwealth as still productive of disability or symptoms as at the time of the plaintiff joining the scheme. In any event, it seems that if the plaintiff were to be retired for obesity or symptoms resulting from whiplash injury, then she would not be entitled to any superannuation benefits, or would not be entitled to full superannuation benefits, under the scheme. Neither counsel took us through the provisions of the Superannuation Act or such evidence as there was relating to the administration of the scheme. The Commonwealth wrote to the plaintiff's solicitors on 28 July 1988. The letter includes the following passage relating to the benefit classification certificate:

"The BCC will not affect Mrs. Botten's
superannuation benefits under the following circumstances:
a) voluntary age retirement;
b) invalidity retirement with 20 or more years'
contributory service;
c) invalidity retirement for reasons not
connected with the condition specified on the BCC.
Mrs. Botten's benefits will be adjusted if she
retires on invalidity grounds by reason of or for a reason
connected with the conditions mentioned above."

45. A payment of $14,443.14 was made to the plaintiff after her retirement by the Commissioner for Superannuation. That sum would appear to be a refund of the plaintiff's superannuation contribution together with interest less tax. We are, on this state of the evidence, not convinced that the plaintiff has shown that she has lost superannuation benefits or pension rights to which she would have been entitled had she not been injured. It is not clear to us that the Commonwealth has declined to pay her a pension in addition to the refund of her contributions with interest or that if the Commonwealth has declined to do so, that she would be unsuccessful in pursuing her rights to such a pension. Furthermore, if the plaintiff has lost such a right it would appear to be as a result of her decision to retire from the Public Service. Whilst we do not think that the plaintiff acted unreasonably in refraining to perform her duties any further, we do not see why it was necessary for her to take the step of resigning without awaiting the decision of the Commonwealth whether or not to retire her for invalidity. It is not that we are of the opinion that the plaintiff has failed to mitigate her damage, it is simply that the alleged loss of pension rights is so attended with uncertainty that we do not find it proved on the balance of probabilities. The Master was in no better position than we are to decide this aspect of the plaintiff's claim. It follows that the defendant succeeds on this aspect of the appeal.

46. In relation to the appeal against the award for domestic assistance in accordance with Griffiths v. Kerkemeyer, there was evidence that the plaintiff had employed a housekeeper after her operation in 1980. The evidence about this was not clear but the Master was entitled to accept it, and on that basis alone it was appropriate that the damages include a sum for the cost of domestic assistance. The Master took the broad view that if assistance from the plaintiff's husband and her children had not been available, the plaintiff would have continued to employ help at least to the extent and at the rates claimed and that it would have been reasonable for her to do so. That yielded $12,636 for the past on the basis of $10 per week for 5 years after the accident and thereafter to the date of hearing 2.5 hours per week at $9.65 per hour. For the future the Master awarded a round sum of $27,000 based on the period of twenty years. Although the Master did not explicitly discount the figure for the future to allow for the plaintiff's pre-existing degenerative condition, he said that there would be a "substantial discount" to take into account "her actual physical condition" in the light of a life expectancy of 30 years. Once it was accepted that the employment of a housekeeper at some time in the past justified an award for past domestic assistance, it was open to the Master to approach the assessment of cost of both past and future domestic assistance as he did and we would not adjust the sum awarded. In reaching that conclusion we do not differ from the statement of principle set out in the judgment of Gallop J., a draft copy of which we have read.

47. Lastly, it was put that the award of $85,000 for suffering and loss of enjoyment of life was simply too high. It certainly appears high for a person aged 51 at the date of trial who had sustained what initially appeared to be an injury of moderate degree. However, the injury turned out to have serious consequences which substantially affected the course of the plaintiff's life. This aspect of the award was one calling for the exercise of a discretionary judgment. The discretion has not been shown to have been exercised in error. We would not set aside the Master's award in this respect.

48. The outcome of the appeal is that the plaintiff's damages are reduced by $20,000 to $90.000 for future loss of earning capacity and by eliminating the award of $55,557 for loss of superannuation rights. That results in an overall award of damages of $269,183.17. When viewed globally we consider that to be a proper sum to compensate the plaintiff for her injuries.

49. The appeal should be allowed, the judgment of the Master of 1 June 1990 set aside and in lieu thereof the plaintiff should have judgment for the sum of $269,183.17. Most of the time taken for the hearing of the appeal was directed to the question of the relationship between the motor vehicle collision and the plaintiff's lumbar condition. On that issue the plaintiff has been successful. In the circumstances we think it appropriate that the plaintiff and defendant should each bear their own costs.

I have had the benefit of reading the reasons for judgment of Miles C.J. I agree with his reasons in relation to each of the provisional assessments of damages made by the Master except the assessment in relation to the claim for domestic services pursuant to the decision in Griffiths v. Kerkemeyer [1977] HCA 45; (1977-78) 139 CLR 161.

2. The Master allowed the sum of $12,636 for gratuitous provision of domestic services up to the date of judgment and a further sum of $27,000 to cover the next 20 years. The plaintiff did in fact employ a housekeeper after the accident in 1977 but the evidence before the Master about the period for which she was employed was vague. The Master's impression on the evidence was that the housekeeper was not employed until after the plaintiff returned to work in August 1977 and that she was employed for about two years. He was satisfied that if the services in fact provided by her husband and children had not been available she would have employed help in the home, at least to the extent and at the rates claimed, and that it would have been reasonable for her to do so.

3. The rate charged by the housekeeper was $10 per week and that figure was allowed from the date of accident "for about five years", and thereafter to the date of hearing at a rate of $9.65 per hour for 2.5 hours per week which yielded the result of $12,636.

4. The claim for the future was based upon 2.5 hours per week at $13.80 per hour yielding a figure of $27,000, hence a total for the claim for gratuitous domestic services at $39,636.

5. It is necessary to bear in mind the Master's findings of fact in order to measure the reasonableness of the claim for domestic assistance. In assessing general damages, the most significant elements of the plaintiff's claim were detailed by the Master. He said:

"The accident itself was not particularly severe and she
did not lose consciousness. The neck pain began very
soon afterwards and was severe. It prevented her from
working for four months initially. She had difficulty
doing household tasks, and needed help both from her
family and a paid housekeeper. For two and one half
years after returning to work she continued to suffer
constant neck pain, thought (sic) it necessitated only
two short periods off work. She underwent the
discomfort of a myelogram and significant surgery in
June 1980 when the neck was stabilised. After the
process of recovering from that operation the neck
ceased to be disabling though not entirely fee from discomfort.
The back pain was present from the beginning, masked at
first by the neck pain and aggravated from time to time
by various activities. It became acute in July 1982
subsiding over the next six months and flaring up in May
1983. She underwent the severe discomfort of a
radiculogram and then the major surgery of a laminectomy
in August 1983. She was off work for three months.
Over the next fourteen months she was able to work
although with some pain.
In February 1986 the back pain and sciatica was again
made acute by the simple task of moving a wheeled
trolley. She tried to continue work but took all her
recreational leave in May 1986 to get extended bed rest.
She again underwent major surgery in November 1986.
After that operation she was off work completely until
August 1987. She was then assessed as being capable of
light duties for four hours a day which she attempted
for about a month. She was not able to continue and
after a period from September 1987 to June 1988 on
compensation, and then on long service leave, she
resigned from the Public Service on 13 January 1989.
Dr Howes in October 1987 assessed her as being unlikely
to ever get any permanent relief from her lower lumbar
back pain, and as not being fit enough to undertake
sedentary employment. He was of the same view in March
this year. So was Dr Katekar.
Dr Corry's view in September 1988 was that she was
capable of returning to clerical duties, though a
graduated return would be necessary. She did not want
to take the risks that she perceived to be associated
with such a programme. In the light of her experiences
I think her decision to resign was reasonable in the
circumstances.
She is 51 years of age and will probably suffer pain and
discomfort in her back for the rest of her life.
She had some sporting interests which have been denied
her since the accident and which she will never be able
to resume.
For her pain and suffering and loss of the amenities of
life I would award her the sum of $85,000."

6. The plaintiff has had three daughters and a son. They had all left home at the date of trial, the last one having left in 1985. Prior to the accident the children helped out with a lot of the housework over the years. After the accident in 1977 the girls would help with the housework, especially the cooking and other household chores while the plaintiff was at work. The plaintiff's husband did not really perform household chores before the accident.

7. It is clear from the plaintiff's evidence that she employed the housekeeper after the accident in 1977 for a couple of years at $10 per week. She thought that period of two years was after she had the neck operation in 1980 and went back to work in 1981. When she went back to work she did not pay anybody. Her husband did a lot of the work and her grown up daughters shared in it. The chores included vacuuming, cleaning the bathroom and toilet and washing floors. Asked whether she was able to do those chores herself, she said she could do them with great difficulty but that she does them. She changed that immediately after in her evidence and said that she chooses not to do those chores because she gets bad cramping at night and bad pain.

8. In my opinion that is a very flimsy body of evidence upon which to make such a generous award of damages for gratuitous domestic assistance.

9. Griffiths v. Kerkemeyer was a case where a person had been permanently disabled as a result of the negligent act of another and was awarded damages which included a sum representing the value of services rendered and to be provided for him by his fiancee and members of his family. The services had been provided for him gratuitously. Gibbs J. (as he then was) referred at p 163 to the circumstance that it is common in cases where a plaintiff has been injured for some member of his family or a devoted friend to perform for him services that have been rendered necessary by his injuries. The services he referred to were hospital and nursing services and services of a domestic nature in cases where the relative or friend does housework that the injured plaintiff is unable to do. After discussing English and Australian cases, his Honour said at p 168:

"However in my opinion this Court should not abandon the
principle that a plaintiff whose injuries have created a
need for hospital or nursing services cannot recover
damages in respect of that need (except of course for
loss of amenities or pain and suffering) unless the
satisfaction of the need is or may be productive of
financial loss. However it should not longer be held
that the fact that the services have been and will be
provided gratuitously is conclusive of this question.
The matter should, as it were, be viewed in two stages.
First, is it reasonably necessary to provide the
services, and would it be reasonably necessary to do so
at a cost? If so, the fulfilment of the need is likely
to be productive of financial loss. Next, is the
character of the benefit which the plaintiff receives by
the gratuitous provision of the services such that it
ought to be brought into account in relief of the
wrongdoer? If not, the damages are recoverable."

10. Despite what has been referred to as the questionable attitude of some judges (Luntz, Assessment of Damages, 3rd Ed, at p 216), it is well established that no damages are recoverable where the needs of the plaintiff can be met by a re-arrangement of chores which casts a heavier burden on others within the family circle but which is regarded as part of the "ordinary currency of family life and obligation" (see the footnote in Luntz at p 216 where most of the cases are collated).

11. As was pointed out by Gibbs J. in Griffiths v. Kerkemeyer, there must be established a necessity to provide the service. And because it "would be reasonably necessary to do so at a cost", the services must go beyond those of minor changes of domestic routine or attentive care that can be expected of loving relatives and friends.

12. It was not contended on behalf of the appellant that the Master's award for gratuitous domestic services should not have been allowed at all, but rather that it is excessive in the circumstances and allowance should have been made only for some assistance after the plaintiff's operations.

13. In my opinion there is much force in that argument. The Master has allowed for domestic assistance at commercial rates for the whole period between accident and judgment. In my opinion this is an excessive amount, so excessive as to be "wholly erroneous", "out of all reason" or "wholly disproportionate to the circumstances" (Gamser v. Nominal Defendant [1977] HCA 7; (1976-1977) 136 CLR 145.

14. In all the circumstances, something in the area of $5,000 would have been reasonable.

15. So far as the future is concerned, the Master failed to take account of the plaintiff's pre-existing degenerative condition. He allowed for domestic assistance over a period of 20 years at commercial rates, and reached an assessment of $27,000 for future domestic services.

16. The plaintiff was 51 years of age at the date of judgment. To require the defendant in the action to pay for future domestic services for what might well be the rest of the plaintiff's life seems to me to be out of proportion, especially requiring the defendant to pay at commercial rates.

17. It has been said that each case must be determined on its own facts, and it might be unreasonable to apply the gross (pre-tax) rate in all cases. In GIO of New South Wales v. Planas and Another (1984) 2 NSWLR 671 the Court observed that the ordinary commercial rate may include a profit element, may involve an allowance for tax which the plaintiff will not have to pay, and may involve over-compensation having regard to the intensity and nature of the service. In Carrick v. The Commonwealth of Australia (1983) 2 Qd R 365 it was said that it would be proper in appropriate cases for the court to value the services at less than the market rate to take account of these factors and others such as booking fees and travelling expenses built into commercial rates.

18. No regard seems to have been paid to these matters by the Master. The result is that in respect of future domestic services the assessment is "out of all reason" or "wholly disproportionate" to the circumstances. In my opinion a generous assessment for the future would be in the order of half that assessed by the Master. I would allow $13,000, which, together with my assessment for past domestic services, yields a figure of $18,000 instead of the $39,636 assessed by the Master.