Robyn Lee Fry v Jan McGufficke [1998] ACTSC 176 (18 March 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ, GALLOP AND CRISPIN JJ

  

 


   ASSESSMENT OF DAMAGES - appeal from the Master - whether findings for past
and future loss revealed inconsistencies demonstrative
of error - damages for
future a matter of judgment rather than calculation - strictly arithmetic
approach may give false appearance
of accuracy - global approach upheld.

   ASSESSMENT OF DAMAGES - Master preferred contemporaneous medical notes to
evidence of plaintiff
- trial judge has advantage in assessment of credibility
- observations of witness not normally disturbed on appeal - whether Master
could reject unchallenged evidence.

   ASSESSMENT OF DAMAGES - whether Master failed to give adequate reasons -
whether necessary
to detail all factors leading to conclusion.

  

   Precision Plastics Pty Ltd v Demir [1975] HCA 27;  (1975) 132 CLR 362, considered

   Todorovic v Waller [1981] HCA 72;  (1981) 150 CLR 402 at 412-413, applied

   Wilson v Peisley (1975) 50 ALJR 207 at 209, considered

   Abalos v Australian Postal
Commission [1990] HCA 47;  (1990) 171 CLR 167, applied

   S.S. Hontestroom v S.S.Sagaporack [1927] AC 37, followed

   Devries and Anor v Australian National
Railways Commission and Anor [1992] HCA 41;  (1993)
177 CLR 472, applied

   Nicholson v Nicholson (1994) 35 NSW 308 at 320, considered

   Temiha v Sadebarth (unreported,
NSW Court of Appeal, 13 May 1997),
considered

   Creer v District Court of New South Wales (unreported, NSW Court of Appeal,
4 March
1997), considered

   Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247, followed

   Griffiths v Kerkemeyer [1977] HCA 45;  (1997) 139 CLR 161, applied

   Fox v Wood [1981] HCA 41;  (1981) 148 CLR 438, applied

  

  

   CANBERRA, 3.4 February 1998 (hearing), 18 March 1998 (decision)

   #DATE 18:03:1998


 

   Appearances

  

   Counsel for the appellant/plaintiff: Mr D J Higgs SC with Mr C Whitelaw

   Solicitors for the appellant/plaintiff:
Howes Powrie Rowe

  

   Counsel for the respondent/defendant: Mr H J Marshall

   Solicitors for the respondent/defendant: Barker
Gosling

  

  

  

   Order:

   1 The appeal be dismissed.

  

   2 The appellant pay the respondent's costs of the appeal.

  

  

  

   1. THE COURT: This is an appeal by the plaintiff against the assessment of
damages made by the Master in relation
to personal injuries sustained in a
motor vehicle accident on 29 June 1988. The plaintiff claimed that the
accident caused injuries
to her neck and back which had left her with a legacy
of continuing pain and disabled her from working more than 15 hours per week.
That disability was said to be permanent. She also claimed that the accident
had caused an aggravation of a pre-existing epileptic
condition which had
previously been stabilised. It was subsequently necessary to have a right
temporal lobectomy in order to resolve
this condition and the surgery gave
rise to attendant complications. In addition, she claimed that the accident
caused a problem
with her jaw which also required surgical intervention.

  

   2. In 1991 and 1992 the plaintiff enrolled in medicine at the University
of
Newcastle but failed to pass her first year subjects from either of two
attempts. It was claimed that this failure was attributable
to disabilities
caused by the accident. There was a very substantial claim relating to both
past and future loss of earning capacity.
There was a Griffiths v Kerkemeyer
claim based on the need for home help to assist with heavy domestic cleaning
and it was contended
that this would be required throughout the balance of the
plaintiff's life. Substantial out of pocket expenses were claimed and,
in
addition, a very substantial allowance was sought for future medical expenses,
analgesics and therapeutic massage said to be necessary
to relieve the pain.

  

   3. The Master noted that there had been many inconsistencies between the
plaintiff's evidence and contemporaneous
notes and found that she had
exaggerated her claims of pain. He was not satisfied that the accident had
aggravated the plaintiff's
epilepsy or caused the problems with her jaw.
Similarly, he was not satisfied that the plaintiff's failure to complete her
medical
studies was attributable to disabilities sustained as a result of the
accident. He did find that her neck and back injuries had contributed
to her
past income loss and would continue to have some impact on her future
earnings. However, he took into account the fact that
there had been extensive
periods during which she had been prevented from working due to conditions not
related to the accident and
that there had been a further lengthy period in
which any loss of earnings was attributable to her decision to embark upon
medical
studies. He ultimately awarded her the sum of $30,000.00 for past
economic loss arising from restrictions in her employment as a
social worker
due to disabilities resulting from the neck and back injuries. He awarded a
further sum of $40,000.00 as a buffer for
future economic loss.

  

   4. So far as the Griffiths v Kerkemeyer claim was concerned, he allowed the
sum of $50.00 per week
throughout the whole of the plaintiff's expected life
subject to a discount of 3%. This amounted to $66,884.00. He allowed the sum
of $93,779.56 for out of pocket expenses relating to those disabilities which
he found to have been caused by the accident and a
further sum of $11,308.19
as a Fox v Wood component. He accepted that the plaintiff was taking various
medications due to pain caused
by the accident and apparently accepted that
she was entitled to some allowance for future medical expenses, on-going
massages and
special pillows. However, since he had not been satisfied that
her condition was as serious as she had claimed, he was unable to
be satisfied
that these claims should be allowed in full. He ultimately awarded a global
sum of $15,000.00 for future out of pocket
expenses. In addition, he assessed
general damages in the sum of $45,000.00 and added interest of $3,692.00 in
respect of a component
of $20,000.00 which he attributed to past loss. These
awards gave rise to an overall verdict of $305,663.75 plus costs.

  

   5.
The awards for past and future economic loss were attacked on a number
of grounds.

  

   6. First, it was submitted that even if
the Master's findings of fact could
not be impugned, the amounts awarded for past and future economic loss
revealed inherent inconsistencies
which were demonstrative of error. In
support of this contention counsel proffered calculations purporting to show
that the amount
awarded for past economic loss reflected an allowance of
approximately nine hours per week whilst the amount awarded as a buffer
for
future economic loss reflected little more than two hours per week. The
evidence was said to have established that the plaintiff's
injuries and
disabilities had stabilised and it was contended that the inconsistency
between these approaches was not logically defensible.
In our view no such
inconsistency arises. The calculations purporting to show that the allowance
for the future economic loss reflected
little more than a reduction of two
hours per week was based upon the assumption that the plaintiff would have
worked until 65 years
of age. The Master did not make any finding to that
effect. It is true that in Precision Plastics Pty Ltd v Demir [1975] HCA 27;  (1975) 132 CLR
362 the High Court of Australia held that a jury acting reasonably would have
been bound to have accepted a plaintiff's
evidence that she had intended
working until she was 55 years old, given that such evidence had been
uncontradicted, unchallenged
in cross-examination and not inherently
incredible (per Gibbs J at 371). In the present case, however, it is clear
that the Master
had formed an adverse view of the plaintiff's credibility.
Furthermore, as the High Court observed, acceptance of evidence as to
the
plaintiff's intention did not mean that the court was not entitled to take
into account the possibility that she may have subsequently
changed her mind
or, for one of many reasons, been unable to remain in employment for the whole
period. In the present case, any
assessment of the measure of loss which she
might sustain during periods extending many years into the future must
obviously have
been attended by considerable uncertainty. As Gibbs CJ and
Wilson J said in Todorovic v Waller [1981] HCA 72;  (1981) 150 CLR 402 at 412-413:

  

  

   "In the case of loss of earning capacity it is necessary to compare what
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
at 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."

   7. In our view it is inappropriate to treat the allowance which the Master
described
as a "global buffer for future economic loss" as reflecting some
underlying view that the plaintiff's disabilities would result in
a consistent
loss of earnings for slightly more than two hours per week for the next 31
years. In any event, such a comparison would
have been of limited value. In a
case of this kind any allowance for future economic loss must take into
account many imponderables.
For example, a plaintiff's condition may improve
once the litigation has been resolved. In the present case when asked about
this
proposition, Dr Brown who had been the plaintiff's treating general
practitioner conceded that a great deal of stress would be removed
when the
litigation had been completed and said that whilst the patient would have
continuing pain and problems with work, some things
would be better for her.
Furthermore, many people sooner or later make adjustments in order to cope
with long term disabilities.
Workplace conditions also change over time.
Within this context the trial judge is obliged to make a judgment in the
exercise of
his or her discretion. An appeal against the exercise of that
discretion is, of course, governed by established principles and, as
Barwick
CJ pointed out in Wilson v Peisley (1975) 50 ALJR 207 at 209, the less
'ponderable the elements of damages under consideration,
the less likely will
there be a case for setting aside the award' unless, of course, it can be
shown to have been based upon some
demonstrable error. In the present case the
approach taken by the Master in relation to economic loss has not been shown
to be vitiated
by any error of principle and has not been demonstrated to be
unreasonable in the light of the findings concerning the injuries and
disabilities caused by the accident.

  

   8. It was submitted that the Master had fallen into error in assessing
damages for past
and future economic loss on the basis of an intuitive rather
than an arithmetical approach. Counsel for the plaintiff submitted that
it was
preferable to adopt the latter approach where that was practicable. As a
matter of general principle that is correct. Furthermore,
this case in
particular was one in which any assessment of damages for economic loss was
beset by so many imponderables that an arithmetic
approach could only have
given a false appearance of accuracy. Nevertheless, in our view, it was open
to the Master to make a global
assessment of the losses in question, based on
the evidence but without express reference to arithmetical calculation, his
award
does not bear the appearance of gross inaccuracy. However, it is rare
that the facts allow one approach to the exclusion of the other.
Some
arithmetical basis must be used and a lump sum cannot be plucked out of the
air, but judgment must be used in the application
of arithmetic to what
figures the evidence may support. We bear in mind the caution of Stephen J in
Todorovic v Waller at 431 that:

  

  

   "The concern of courts should not be, as is often said, lest processes of
assessment bear an illusory air of precise
accuracy but rather lest their
outcomes bear the all too real appearance of gross inaccuracy in attaining
anything like a proper
measure of compensation."

   9. Secondly, it was also argued that there was an inconsistency between the
award for future economic
loss and the component of the Griffiths v Kerkemeye
r award for future home help. The former was said to involve an allowance of
a
little more than two hours per week whilst the latter was said to involve an
allowance of four hours per week. This comparison
was again unhelpful. As
already observed, it was wrong to treat the global buffer for economic loss as
reflecting a foreshadowed
reduction in the working hours which the plaintiff
would be able to sustain on a consistent basis between the date of the hearing
and her 65th birthday. Furthermore, the Griffiths v Kerkemeyer allowance was
based upon the need for assistance in relation to heavy
domestic cleaning
whilst the plaintiff's work as a social worker was conceded to be of a
sedentary nature.

  

   10. Thirdly, it
was contended that the Master fell into error in finding
that the plaintiff had exaggerated her symptoms and disabilities. This
submission
was supported by an attack upon the Master's finding that the
plaintiff's complaints of sexual abuse as a child had not been referred
to in
the extensive psychological and psycho-social reports prepared prior to her
lobectomy. Counsel for the appellant did not ultimately
seek to support the
submission by any detailed analysis of the evidence calculated to demonstrate
that the finding was in fact erroneous.
In any event, this was merely one
example of many inconsistencies which the Master found between the plaintiff's
evidence in chief
and contemporaneous notes. Other examples referred to by the
Master include apparently exaggerated accounts of her injuries which
were not
consistent with the contemporaneous notes of police, hospital staff and
medical practitioners. Accordingly, even if it could
be shown that the Master
had fallen into error in relation to this particular example, that would not
necessarily impugn the validity
of his conclusions concerning the plaintiff's
credibility.

  

   11. Furthermore, the plaintiff gave evidence over a period of
some three
days and the Master had ample opportunity to assess her credibility by
reference to her demeanor. It is well recognised
judicially that a trial judge
enjoys a great advantage in any assessment of credibility by reason of having
seen and heard the witnesses
in question: Abalos v Australian Postal
Commission [1990] HCA 47;  (1990) 171 CLR 167. It has long been recognised that conclusions
reached as a result of a trial judge's observations of witnesses
should not
normally be disturbed on appeal: S.S. Hontestroom v S.S. Sagaporack [1927] AC
37. In the present case it has not been
demonstrated that the Master misused
this advantage, or acted on evidence inconsistent with facts which had been
incontrovertibly
established or on evidence glaringly improbable: Devries and
Anor v Australian National Railways Commission and Anor [1992] HCA 41;  (1993) 177 CLR 472.

  

   12. Fourthly, it was sought to impugn the Master's rejection of any causal
nexus between the plaintiff's
epilepsy and the accident because, it was said,
one of the main bases for this rejection was a finding that she had taken part
in
a gabapentin study prior to the accident and this finding was incorrect.
This submission is rejected. The Master's rejection of the
plaintiff's claim
that the accident had caused an exacerbation of her epilepsy was based upon a
detailed analysis of the evidence.
He took the view that the most important
witness on this aspect of her claim was Professor Buchanan who had treated her
for epilepsy
since November 1987. Professor Buchanan's notes recorded that she
was to be reviewed in January 1988 for, inter alia, a trial of
gabapentin
and/or temporal lobectomy. In his oral evidence he said that from his first
consultation he had thought that a temporal
lobectomy required consideration
because of his diagnosis of 'intractable complex partial seizures' which had
not previously responded
to medication. He confirmed that by early 1988 the
gabapentin study was the only option short of a lobectomy that was to be
tried.
He also confirmed that the plaintiff undertook this study. It was not
the fact that the study had been undertaken which was important
to the
Master's conclusion but the fact that it had been arranged prior to the
accident because of the severity of her epilepsy.
Furthermore, even that fact
was merely confirmatory of the more direct evidence from Professor Buchanan as
to the nature and extent
of her seizures. The Master was clearly entitled to
and did accept this evidence. He was also entitled to accept Professor
Buchanan's
evidence that she did undertake the gabapentin study.

  

   13. Fifthly, it was submitted that the Master was not entitled to reject
the opinions and prognosis of Professor Bogduck as to the nature and extent of
the plaintiff's disabilities. As the Master pointed
out, Professor Bogduck had
himself acknowledged that some of his views were "avant-garde" or "not
generally accepted", though he
had maintained that his method of diagnosis was
reliable and that non-acceptance of his colleagues was due to ignorance.
Nonetheless,
Professor Bogduck had not been cross-examined in a manner
calculated to expose any deficiencies in the reasoning process which he
had
employed, and it was submitted that his evidence had not been effectively
challenged. It was conceded that Dr Cairns had expressed
an alternative view
and been critical of Professor Bogduck's view but counsel for the plaintiff
sought to impugn this evidence on
the basis that his criticisms were "based in
ignorance". However, Dr Cairns was not asked to attend for any
cross-examination at
all and in that respect his opinion was also
unchallenged. A trial judge is not always obliged to accept all of the
evidence adduced
from a particular witness even if unchallenged: Nicholson v
Nicholson (1994) 35 NSW 308 at 320, Temiha v Sadebarth (unreported, NSW
Court
of Appeal, 13 May 1997), Creer v District Court of New South Wales
(unreported, NSW Court of Appeal, 4 March 1997). In the
present case Professor
Bogduck conceded that he was reliant upon the plaintiff's description of the
extent of her pain and, as previously
mentioned, the Master found that she had
been guilty of significant exaggeration. In these circumstances, he was
entitled to come
to the view that the opinion of Dr Cairns should be
preferred.

  

   14. Sixthly, it was also contended that the Master had fallen
into error by
failing to give adequate reasons for the awards in relation to the damages
awarded. It is, of course, necessary for
a trial judge to state the grounds
which have led him or her to the conclusions reached concerning disputed
factual questions and
to list his or her findings on the principal contested
issues. On the other hand, it is not necessary for a judge to detail every
factor which he or she has found to be relevant or irrelevant to such
conclusion. In particular, it is not necessary to itemise every
factual matter
taken into account. Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247
per Mahoney JA at 270. We do not accept
that the Master's decision can be
impugned on this ground.

  

   15. Seventhly, it was argued that the allowances for past and
future
economic loss were inadequate on their face, even if the approach taken by the
Master was otherwise valid. This was supported
by reference to an analysis of
the amounts which it was said the plaintiff would have been able to earn had
it not been for the disabilities
to her neck and back during those periods in
which she was not disabled or otherwise unavailable as a result of other
matters unconnected
with the accident. In our view, this submission cannot be
sustained in light of the Master's findings that the plaintiff had exaggerated
her symptoms and his failure to accept that she was unable to work for the
whole of the periods in question.

  

   16. Various
attacks were also made on the Master's allowance for future
medical expenses. In particular, it was submitted that his failure to
allow
the full costs of consulting medical practitioners throughout the balance of
her life was inconsistent with what was said to
be an implicit finding that
she would require medication such as Digesic throughout the balance of her
life, given that some or all
of those medications required prescriptions which
could only be obtained from medical practitioners. This submission does not
reflect
the findings of the Master. The Master did not find that those
medications would be required throughout the balance of the plaintiff's
life:
he merely recounted the fact that there had been a claim for ongoing
medication at a rate which would have amounted to a lifetime
expense of
$9,899.00. Then, after referring to the claims for the cost of consulting
medical practitioners and obtaining pillows,
he reiterated that he was not
satisfied that her condition was as serious as she claimed. It was in this
context that he awarded
the global sum in respect of future out of pocket
expenses. That sum must be taken to include some allowance for the cost of
future
medications and some allowance for the consultations with medical
practitioners including consultations for the purpose of obtaining
prescriptions.

  

   17. It was also argued that the Master was in error in not allowing any sum
for the future cost of massage
treatments when he had found that they were
therapeutic. Again, this misrepresents the Master's finding. What the Master
actually
found was that the claim was not justifiable "indefinitely". This
aspect of the plaintiff's case obviously fell to be determined
in the light of
the Master's finding that the plaintiff's disabilities were not as serious as
she claimed. In this context it seems
to us that the Master's approach
reflected an acknowledgment that the massages were of some therapeutic
benefit, but a view that
the whole amount claimed should not be allowed
because he was not satisfied that they would be required at the level claimed
throughout
the balance of the plaintiff's life. The global sum for future out
of pocket expenses appears to us to have been intended to make
some allowance
for that portion of this claim that the Master did regard as justifiable. It
has not been shown that the Master fell
into error in approaching this aspect
of the plaintiff's claim by awarding a global sum or that the amount so
awarded was inadequate.

  

   18. The Master's award of general damages was also attacked as inadequate.
Again, having regard to the Master's findings
of exaggeration, it does not
seem to us that any error in the assessment of this component of damages has
been demonstrated.

  

   19. The appeal must be dismissed.