Franca Redden v John Charles Forde [1998] ACTSC 219 (27 May 1998)

  
  
  
  

  
   

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ, CRISPIN AND RYAN JJ

   DAMAGES -
appeal against inadequacy - award of general damages - elements
of value judgment - advantage of trial judge - apportionment for
purpose of
interest does not indicate error in total award or any part of it.

   DAMAGES - appeal against inadequacy - award for
future expenses - refusal
to award future expenses of osteopathy and massage - award of "discretionary"
undifferentiated sum for
expenses of other treatment - alleged inconsistency
with other findings and with award for expenses claimed for past - no error
shown.

   Malec v. J.C. Hutton Proprietary Limited [1990] HCA 20;  (1990) 169 CLR 638

   Parkinson v. Kuehnast (unreported, Full Court of the Federal Court,
20 December 1996)

   The Nominal
Defendant v. Gardikiotis [1995] HCA 56;  (1996) 186 CLR 49

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

   Russell v. J. Hargreaves & Sons PTA Ltd (1956) 30 ALJ 533

   Carson v. John Fairax & Sons Ltd [1993] HCA 31;  (1993) 178 CLR 44

   Planet Fisheries PTA Ltd v. La Rosa [1968] HCA 62;  (1968) 119 CLR 118

   Moore v. Canberra Dutch Club (Inc) (unreported, 26 September 1991, Miles
CJ)

   Cirjak v. Beggs (unreported,
20 June 1991, Full Court of the Federal Court
of Australia)

   Paff v. Speed [1961] HCA 14;  (1961) 105 CLR 549

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

   Luntz: Assessment of Damages 1990 (3rd ed) at para.6.4.1

   Sharman v. Evans [1977] HCA 8;  (1977) 138 CLR 563

  

  

   CANBERRA, 3 November 1997 (hearing), 27 May 1998 (decision)

   #DATE 27:05:1998

   Appearances

   Counsel for the appellant: L. Lasry QC with J. Pappas

   Solicitors for the appellant: pappas, j - attorney

   Counsel for
the respondent: H.J. Marshall

   Solicitors for the respondent: Barker Gosling

  

  

   Order:

   1. The appeal be dismissed.

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

  

  

   MILES CJ, CRISPIN AND RYAN JJ

   1. This is an appeal
by the plaintiff against a judgment of the Master
awarding damages for personal injuries sustained in a motor vehicle collision.
Liability was denied on the pleadings, but admitted at the hearing. The
plaintiff was a passenger in a stationary vehicle struck
from behind by a
truck driven by the defendant. It is difficult to see why liability should
have been denied at all. However, the
Master made no special order as to
costs.

   2. The Master's award may be summarised as follows:

  
TABLE
 General damages

  
$60,000.00

   Interest thereon

   $6,511.00

   Past loss of earning capacity

   $185,170.49

   Tax paid on worker's compensation

   $14,426.09

   Future loss of earning capacity

   $266,898.75

   Past out-of-pocket expenses

   $69,989.87

   Future out-of-pocket
expenses

   $30,000.00

   Past domestic assistance

   $5,628.00

   Future domestic assistance

   $5,000.00

   Future cleaning
costs

   $26,469.00

   Total:

   $670,093.20

  

   3. The plaintiff was born in 1943. She trained and qualified as a nurse.
After that she worked as a shop assistant or otherwise in retail trades. She
had her first child in 1976 and resumed working soon
after. She had a second
child in 1978 after which she worked in paid remuneration away from the home
only part-time. In 1980 her
husband was posted overseas and she accompanied
him. When they came back to Canberra in 1982 she returned to full-time paid
employment.
There was a similar break in her paid employment and a return to
it when her husband was posted overseas a second time in 1984.

   4. The plaintiff's case was that she suffered a soft tissue injury to her
cervical spine which aggravated and made symptomatic
a pre-existing underlying
degenerative condition. This has had a substantial impact on her life, greatly
restricting her activities
and producing ongoing pain and reducing her from an
energetic and vital woman to a depressed and inactive person.

   5. The plaintiff
did not attend hospital immediately after injury, but did
attend her general practitioner, Dr R. Dimitri, to whom she complained
of
immediate neck pain extending above the shoulders and along the left arm and
radiating downwards towards the thoracic and lumbar
regions. She stated that
she felt shocked and shaky and felt increasing stiffness in the back and a
splitting headache.

   6. She
took ten weeks off work as a result and started wearing a cervical
collar. X-rays revealed the underlying disc degeneration.

  
7. Dr Dimitri, the general practitioner, reported in June 1989 in terms
which the Master found accurate then and which remained accurate.
They were as
follows:

   "1. Whiplash injury to the cervical spine in the form of
musculo-ligamentous disruption to the soft tissues.
It is early days yet to
anticipate the prognosis of this type of injury but this condition could be
painful up to 3-5 years.

  
"2. Aggravation of previous asymptomatic disc degeneration at level of
C5/6. This is causing neckpain (sic) radiating to the left
arm and forearm."

   8. By August, however, Dr Dimitri was noting complaints of depressed moods
due to both inactivity and pain.
In September 1989 Dr Andrews, a neurologist,
reported aggravation of an asymptomatic degenerative disc at C5/6. After
viewing a CT
scan, Dr Andrews thought that the degenerative condition in
the spine was so widespread that the condition could not be relieved
by
surgery. Dr Keiller, an orthopaedic surgeon, and Dr Robson, another
neurologist, reported views similar to those of Dr Andrews.
However, Dr
Thompson, described by the Master as a medico-legal consultant, thought that
there was nothing wrong with her. There
was an attempt to cross-examine Dr
Thompson over the telephone, which attempt, according to the Master, "broke
down". The Master
rejected Dr Thompson's evidence and the defendant makes no
complaint about that.

   9. The plaintiff continued in her work in the
furniture retail business
until August 1990. She resigned when, as she said "the pain was so intense
sometimes everything got on
top of me". She resumed part-time work in sales
and public relations in September 1991, assisted by pain killers. She
persevered,
as the Master put it, until July 1993 and has not worked since.

   10. Throughout the period from the time of her injury until the
hearing,
the plaintiff was prescribed a range of medications taken in copious
quantities. She was dependent on Valium and pain-killing
medication for some
time. She began taking morphine intravenously, but was not dependent upon it.

   11. In 1991 Dr Arnstein, a
clinical psychologist, diagnosed stress and in
1994 Dr Saboisky, a psychiatrist, diagnosed both depression and
post-traumatic
stress disorder. In December 1996 the plaintiff described to Dr
Saboisky an overdose of medication she had taken following disputes
with her
daughter and with the workers compensation insurer over Dr Arnstein's
fees. Dr Saboisky did not regard this as a serious
suicide attempt so much as
a "cry for help".

   12. Except to the extent to which we will refer, the Master rejected the
conclusions
of Dr Sekel, called for the defendant, on the ground that,
suspecting that the plaintiff was exaggerating, Dr Sekel had advised
the
insurer to keep the plaintiff under observation.

   13. Although the Master appears to have accepted the evidence of Dr
Saboisky
that the plaintiff was suffering from a medically recognized and
diagnosed condition of chronic pain depression or post traumatic
stress
disorder or both, he rejected the submission that the condition was likely to
be permanent. In evidence-in-chief Dr Saboisky
said of persons suffering
from post traumatic stress disorder, that "over a good number of years after
completion of litigation,
something like 50 per cent get some sort of
reasonable occupational adjustment". In cross-examination he agreed that he
was aware
of a study of post traumatic stress disorder in veterans which
indicated that "some 35 per cent resolve over time". The Master
rejected
a submission that "there is a 50 per cent chance that the end of
litigation will resolve the plaintiff's problems,
and that if she is in the
other 50 per cent, 35 per cent of such matters resolve anyway".

   14. The Master, in our view, was correct
in rejecting that submission,
which apparently sought to prove by a mathematical formula that there was only
a 15 per cent chance
of the plaintiff's condition remaining permanent.

   15. The Master summarised the findings on which he assessed damages under
the
various heads as follows:

   "I find that the motor vehicle accident produced soft tissue injury, but
that it also aggravated and
rendered symptomatic a previous underlying
degenerative condition that had been asymptomatic. The sequelae of this
physical injury
was (sic) ongoing pain and significant limitations to the
plaintiff's lifestyle, which has in turn produced a genuine psychiatric
condition of some severity, in the form of depression and post traumatic
stress disorder. I am satisfied that the descriptions given
by the plaintiff
and her husband of the radical change in her lifestyle since the accident, and
her gradual withdrawal from employment
and social and recreational pursuits,
all of which she had previously pursued and enjoyed with vigour, are genuine."

   16. On the
material so far summarised, the Master concluded that the
significant psychological consequences in the case "elevated" general damages
beyond those which might be expected to be awarded for the physical
difficulties associated with a back and neck condition alone.
The Master
awarded general damages of $60,000 apportioning $40,000 to the past for the
purpose of awarding interest.

   17. The
Master went on to state that the accident-related injuries had been
the cause of the plaintiff's gradual withdrawal from the workforce.
In this
regard we take it that he concluded, first, that the plaintiff did suffer the
physical and psychological condition up to
the date of the hearing on which
she relied, and, secondly, that that condition was a sufficiently contributing
factor to her past
and continuing loss of earning capacity. It is implied in
the Master's reasons, conversely, that at the time of hearing, other factors
such as natural degeneration in the spine and family demands had not
overwhelmed the condition attributable to the 1989 injury. The
Master,
accepting the calculations put to him on behalf of the plaintiff, awarded
$185,170.49 for past loss of earning capacity.

   18. In dealing with the loss of earning capacity for the future, the Master
noted the evidence of Dr Sekel that as at 1995 x-rays
showed only a "mild"
level of degeneration, which "in most cases" would present no symptoms,
although degenerative disease can be
provoked by the ordinary activities of
living. The Master concluded that the evidence of Dr Sekel "fell well short,
however, of any
assertion that there would have been a likely point at which
the plaintiff's condition would have developed to its present point
absent the
accident". We take it that the reference to Dr Sekel's evidence was intended
to be a finding in the terms in which the
evidence was described. However,
other than by reference to Dr Sekel's statement that degenerative disease can
be "provoked" by ordinary
everyday activities, the Master did not advert to
the question whether the evidence established, as a possibility, that the
plaintiff's
pre-existing degenerative spinal condition might have been
rendered symptomatic at some time in her life before the hearing without
the
injury suffered at the hands of the defendant. The Master appears to have been
of the view that in order to reduce by way of
discount the sum claimed by the
plaintiff for lost earning capacity in the past, it was necessary to establish
that it was more probable
than not that "absent the 1989 injury, the plaintiff
would have suffered at least some of the harm which she suffered as a
consequence
of her injury". That was an error of law. In the leading case of
Malec v. J.C. Hutton Proprietary Limited [1990] HCA 20;  (1990) 169 CLR 638, it is made clear
that in the case of an event which would or would not have occurred, or might
or might not
yet occur, the issue is not determined on the balance of
probabilities. At 643 Deane J, Gaudron J and McHugh J said:

   "Where proof
is necessarily unattainable, it would be unfair to treat as
certain a prediction which has a 51 per cent probability of occurring,
but to
ignore altogether a prediction which has a 49 per cent probability of
occurring. Thus, the court assesses the degree of probability
that an event
would have occurred, or might occur, and adjusts its award of damages to
reflect the degree of probability. The adjustment
may increase or decrease the
amount of damages otherwise to be awarded."

   19. For future economic loss, the Master accepted on
a prima facie basis a
continuing loss of $675 per week (the average of what was claimed in the
statement of claim as paid to employees
in similar occupations) for the rest
of the plaintiff's otherwise expected working life. The Master reduced the
present value of
that loss by applying a discount rate of 25 per cent to take
into account what he called "the possibility of the resolution of the
psychological condition and the onset of a degree of symptomatology from the
pre-existing back condition". The result was the figure
awarded of
$266,898.75.

   20. The Master also awarded the whole of the past out-of-pocket expenses
claimed, amounting to $69,989.87
of which sum $15,766.19 had been disputed.
The disputed sum was for therapeutic massage carried out by the Vitality
Health Centre.
The Master stated that, on the evidence of Dr Dimitri, the past
massage expenses were appropriate. The Master remarked also that
they had been
paid by the workers compensation insurer. It is not clear why the Master made
that remark. It may have been to exclude
any suggestion that interest was
payable on this component of the damages. It should be observed that payment
by an insurer is not
a reason for awarding an item of out-of-pocket expenses,
unless that payment is to be interpreted as an admission on behalf of the
defendant that the defendant is liable for it. Such an interpretation was not
open in the present case. However, again, no complaint
is made on behalf of
the defendant in relation to this aspect.

   21. It is in the award for expected out-of-pocket expenses in
the future
that the further challenge to the Master's award is made. With regard to
future osteopath and massage treatment, a sum
of $122,000 was claimed. The
Master dismissed that claim saying:

   "While Dr Saboisky indicated that the plaintiff was obtaining
some benefit
from these treatments, in the sense that they were palliative and maintaining
her present condition, Dr Sekel was dismissive
of their benefit. A claim of
this order for treatment which is not supported by a specialist in the
relevant field, and which at
best is described as merely palliative rather
than curative, cannot in my opinion meet the test of a reasonable expense
related to
the accident. While I have been prepared to find the costs to date
of such treatments should be recovered in the award for out of
pocket
expenses, I am not satisfied that the claim for future out of pocket expenses
is satisfied in this respect."

   22. There
were further claims for out-of-pocket expenses in the future.
They included pharmacy ($22,807.45), counselling and psychiatric care
($16,288.60), and visits to general practitioner ($8,823.00) totalling
$47,919.05. The Master found that it was likely that the plaintiff
would
require ongoing psychiatric therapy for a year or so and intermittent
treatment thereafter and awarded $30,000, which he described
as a
"discretionary sum to reflect future pharmaceuticals, psychological,
psychiatric and general practitioner attendances". That
award and the refusal
to award any sum for future osteopathic and massage treatment expenses were
challenged.

   23. Appeals against
an award of damages for personal injuries are decided
by well established principles which do not bear repeating in every case.
However,
this is a case in which the principles deserve some emphasis. In this
regard we were not assisted by the respondent's outline of
submissions which
appear to be based upon an outdated precedent. It is no longer true as a
matter of general principle in an appeal
from a judge sitting without a jury
that the damages must be shown to be "out of all proportion" or "grossly
disproportionate" to
the injury and its consequences. In Parkinson v. Kuehnast
(unreported, Full Court of the Federal Court, 20 December 1996) the
principles and authorities were set out. Gallop J (with whom the other members
of the Court agreed) said at 2:

   "Before an appellate
court interferes with an award of damages it should be
satisfied that the trial judge acted on a wrong principle of law or
misapprehended
the facts, or for these or for other reasons, made a wholly
erroneous estimate of the damage suffered. It is not enough that there
is a
balance of opinion or preference. The scale must go down heavily against the
figure attacked if the appellate court is to interfere
either on the ground of
excess or insufficiency ( Davies v. Powell Duffryn Associated Collieries
Limited [1942] AC 601 per Lord Wright
at 616-7, cited with approval by Dixon
CJ and Kitto J in their joint judgment in Miller v. Jennings [1954] HCA 65;  (1954) 92 CLR 190
at 195-6, and by Barwick CJ in Gamser v. The Nominal Defendant [1977] HCA 7;  (1976-77) 136
CLR 145 at 148).

   As the Judicial Committee of the Privy Council observed in Paul & Anor
v. Rendell (1981)
34 ALR 569 per Lord Diplock at 571, the assessment of
damages in actions for personal injuries is not a science. An assessment of
future economic loss involves a double exercise in the art of prophesying not
only what the future holds for the injured plaintiff,
but also what the future
would have held for him if he had not been injured.

   Some aspects of an award of damages for personal
injury involve what has
been called a "discretionary judgment" ( Miller v. Jennings (supra) at 197 per
Dixon CJ and Kitto J), or
even the exercise of a discretion ( Kalnins v.
Marshall (1970) 44 ALJR 152 at 152 per Barwick CJ). As Miles J observed in
Oliver
Davey Glass Pty Limited v. Hollands (supra), the evaluation of those
sorts of components of an award of damages requires the court
as best it can
to place a monetary value on something which does not lend itself easily to
such a process. The component which places
a monetary value on pain and
suffering is a notable example. An appellate court will be slow to interfere
with that aspect of the
trial judge's award. On the other hand, there are
other aspects of an award of damages which involve simple inferences from
primary
facts found by the trial judge. The calculation of loss of wages for a
closed period by a person in regular employment is an example."

   24. That case raised a distinction between an "arithmetical" approach and
an "intuitive" approach to the assessment of the present
value of future loss.
The judgment emphasised that there can be no general principle that one
approach is preferable to the other
or that they are always mutually
exclusive. Each case will depend upon the nature of the evidence and the
circumstances.

   25.
Some other principles in relation to the awarding of damages might be
mentioned. The fundamental principle that damages for personal
injuries are
compensatory is one which the Master found it desirable to reiterate in his
reasons by reference to a passage in the
judgment of McHugh J in The Nominal
Defendant v. Gardikiotis [1995] HCA 56;  (1996) 186 CLR 49 at 54.

   26. Another principle is that, once there is evidence of damage, it is the
trial judge's duty to fix
a sum to compensate for that damage, no matter how
unsatisfactory the evidence may be in relation to quantum and no matter how
difficult
the task. That is one of the reasons for the reluctance of appeal
courts to interfere with awards which contain a strong element
of discretion
or value judgment. Importantly, the advantage of the trial judge in making a
value judgment based on the presentation
of the plaintiff puts the appeal
court in a difficult position in considering whether to interfere with
findings based on such a
judgment. In Abalos v. Australian Postal Commission [1990] HCA 47; 
(1990) 171 CLR 167, McHugh J referred in a well known passage at 179 to
the advantage of the trial judge in seeing and hearing
the witnesses and the
need on an appeal to show that the trial judge failed to use or palpably
misused that advantage. In the joint
judgment of Dixon CJ and McTiernan J in
Russell v. J. Hargreaves & Sons PTA Ltd (1956) 30 ALJ 533, it was said at
534:

   "In
forming our opinion we should not forget that it is within the province
of a primary judge to discount the accounts given by a plaintiff
of his own
sufferings and disabilities notwithstanding that he does not distrust his
honesty. He is, moreover, often in a better
position to form a judgment as to
the effect which should be given to medical evidence. In cases where we think
that we ought to
substitute another amount for that assessed by the primary
judge, we cannot in forming our own estimate of a proper sum proceed on
our
own view of the evidence without regard to that which we think the learned
judge took. The result may well be, indeed in some
cases it has been, that our
award is somewhat lower than perhaps it would have been if we had been sitting
in original jurisdiction."

   27. As we understand it, the defendant does not seek to challenge the
application of the principle that the Master enjoyed the
advantage of seeing
and hearing the plaintiff. What is submitted on the defendant's behalf is
that, after giving due weight to the
impression made by the plaintiff upon the
Master, and accepting that due weight has to be given to the primary facts
found by the
Master, the award for general damages and for some of the future
out-of-pocket expenses was outside the range of a sound discretionary
judgment.

   28. Reliance was placed by the defendant in the appeal on the decision in
Parkinson v. Kuehnast to which reference
has already been made on matters of
principle. It was submitted that that decision (in which an award of general
damages was reduced
from $80,000 to $40,000) should be regarded as setting
something of a benchmark for the award of general damages in cases such as
the
present involving soft tissue spinal damage with consequent aggravation of a
pre-existing degenerative condition. That submission
is rejected. Whilst part
of the role of a court which hears appeals against awards of damages is to try
to achieve a degree of consistency
in awards at the trial level, there is
considerable danger in taking a single decision and seeking to compare it with
the facts of
another single decision in order to demonstrate error in the
award of damages in one of those decisions. Whilst it is no longer strict
law
that a court cannot or should not compare awards of damages for that purpose (
Carson v. John Fairax & Sons Ltd [1993] HCA 31;  (1993) 178 CLR 44 c/f Planet Fisheries
PTA Ltd v. La Rosa [1968] HCA 62;  (1968) 119 CLR 118) that course should not be followed
unless there is some particular reason for it. We see nothing to be gained
in
the present appeal by comparing the facts and the award in Parkinson v.
Kuehnast and acting upon that comparison in order to test
the correctness of
the damages awarded by the Master in the present matter.

   29. On the other hand, it is appropriate (even inevitable)
that a court
should remind itself of the level of damages that have been awarded in the
recent past by members of that court, or
by courts by whom its awards are
subject to appellate review. In Moore v. Canberra Dutch Club (Inc)
(unreported, 26 September 1991,
Miles CJ, Supreme Court of the ACT) an
explicit attempt was made at trial level to make the award of damages fit
within the parameters
seen to be set by a decision of the Full Court of the
Federal Court in Cirjak v. Beggs (unreported, 20 June 1991, Full Court of the
Federal Court of Australia). However, such an attempt is not necessary in
every case and is not necessary in the present appeal.
All that needs to be
said is that the Master correctly had regard to the various factors that
together were to be reflected in the
award for general damages. They included
the plaintiff's own description of the level and constancy of her pain and
reduction of
movement, the loss of self esteem, the loss of enjoyment of
career, the loss of enjoyment of married and family life and the clinical,
psychological or psychiatric aspects ranging from difficulty in sleeping to an
incident variously described as a suicide attempt
and a cry for help. In
assessing the general damages to reflect these matters, and after making
allowance for such factors as the
pre-existing degenerative condition in the
plaintiff's spine and other difficulties in her life for which the defendant
could not
be held responsible, such as difficulties within the family, the
Master's decision to award the sum of $60,000 is not so low as to
be outside
the boundary of a sound discretionary judgment.

   30. It was claimed that error was shown in the award for general damages
by
the Master's apportionment of $40,000 to the past and $20,000 to the future in
that, given the plaintiff's present and future
condition, the award for the
future was manifestly inadequate for a woman with another 28 years of expected
lifespan and concomitant
pain and suffering. The argument has a superficial
attraction if it is assumed that the Master made an actual and separate award
of general damages for the past and future components. In fact, and in
accordance with longstanding practice, the award for pain
and suffering and
loss of enjoyment of life was a global one to encompass past, present and
future: see Paff v. Speed [1961] HCA 14;  (1961) 105 CLR 549 at 558-9 per Fullagar J. We are
not aware of any judicial authority or of any practice in any comparable
jurisdiction
which justifies separate awards for past and future general
damages.

   31. An award of interest for that part of the damages which
has been kept
out of a plaintiff's hands from the accrual of the cause of action until the
date of judgment is usually appropriate
unless there is some reason to refuse
an award of interest. The award of interest cannot be made in respect of
general damages unless
some part of that award is apportioned to the past. The
apportionment is not to be equated with an actual assessment of the present
value of past pain and suffering and loss of enjoyment of life. Error in an
award of general damages is not demonstrated by the apportionment
for the
purposes of interest.

   32. It was further submitted that the Master's decision in relation to
future out-of-pocket expenses
showed inconsistency and consequent error which
kept the plaintiff out of damages to which she was entitled on the Master's
findings
on the primary facts as to her condition. Again, the argument has a
superficial attraction. The Master made positive findings relating
to the
plaintiff's symptoms and disabilities to the date of hearing that were, on the
face of it, almost wholly favourable to the
case presented on her behalf. That
was a case of a person condemned to a lifetime of crippling physical
restriction and excruciating
pain as well as depression and social isolation,
barely controlled and relieved by an intensive regime of treatment,
medication,
counselling and other assistance. The plaintiff was awarded
damages for loss of earning capacity on the basis that she had been totally
and permanently unable to work from 1993 and would continue so incapacitated
for the rest of her expected life. She was also awarded
the whole of the cost
of her treatment, counselling and medication to the date of hearing as
claimed. It was submitted that, on the
findings necessary to support those
awards, it was erroneous for the Master to be dismissive of her claim as to
the future cost of
medication, treatment and counselling so as to reduce the
total claim for those expenses of nearly $48,000 to a "discretionary" sum
of
$30,000. Similarly, according to the submission, having found that it was
reasonable for the plaintiff to recover expenses of
osteopathy and massage to
the date of the hearing, it was not open to the Master in an arbitrary way to
terminate her claim for those
expenses from the date of the hearing onwards.

   33. In this respect it is instructive to look as some other aspects of the
plaintiff's
claim not directly in issue in the appeal. The plaintiff had
claimed damages under the principle in Griffiths v. Kerkemeyer [1977] HCA 45;  (1977) 139 CLR
161 for the assistance rendered to her and to be rendered to her by her
husband. She claimed $25,750.20 for past
assistance and $70,018.05 for the
future. The claim was obviously and grossly exaggerated. It was based on
so-called "third party
charge out rates" published by an organization called
"Home Help Service ACT Inc.". In fact the rate charged was about half the
published
rates. (This is a matter of some concern for personal injury actions
generally, but we leave that aside.)

   34. The plaintiff also
claimed the costs of a gardener in the future,
amounting to $11,028. That claim was refused in toto. The plaintiff further
claimed
the costs of a cleaner in the future, and that claim was successful in
toto. It amounted to $26,469. We do not know whether the expenses
of gardening
and cleaning were included in the amount of nearly $70,000 awarded for past
out-of-pocket expenses.

   35. The point
is that the plaintiff, through her legal representatives (who
commenced the proceedings in the Magistrates Court), sought in the
particulars
filed on 29 April 1997 and relied on at the hearing, to make out a very
substantial claim. She was successful in her
claim for past and future loss of
earning capacity and for past out-of-pocket expenses. Had she been completely
successful in her
claim for future expenses and for what she now seeks to
establish as appropriate for general damages, she would have received a total
award in the region of a million dollars. That, on the face of it, appears to
us to be an excessive sum for a soft tissue injury
to the cervical spine with
psychological and emotional consequences, but not necessitating surgical
intervention (although, it is
trite to add, every case depends upon its own
circumstances). It would have been surprising if the Master had not approached
the
plaintiff's claim with a degree of caution if not scepticism. In fact, the
Master appears to have been generous in his approach,
especially as it appears
that he regarded as of no account, the possibility that the degenerative
condition of the plaintiff's spine
was such that it might have produced
symptoms and disability in the years between 1989 and 1997. To have discounted
the damages for
that possibility would not have been erroneous. Although the
defendant has not lodged a cross appeal, this factor is, in our view,
relevant
to a proper global view of the Master's assessment.

   36. Furthermore, the Master was entitled to regard the plaintiff's
claims
in respect of the future more sceptically than he viewed her claims for past
loss. Although there was medical evidence to
support the on-going nature of
the plaintiff's condition and complaints, that evidence was to be assessed in
the light of the totality
of the evidence. In particular, it was open to the
Master to give weight to the consideration that at the end of the litigation
that
had taken many years and doubtless contributed to the plaintiff's
on-going psychological condition, there was and is a chance that
the plaintiff
will come to terms with her condition more successfully than she has in the
past, and that she will become less dependent
upon heavy medication and other
forms of treatment and assistance. For the past, the Master had presented to
him a fait accompli,
namely the incurring of heavy expenditure paid for by a
third party and the payment of workers compensation for as long as the
plaintiff
had been unable to work from the time of her injury. For the future,
when the expenses fall to be paid for by the plaintiff herself,
it was
essential to make a hard decision as to whether the expenses claimed are
reasonable and as to the strength of the possibility
that the plaintiff will
incur them.

   37. Any award for future loss is unsatisfactory in the sense described by
Luntz: Assessment
of Damages 1990 (3rd ed) at para.6.4.1. As the future
unfolds, the particular expenses in respect of which an award has been made
will either be incurred or not incurred. Assume that it is found that there is
a 50 per cent chance of a plaintiff incurring a future
expense and an award of
50 per cent of that expense is made, if the plaintiff incurs the expense, then
he or she is under-compensated
by half of the detriment incurred. Conversely,
if the plaintiff does not incur the expense, then he or she is
over-compensated by
half to the defendant's detriment. The law provides no
solution to the impossibility of predicting future events. Since it is by
no
means certain that the plaintiff in the present case will actually incur
liability for the sums claimed, it would have been correct
for the Master to
discount the award for future expenses having regard to that uncertainty. It
is in this sense that we take it that
the Master referred to the sum of
$30,000 for future medication and medical expenses as a "discretionary" award.
It would have been
of assistance and the Master had spelled out his reasons in
this regard rather than lump the figures together and label the result
as
"discretionary". However, we do not see any error in the outcome.

   38. In refusing to award any sum at all for future osteopathy
and remedial
massage, the Master stated that the claim cannot meet the test of a reasonable
expense related to the accident (emphasis
added) because the treatment was not
supported by a specialist in the relevant field and was at best palliative
rather than curative.
If the Master's statement had been intended to be a
statement of law, it would have been in error. However, we think that all that
the Master intended to convey was that he was not convinced, as a matter of
fact on an issue on which the plaintiff bore the onus,
that there was a
reasonable connection between the expense claimed and the condition that the
treatment is intended to alleviate.
The Master's reasoning that he did not
find the evidence convincing because it was not backed by the opinion of any
person adequately
qualified to express it does not indicate error. It is true
that the Master's attitude to the future contrasted strongly with his
attitude
to the past where he appears to have been generous to the plaintiff in
allowing all the expenses of osteopathy and remedial
massage. These were
apparently included in the expenses paid by the workers compensation insurer
and presumably assumed by the Master
to be repayable by the plaintiff to the
insurer. However, generosity as to the past does not mean that a robust and
more realistic
attitude to the future was not justified.

   39. The case is not to be compared with Sharman v. Evans [1977] HCA 8;  (1977) 138 CLR 563
where the necessary costs of keeping the quadriplegic and epileptic plaintiff
at home rather than in hospital
were in issue. The present case is one in
which the issue is whether the expenses will be reasonably necessary. The
reports of the
osteopath and masseur were described in the plaintiff's
submissions as "unchallenged" and no doubt they were in the sense that the
makers were not called to give evidence. But the probative value of those
reports is another matter. It would have assisted if the
Master had been more
explicit in his reasons, but we think that the Master is likely to have
regarded the reports of the osteopath
and masseur as not entirely objective in
their prognosis and recommendations as to ongoing treatment.

   40. Finally, there is the
Master's assessment of the plaintiff herself to
which we have already referred in relation to the proper approach to appeals
against
awards of damages for personal injuries. It is clear that the
plaintiff's condition at the trial was likely to have attracted a good
deal of
sympathy and it is understandable that the award of damages reflected that
sympathy to the extent that the plaintiff's claim
for loss of earning capacity
and for past expenses was accepted without qualification. At the same time,
the award indicates, in
the other respects to which we have referred, that the
Master recognized that, as particularised, the plaintiff's claim was grossly
overstated. Generosity and sympathy for the past had to be tempered with
realism, at least as far as the future was concerned. Sensitivity
in relation
to the plaintiff's ongoing psychological condition is also understandable, and
it may be that it discouraged the Master
from disclosing his full reasons.

   41. In our view, the total award, viewed globally, has not been shown as
inadequate to compensate
the plaintiff for the effect of the defendant's
wrong-doing. The appeal should be dismissed with costs.