Robert Josephus Vanderhoeven v Cheryl Shelley No. Sca 88 of 1997 [1998] ACTSC 240 (16 June 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   GALLOP, HIGGINS AND CRISPIN JJ

  

  

   Appeal - award of damages for personal injuries - whiplash injury -
inadequacy of components for general damages and past and
future economic loss
- relevant principles.

  

   Davies v Powell Duffryn Associated Collieries Limited [1942] AC 60 1,
referred
to

   Miller v Jennings [1954] HCA 65;  (1954) 92 CLR 190, referred to

   Gamser v The Nominal Defendant [1977] HCA 7;  (1976-77) 136 CLR 145, referred to

   Paul & Anor v Rendell (1981) 34 ALR 569, referred to

   Kalnins v Marshall (1970) 44
ALJR 152, referred to

   Oliver Davey Glass Pty Limited v Hollands (Full Court, Federal Court of
Australia, Neaves, Miles and Lee
JJ, 5 July 1990, unreported), followed

   Hebditch v Sheppeard (Full Court, Supreme Court of the Australian Capital
Territory, Gallop,
Higgins and Ryan JJ, 12 July 1996, unreported), discussed
and followed

   Parkinson v Kuehnast (Full Court, Federal Court of Australia,
Gallop, Miles
and Foster JJ, 20 December 1996, unreported), discussed

   Fuller v Galvin (Supreme Court of New South Wales, Court
of Appeal, Kirby
P, Mahoney and Powell JJA, 29 March 1995, unreported), followed

   Planet Fisheries Limited v La Rosa and Anor
[1968] HCA 62;  (1968) 119 CLR 118, followed

   Wurth v Supler Pty Ltd (Supreme Court of the Australian Capital Territory,
Master Connolly, 1
November 1996, unreported), referred to

   Redden v Forde (Supreme Court of the Australian Capital Territory, Master
Connolly, 20
June 1997, unreported), referred to

  

  

   CANBERRA, 6 May 1998 (hearing), 16 June 1998 (decision)

   #DATE 16:6:1998

  

   Appearances

  

   Counsel for the Appellant: Mr P Webb QC with Mr D Campbell

   Solicitors for the Appellant: Scott Sheils
& Glover

  

   Counsel for the Respondent: Mr C T Barry QC

   Solicitors for the Respondent: Mallesons Stephen Jaques

  

  

   THE COURT ORDERS THAT:

  

  

   1. The appeal be allowed.

  

   2. The award of the Master be set aside and in substitution
thereof there
be an award for damages in favour of the appellant in the sum of $148,084.20.

  

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

  

   GALLOP J

  

   1. This is an appeal against the inadequacy of an award of damages in
favour of the
appellant in the sum of $125,084.20. The appellant was injured
in a motor vehicle accident on 16 February 1993. Liability and contributory
negligence were in issue. The Master determined liability in favour of the
appellant and made no finding in relation to contributory
negligence. He
proceeded to assess the damages claimed by the appellant and handed down his
award on 24 October 1997.

  

   2.
The appellant challenged the Master's awards for general damages and
past and future economic loss. The appellant did not challenge
any particular
primary findings of fact but submitted that, having regard to those findings,
his general acceptance of the plaintiff
as a witness of credit and other
favourable findings in relation to the appellant's case, the Master's
assessment of damages for
general damages and past and future economic loss
was erroneous and the damages should be reassessed by this court.

  

   3. For
general damages, the Master awarded the sum of $27,000, which he
regarded as being towards the upper range for soft tissue injuries
alone. For
past economic loss he awarded the sum of $30,000 inclusive of interest. For
future economic loss he awarded the sum of
$50,000.

  

   THE RELEVANT PRINCIPLES

  

   4. Before an appellate court interferes on 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 p6l6-7 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
p195-6 and by Barwick CJ in Gamser v The Nominal Defendant [1977] HCA 7;  (1976-77) 136 CLR
145 at pl48).

  

   5. 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.

  

   6. Some aspects of an award of damages for personal
injury involve what has
been called a "discretionary judgment" (Miller v Jennings (supra) at p197 per
Dixon CJ and Kitto J), or even
the exercise of a discretion (Kalnins v
Marshall (1970) 44 ALJR 152 at p152 per Barwick CJ). The evaluation of those
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 that places a monetary value on pain and suffering is a
notable example. An appellate court will be
slow to interfere with that aspect
of a trial judge's award (Oliver Davey Glass Pty Limited v Hollands (Full
Court, Federal Court
of Australia, Neaves, Miles and Lee JJ, 5 July 1990,
unreported).

  

   GENERAL DAMAGES

  

   7. The plaintiff's case at trial
was that he had suffered a significant
musculo ligamentous injury to his neck and that the injury had left him with
ongoing disabilities
that had caused, and will continue to cause, a
significant loss of earning capacity.

  

   8. The defendant's case at trial was
that the injury to the plaintiff had
been of a minor nature.

  

   9. The Master found that the collision was of a relatively minor
nature but
that the appellant had ongoing pain from musculo ligamentous injury to the
neck which is also productive of headaches
but that there was no neurological
involvement of physical damage to the spine. The Master further found that the
appellant's condition
is likely to be permanent and continue to generate
symptoms.

  

   10. In Hebditch v Sheppeard (12 July 1996, unreported) a Full
Court of this
court (Gallop, Higgins and Ryan JJ) said in relation to neck injuries,

  

  

   "This Court is a court of unlimited
jurisdiction in the assessment of
damages for personal injuries. By far the greater proportion of such cases
arise out of motor vehicle
accidents. It is also true to say that a good
proportion of such cases involve injuries to the spine at the cervical level
and in
the lumbar region. In some cases the injury sustained is sometimes
confined to soft tissue and ligamentous damage and in other cases
surgical
intervention has been necessary. The trend has been to award higher awards of
damages in the latter class of case than in
the former.

  

   It goes without saying that in assessing damages the Court must draw upon
its own experience, rely upon its own
analysis of the evidence in the
particular case and reach an opinion about the correct assessment of
compensation for the injury
sustained, the pain and suffering, loss of
amenities and all the other matters that are required to be taken into account
in assessing
general damages.

  

   The Court must recognise also that no two cases are wholly alike and that
apparent similarities arc often
superficial. Because the elements which
constitute the basis of an assessment of damages for personal injuries vary so
infinitely,
there can be no fixed or unalterable standard for assessing the
amounts for those particular elements. Nevertheless, it is not out
of place
for the Court in its endeavour to assess damages within a recognised range to
search for any trend of awards in reasonably
comparable cases and use a
current path as a guide to making its assessment.

  

   By looking at comparable cases the Court does
not leave itself little room
for flexibility. The proper award cannot be arrived at by adopting fixed
limits. But it is proper for
a Judge to take notice of recent assessments made
by other Judges of this Court in cases which bear a reasonably close
resemblance
to the case under consideration."

   11. I repeated those observations in Parkinson v Kuehnast (Federal Court of
Australia, 20 December
1996, unreported).

  

   12. In that case, a Full Court of the Federal Court (Gallop, Miles and
Foster JJ) were unanimous in the
view that an award of $80,000 for general
damages was outside the recognised range for cases of its type and at variance
with the
trend of awards in reasonably comparable cases. The plaintiff in that
case, as is the situation in the present appeal, had suffered
a whiplash
injury but had not undergone any surgical intervention to control the pain and
disability caused by the subject accident.
The award for general damages in
that case was reduced to $40,000.

  

   13. The question for this court on appeal is whether the
result of $27,000
for general damages was so unreasonable or plainly unjust that this court
should infer that an error was made and
should review the award and substitute
some greater sum. In Fuller v Galvin (Supreme Court of New South Wales, Court
of Appeal, 29
March 1995, Kirby P, Mahoney and Powell JJA, unreported), Kirby
P, as he then was, said that review of awards of damages is beneficial
because
it helps to set the standards which apply to all cases. He said it promotes
settlement of cases by ultimately enforcing a
broad judicial norm. Reference
was made to Planet Fisheries Limited v La Rosa and Anor [1968] HCA 62;  (1968) 119 CLR 118 at
pl25. His Honour further said review helps to reduce idiosyncratic approaches
and large disparities. Lastly,
his Honour stressed that finality is an
important public policy in litigation, including in damages appeals. Finality
is itself an
attribute of justice. It provides a reason for appellate
restraint in disturbing assessments of damages, even where the appellate
court
would have entered judgment, on the same facts, in a greater or lesser sum. An
appellate court will not overlook the costs,
delays and other disadvantages of
litigation. It will not "tinker with" a judgment. It will not "fine tune"
particular components.
Nor will it interfere simply because it disagrees with
elements of the award or with certain of the reasoning of the primary judge.

  

   14. Many expressions have been used to crystallise the role of the
appellate court. Many more, no doubt, will be invented
but in the end phrases
such as "wholly erroneous" or out of all reason" or "beyond the range of a
sound exercise of assessment",
though unsatisfying, simply send a message to
appellate courts that they must exercise restraint.

  

   15. In the present case
it should not be minimised that the Master had the
opportunity of observing the appellant and made an assessment of the appellant
in reaching his award. There was nothing to suggest that the Master either
misused or failed to use that advantage.

  

   16. I
would not interfere with the Master's award for general damages
because I think it was within the appropriate range for a case of
this type
and accords with the types of award made in similar cases of the same type.

  

   17. However, there is another reason
why I would not be prepared to
interfere. The overall award of $125,084.20, as a global sum, was a proper
award of damages in all
the circumstances. The components for past and future
economic loss were a little generous in my view, but there is no point in
tinkering
with the Master's award of damages, indeed that is not the role of
this court. As a global sum, the award was appropriate.

  


  18. I would dismiss the appeal with costs.

  

   HIGGINS J

  

   1. I have had the advantage of reading in draft the reasons
of Gallop J in
this matter.

  

   2. Whilst I concur with his Honour's observations concerning the principles
underlying an appellate
Court's approach to an assessment of damages
challenged before it, I am of the view that the sum of $27,000 awarded in this
case
was manifestly inadequate.

  

   3. I agree, however, that, having been given no real guidance by way of
evidence as to past and
future loss of earning capacity, the Master's award
was appropriate in the circumstances.

  

   GENERAL DAMAGES

  

   4. The
Master accepted that the plaintiff suffered a musculo-ligamentous
injury to the neck. It was a whiplash type injury. It has led to
ongoing and
frequent neck ache and headaches. The plaintiff's usual employment as a
computer consultant exacerbates these symptoms.

  

   5. There was dispute at trial as to both the extent and likely duration of
these symptoms. However, the Master found that,
although there was no
neurological involvement by way of physical damage to the spine, the symptoms
were not going to improve and,
indeed, were permanent.

  

   6. The symptoms were, the Master found, of sufficient severity to seriously
interfere with the plaintiff's
working capacity, though he was, by and large,
able to carry out his duties satisfactorily.

  

   7. There was also found to have
been serious limitations upon the
plaintiff's general enjoyment of life. The following passage from the Master's
reasons for judgment
illustrates the picture the Master had of the plaintiff:

  

  

   "(at 8) He now complains of constant and ongoing neck pain,
and headaches.
These get particularly bad when he has to concentrate for long periods at
work. He also says that he has to always
be careful in his physical activities
- he no longer engages in his former sporting pursuits, and he must be careful
in engaging
in activities with his children. Both the plaintiff and his wife
gave evidence that this need for caution in playing with his children
is
distressing. He needs to take regular medication, and undertake a regime of
exercises for his neck. He regularly uses hot packs
to relieve his symptoms."

   8. It was open to the Master to accept, as he did, this picture of the
plaintiff's disabilities and
to accept that it would be permanent.

  

   9. Such disabilities, to be suffered on a permanent basis, seem to me so
serious as
to warrant a significantly higher award of general damages than
$27,000.

  

   10. It is not necessary, if an award appears manifestly
excessive or
inadequate, to be able to identify a particular error.

  

   11. However, it is significant that the Master described
the award of
$27,000 as being "towards the upper range for soft tissue injuries alone".

  

   12. It is not apparent to me what
the "upper range for soft tissue
injuries" is. It is not the injury itself which sets the appropriate "range".
It is the injury,
its consequences in terms of symptoms, its effect on the
victim and its likely duration, as well as any other impact of the injury
on
the victim that sets the appropriate range. The reference to a range is only a
reference to that award which, in all the circumstances
of the particular
case, is recognisable neither as excessive nor as inadequate.

  

   13. It is, of course, to be expected that
where a spinal injury damages not
merely the musculo-ligamentous system, but also the spine itself, that there
will be the additional
trauma of an operation and the likelihood of
deterioration rather than recovery. It may be thought that a soft tissue
injury will
usually improve over time. That, indeed, was the evidence of some
medical witnesses in this case. However, it was not the view of
the
plaintiff's future which the Master accepted.

  

   14. This Court did allude to such a general expectation in Hebditch v
Sheppeard
(Supreme Court of the Australian Capital Territory, Gallop ACJ,
Higgins and Ryan JJ, 12 July 1996, unreported). The relevant passage
is cited
by Gallop J. In my view, it is important to emphasise the second, third and
fourth passages referred to.

  

   15. In
Hebditch, although the plaintiff, then aged 53 years, presented with
permanent and serious cervical damage treated without significant
success by
surgery, he received only $35,000 as an award for general damages. That was
regarded by the Full Court as inadequate.
An assessment of $55,000 was
substituted.

  

   16. By way of contrast, in Parkinson v Kuehnast (Federal Court of
Australia, Gallop,
Miles and Foster JJ, 20 December 1996, unreported) the
plaintiff had suffered a soft tissue injury to her neck. She had an already
degenerated neck. It could probably have been rendered less painful, if not
completely pain free, by an operation. That was not a
course which the
plaintiff wished to take. The award of $80,000 for general damages was
reduced; $40,000 was substituted.

  

 
 17. It is apparent that each case must be assessed primarily on the
individual circumstances of the case. A useful guide is, as
Gallop J stated in
the latter case:

  

  

   "(at 5) The proper award cannot be arrived at by adopting fixed limits. But
it is
proper for a judge to take notice of recent assessments made by other
judges of the same court in cases which bear a reasonably close
resemblance to
the case under consideration."

   18. Foster J noted that it was not a case of a simple whiplash type of soft
tissue
injury. His Honour reviewed the medical evidence and concluded that,
having regard to the disabilities attributed to the accident,
rather than
natural degeneration, $40,000 was appropriate.

  

   19. Allowing for the inevitable difference between cases, it is
clear to me
that the present case is not a simple whiplash type soft tissue injury. There
was no prior history of neck disability.
The plaintiff was relatively younger
and the disabilities more greatly affected the plaintiff's quality of life
than was the case
in Parkinson v Kuehnast.

  

   20. In my view, this plaintiff's level of pain, disability and loss of
enjoyment of life warrants
an award of $50,000. I would vary general damages
accordingly.

  

   21. I note that soft tissue injury awards over recent years,
all by the
Master, have varied between $20,000 and $60,000. See Wurth v Supler Pty Ltd
(Supreme Court of the Australian Capital Territory,
Master Connolly, 1
November 1996, unreported) and Redden v Forde (Supreme Court of the Australian
Capital Territory, Master Connolly
20 June 1997, unreported). The major
difference, as one might expect, is the impact, level and duration of the
pain, suffering and
loss of amenity suffered by the individual plaintiff.

  

   22. Accordingly, it is, in my view, erroneous to characterise $27,000
as
towards the upper end of the range for soft tissue injury to the cervical
spine.

   Past and future loss of earning capacity

  

   23. The plaintiff was employed as a consultant, primarily to government or
semi-governmental agencies. As particularised,
his claim was for approximately
$1,000,000.

  

   24. That claim could not be substantiated. There had been since the
accident
a noticeable diminution of the plaintiff's earnings. If it had been
possible to attribute that diminution to the accident alone and
to assume that
it was going to be permanent, some such claim may have been arguable. However,
it was apparent, first, that the plaintiff
could cope with work, practically
speaking on a full time basis, albeit with significant pain and discomfort and
some risk of being
less competitive than before. Secondly, it appeared that
there had, since the accident, been a considerable downturn in demand for
consultancy services of the kind provided by the plaintiff. This was the case
with his main client, the Australian Taxation Office.
It affected not only the
availability of contracts but also the hourly rates offered.

  

   25. Further the plaintiff had assessed
his own disability, after the
initial period up to December 1995, only at about one day's loss of time per
fortnight. At times he
could make up for time lost by working over a weekend.
It is difficult to understand, in these circumstances, why his claim was
framed
as extravagantly as initially it was.

  

   26. Mr Webb QC, for the appellant, did attempt a mathematical exercise to
show that
some figure of the order of $100,000 was appropriate for the past.
However, it is by no means clear that the assumptions underlying
that exercise
were established. Suffice it to say that the Master was entitled to take the
view that no such simplistic exercise
would accurately accommodate all
relevant variables, particularly as no attempt was made on behalf of the
plaintiff to address by
evidence any alternative hypothesis other than that
his entire diminution in earnings was due to the effects of his injury.

  

   27. It follows that the Master's conclusions at para 16 of his reasons,
concerning the plaintiff's work related disability, were
unassailable.

  

   28. The Master properly took account of the competitive disadvantage the
plaintiff had acquired by reason of
his disabilities but, in the absence of
more precise evidence than he had as to the nature and extent of that
disadvantage, I do
not see how the Master could have done otherwise than make
a discretionary assessment.

  

   29. The sum awarded, albeit inclusive
of interest, does not appear to be
inappropriate.

  

   30. As to the future, the only conclusion the Master could reach was that
the plaintiff's disability would continue into the future, albeit he might
"learn to live with it" more effectively than he had during
the pre-trial
period.

  

   31. Again, Mr Webb QC attempted a mathematical exercise to demonstrate that
about $90,000-$107,000
would be appropriate. That assumed complete continuity
of employment and an absence of development of coping skills or of
technological
developments easing his physical burden.

  

   32. None of those assumptions was validated by the evidence called. There
is nothing
to suggest that the Master's approach was inappropriate given the
uncertainty in the evidence offered. The sum of $50,000 may appear
generous
but no doubt took account of the view that if about $25,000 (excluding
interest) had been lost over the 4 years since the
accident, it was not
disproportionate to allow $50,000 (a discounted figure) for the period
post-trial to retirement.

  

   33.
In the result, therefore, I would uphold the appeal in part and vary
the sum for which judgment is to be entered to $148,084.20.

  

   34. The respondent should pay the appellant's costs of the appeal.

   CRISPIN J

  

   1. I agree with the reasons for
judgment of Higgins J and the Order he
proposes.