Hellsing v British Aerospace Australia Ltd [2001] ACTSC 98 (17 October 2001)

Last Updated: 14 May 2002

STIG HAKAN HELLSING v BRITISH AEROSPACE AUSTRALIA LIMITED [2001] ACTSC 98 (17 October 2001)

CATCHWORDS

APPEAL AND CROSS APPEAL - assessment of damages - whether respondent estopped from disputing total incapacity during a period prior to trial by reason of award under Workers' Compensation Act 1951- whether components for past and future economic loss adequate - whether amount awarded for general damages excessive - overall amount awarded within range of reasonable discretion.

Workers' Compensation Act 1951, ss 6(1), 7(1), 7C, Sch 1

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Westlin v PDC Constructions (unreported, ACT Supreme Court, 26 July 1991)

Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285

Meskenas v British Paints (Australia) Pty Ltd [1964-5] 2 NSWR 1640

Lombardo v Stuart Bros Pty Ltd (1967) 68 SR (NSW) 159

Egri v DRG Australia Ltd (1988) 19 NSWLR 600

No. SCA 84 of 2000

Judges: MILES CJ, CRISPIN & RYAN JJ

Supreme Court of the ACT

Date: 17 October 2001

IN THE SUPREME COURT OF THE )

) No. SCA 84 of 2000

AUSTRALIAN CAPITAL TERRITORY )

On appeal from the Master

BETWEEN: STIG HAKAN HELLSING

Appellant/Cross-Respondent

AND: BRITISH AEROSPACE AUSTRALIA LIMITED

(ACN 066 676 579)

Respondent/Cross-Appellant

ORDER

Judges: MILES CJ, CRISPIN and RYAN JJ

Date: 17 October 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal and cross appeal be dismissed.

2. Each party pay his or its own costs.

IN THE SUPREME COURT OF THE )

) No. SCA 84 of 2000

AUSTRALIAN CAPITAL TERRITORY )

On appeal from the Master

BETWEEN: STIG HAKAN HELLSING

Appellant/Cross-Respondent

AND: BRITISH AEROSPACE AUSTRALIA LIMITED

(ACN 066 676 579)

Respondent/Cross-Appellant

Judges: MILES CJ, CRISPIN and RYAN JJ

Date: 17 October 2001

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a judgment of the Master pronounced on 8 December 2000 when the appellant was awarded damages of $342,989.13 and costs.

2. The appellant had been employed at the Tidbinbilla Tracking Station since late 1984. The station was administered initially by AWA, but from 1990 by the defendant, British Aerospace Limited. After about a year at the Tidbinbilla Tracking Station the appellant was promoted to team leader. In 1987, he was transferred to the Deep Space Tracking Program and was required to work in the main operations room at the base of the main antenna building.

3. He worked rotating day, afternoon and night shifts with one seven day week on each shift and one week in four off work. The shiftwork attracted penalty rates which increased the appellant's take-home pay to a level considerably above that of the base rate for a technician, which was the classification in which Mr Hellsing had been engaged.

4. In 1990, he became second-in-charge of his shift team and was required to work under a different shift supervisor who, the appellant alleged, was frequently, or normally, affected by liquor and accustomed to sleep four to five hours out of the eight hours of the night shift. This conduct, the appellant said, transferred to him full responsibility for making decisions on the shift. As a result, he requested a transfer to another shift team but was told to "hang in there". However, the supervisor's conduct deteriorated between 1991 and 1993 and the appellant attributed interruptions to his own sleeping patterns, increased irritability and physical symptoms such as boils, frequent bouts of diarrhoea and tinnitus to stress caused by the supervisor's conduct. Despite repeated requests for a transfer out of the supervisor's shift, the appellant remained on that shift until about August 1993 when he was moved to another team.

5. Before Christmas 1993, the appellant applied for one of the redundancy packages which was then on offer from British Aerospace. In February 1994 his application was approved and he was informed that the redundancy was to become effective later in 1994. However, in March of that year, the supervisor retired from the facility and that, the appellant said, prompted him to reconsider his future and apply to relinquish the redundancy package. He was told that the redundancies had been settled and he could only withdraw his application if another employee came forward to accept redundancy.

6. In the event, another employee, who was on permanent day shift, elected to be made redundant and the appellant was offered and accepted his position which entailed loss of the shiftwork penalties which the appellant had formerly received. That immediately aroused feelings of anger in the appellant who said that, as a result, he had "some sort of a breakdown". After attending his local doctor, he was given two weeks off work on account of stress. He then continued to work until March 1995 when he accepted another redundancy package. In the meantime, he had suffered recurring health problems with intermittent absences from work attributable to stress. He had also taken the opportunity to fill temporary vacancies on the shift roster and had been given to understand that he could apply for appointment to a permanent shift-work vacancy when one arose.

7. The appellant's acceptance of a second redundancy package coincided with what would have been the start of long service leave and he undertook an extended trip to Europe with his family during which his children were enrolled in a Swedish school where they remained until the end of 1995. The appellant considered obtaining, but did not engage in, employment in Sweden and returned to Australia with his family at the beginning of 1996. Thereafter, he claimed, he was unable to contemplate full-time work and did not apply for any positions of that kind. The Master found at [31]-[32] that:

He remains physically fit, and has done jobs on his home and an investment property . . .

He has had some informal part time employment for short periods, working in a plant nursery for a couple of months in 1996, and on a casual basis as an assistant in a gift shop owned by some friends in 1997. He has made an application for workers compensation benefits, and on 12 November 1998 Magistrate Burns made the finding that the plaintiff has been totally incapacitated for work since March 1995.

8. At the hearing, the respondent admitted a breach of a duty of care owed to the appellant and the Master proceeded to assess damages on the basis that the appellant had been exposed to stress as a result of being placed under inadequate or incompetent supervision. No complaint is made about the Master's adoption of that approach.

9. In his reasons the Master examined an extensive body of medical evidence and rejected as misconceived expressions of opinion that the appellant suffered from post-traumatic stress disorder. The Master explained his rejection of that diagnosis by saying at [41]:

The diagnosis of post traumatic stress disorder is frequently made in the aftermath of an accident, and it has been made in this case in circumstances where it is clear that there has been no exposure to trauma. The apparently loose use of this term is a matter of some concern. I am satisfied that, whatever psychiatric condition the plaintiff may suffer from, it is not post traumatic stress disorder, and yet this diagnosis, clearly inappropriate, was made in reports by a clinical psychologist and a consultant psychiatrist.

10. After referring to further expressions of medical opinion, the Master concluded at [49]- [51]:

I am left with a sense of disquiet over the medical evidence in this case. The material tendered by the plaintiff frequently refers to post traumatic stress disorder, which is clearly inappropriate. While a general picture of a depressive illness emerges, the precise mechanism whereby the admitted breach of duty, which ended when [the supervisor] ceased to have contact with the plaintiff, could produce the claimed symptoms, which seemed only to become so acute as to require time off work following the disagreement over the redundancy, is not set out. On the other hand, the defendant's medicine suffers the flaw that the diagnosis of personality disorder is as inappropriate as post traumatic stress disorder, and it contains no material to contradict the asserted link between the inappropriate supervision and the onset of the depressive condition.

Despite this, I am satisfied on all of the evidence on the balance of probabilities that the plaintiff suffers from a depressive illness, and that the depressive illness was brought on by the circumstances in the space tracking station in the mid 1990's as particularised as a breach of duty of care. I am satisfied that, on the evidence of the plaintiff, which was uncontradicted, the defendant has failed to provide a safe system of work by subjecting the plaintiff to the highly inappropriate supervisory regime.

It is apparent that much of the plaintiff's dissatisfaction and stress also derives from the circumstances of the redundancy. It must be recalled that by this time the inappropriate supervisor, [the supervisor], was gone, and the plaintiff acknowledges that there was no other external stressor at this time. It is clear that he feels a sense of grievance in that he was unable, when he changed his mind about taking a redundancy, to be offered his old position, which carried a significant shift work bonus, but instead had to take up a position on day shift. I do not think that this gives rise to any tortious liability.

11. The Master then turned at [52] to consider whether a finding by the Magistrates Court that the appellant was entitled to workers' compensation payments on the basis of total incapacity created an issue estoppel precluding the respondent from denying that the plaintiff's incapacity had been caused by its own negligent failure to provide a safe system of work. The operation of an issue estoppel of that kind was rejected and the Master identified the issue before him as being "to determine the extent of the harm caused to the plaintiff, the extent of incapacity flowing from this harm and to assess how this sounds in damages."

12. The Master then expressed himself at [61] as satisfied on all of the evidence that the admitted breaches of duty of care had caused a significant psychological injury to the appellant which could more properly be described as a major depressive disorder. That, the Master considered, had led to the symptoms described by the appellant and the various medical witnesses. In the same context, at [66], the Master concluded that "the pleaded breach of duty of care admitted in this matter has, I am satisfied, had the effect of inducing in the plaintiff a significant psychiatric condition of depression." The complaint of tinnitus was treated as part of the appellant's psychiatric condition.

13. It was next observed at [64] that the medical evidence overwhelmingly supported a link between the appellant's "highly unusual work environment" and the development of a psychiatric condition. It was further accepted that it was reasonably foreseeable that the unusual environment could cause psychiatric harm to an employee. As well, the Master found that the appellant continues to experience the effects of the psychological injury which had been attributed to the respondent's breach of a duty of care. As to the appellant's prognosis, the Master made these findings at [69]-[70]:

There is a divergence of view on the long term impact of his psychological condition. On the most pessimistic view he may never recover, and accordingly may never work again. This is difficult to reconcile with his presentation over two days in the witness box, where he gave evidence in a coherent and logical manner, dealing effectively with cross examination and recounting an often complex history extending over many years. It is also difficult to fit with his acknowledgment of his daily activities, which were summarised by counsel for the defendant as fitting the role of "house husband" while his wife works in her profession. The plaintiff acknowledged that he daily takes the children to school and picks up as required, shops and undertakes the routine work of household cleaning and maintenance. He also performs garden tasks, and has been able to undertake work, not only on his home, but on two investment properties. He uses the computer at home from time to time, scanning the internet and playing games.

His counsel acknowledged that this may well be [a] case where the resolution of the legal proceedings may have a beneficial outcome on the plaintiff. I am of that view. Taking all of the psychiatric evidence into account, and also taking into account the plaintiff's presentation over two days of evidence and his acknowledgment of his levels of functionality, I am satisfied that his condition, once it is clearly acknowledged that the inappropriate supervision at the tracking station has been the cause of his present psychiatric illness, will begin to resolve under appropriate treatment.

14. The Master assessed general damages in an amount of $90,000, explaining that assessment in these terms at [71]:

In relation to general damages, I assess the plaintiff on the basis that his employment created such stress as to cause him to develop symptoms of a significant depressive illness, which developed during the early 1990's and has remained present since, but which will, with the resolution of his case and the acknowledgment of the wrong done to him, move to resolution. I assess general damages in the sum of $90,000 with $70,000 attributable to past loss, generating interest of $13,500 assuming his symptoms emerging to significant levels in about the middle of 1993 as is supported by the evidence.

15. The learned Master then accepted in full the appellant's claim of $20,880.13 for out-of-pocket expenses and, as far as future out-of-pocket expenses were concerned, made this assessment at [73]:

Future out of pocket expenses were claimed and particularised at around $325 per month for the rest of his life. I am not satisfied that his condition is permanent and will not eventually resolve, and I am not satisfied that this claim is made out in full. This seems to me to be a case where, once the litigation is resolved, some intensive therapy by way of psychological counselling and psychiatric treatment is appropriate and should bring about considerable resolution. It seems to me that this is an appropriate case for a buffer award for future treatment, sufficient to ensure that the plaintiff is fully resourced to go about putting his life back together after this matter is resolved. I award the sum of $10,000 for future treatment expenses.

16. The Master accepted a claimed loss of past earnings which had been quantified in a schedule submitted by consent in the sum of $235,937. However, he reduced the figure for past economic loss to $150,000, to which was added a Fox v Wood component of $19,366.02. The appellant was accepted as having an ongoing incapacity which precluded him from engaging in space-tracking or telecommunications work. However, the Master said at [77]:

I am satisfied, however, that he does have an ongoing capacity for other work, and that he has had this capacity from the time he resigned from the tracking station, at a time when he had been working in his demanding role, and when he had indeed had some periods of acting in a shift role. I am not persuaded on all of the evidence of the pessimistic views of some doctors in the plaintiff's case. Mr Cole, the psychologist who examined him for the defendant, found that he could work full time in any capacity, and Dr Haik reported that, in his view, the plaintiff is unwilling to apply himself to another job.

17. As to future loss of earnings, the Master went on to say, at [80]:

The future loss claim is particularised as a claim for a loss of full earnings until retirement age, being a claim for $555,222 less 15% for vicissitudes. It follows from my findings above that I am not satisfied that the plaintiff is incapacitated from any work, and indeed while I have found that his illness has prevented him to date from returning to technical employment, I am satisfied on the balance of probabilities that his condition will improve, and he will be able to fully utilise his skills, and I find that Mr Cole's prognosis is appropriate for the future. This seems to me to be a case where I should allow an award to reflect a present diminished economic capacity gradually increasing to a full capacity over a period of some years. Taking into account what the Full Court said in Fry v McCufficke [1998] 1499 FCA, this seems to be an appropriate case for a buffer award for future economic loss. An award of $50,000 seems to me to be appropriate.

18. In conclusion, the Master indicated that any loss that might have been incurred as a result of the appellant's inability to accrue superannuation between 1996 and the date of trial had been included in the global award for past economic loss.

19. Mr Tilmouth QC, who appeared on the appellant's behalf with Mr Meagher, submitted that the Master had erred in his approach to the assessment of past economic loss.

20. The appellant had contended that the appropriate measure of damages for the loss sustained during the period between the termination of his employment and the date of judgment was the amount that a comparable employee would have earned during this period. The Master found that such an employee would have earned $235,000 net of taxation but said that it would have been inappropriate to award that amount for the loss of earning capacity during that period. He found that the appellant had had a significant residual capacity for other work and, whilst the amount of $235,000 had been earned by a person undertaking shift work, the appellant had lost that opportunity when redeployed after a last minute withdrawal of his acceptance of a redundancy offer. Both these propositions were challenged.

21. Mr Tilmouth submitted that the Master should have found that the appellant had been totally incapacitated for work. He argued that not only had there been a preponderance of expert medical opinion to that effect but that the respondent had been estopped from denying such incapacity at least in relation to a substantial portion of the period by reason of the findings made by Magistrate Burns in support of an award of workers' compensation on 12 November 1998 and consent orders made upon the appeal from that decision apparently on 19 August 1999.

22. The claimed issue estoppel was said to preclude the respondent from disputing the following matters of fact:

(i) that the appellant was an employee of the respondent;

(ii) that the appellant suffered a stress-related illness as a consequence of his employment;

(iii) that the appellant had been totally incapacitated for work from 1 April 1995 until the date of the workers' compensation award and from then until an appeal was settled by a consent order made in this Court on 19 August 1999.

23. The workers' compensation award, as varied by the consent orders made on 19 August 1999, included the following findings:

A. That the applicant was, at all material times, a worker within the meaning of Section 6(1) of the Workers' Compensation Act 1951 ("the Act")

B. That the respondent was at all relevant times the employer of the applicant.

C. That the applicant suffered a stress related illness as a consequence of his employment with the respondent.

and that -

The worker has been totally incapacitated for work from 1 April 1995 except as follows:

(a) For a period of 2 months during 1996 when the worker was employed at a nursery during which period he was partially incapacitated and entitled to compensation on that basis;

(b) For a period of 4 weeks during January 1997 when the applicant was renovating an investment property and is not entitled to compensation;

(c) For a period of 2 months between March and May 1997 when the worker was employed in a gift shop and is entitled to compensation on the basis that he was partially incapacitated during this period;

Further the worker is not entitled to any weekly payments of compensation for a period of 12 weeks between May and August 1995 when he was overseas following receipt of a redundancy package.

24. There has been no dispute at first instance or on appeal that the appellant was at all relevant times an employee of the respondent. It is therefore unnecessary to consider the asserted fact numbered (i) which is set out in [22] above. However, the issue in a common law action whether an employee's incapacity has resulted from an employer's breach of a duty of care may differ from the issue in a workers' compensation claim of whether an employee has been incapacitated as a result of an injury arising in the course of employment. In the present case, one of the issues actively agitated before the Master was whether the damage caused to the appellant by the admitted breach of duty ceased after the appellant had been transferred from the supervisor's supervision. That was clearly not an ultimate question of fact which arose for determination in the workers' compensation proceedings.

25. Section 7(1) of the Workers' Compensation Act 1951 provides;

Where a worker suffers personal injury arising out of or in the course of the Worker's employment, the employer is liable to pay compensation in accordance with Schedule 1.

26. "Injury" is defined in s 6(1) of the same Act as meaning "any physical or mental injury (including stress)" and "includes aggravation, acceleration or recurrence of a pre-existing injury." Clause 1 of Schedule 1 to the Workers' Compensation Act stipulates, so far as is relevant, that:

The amount of compensation shall be -

. . .

(b) where the worker is totally incapacitated for work by the injury, in respect of the period of the Workers' incapacity -

(i) $57 for each week, and a proportionate amount for each additional day;

. . .

(c) where the worker is partially incapacitated for work by the injury - a weekly payment during his or her incapacity -

(i) of the amount (if any) by which the weekly amount that he or she is earning, or is able to earn in some suitable employment or business, after the injury is less than his or her weekly pay at the date of the injury, or of the amount of $57, whichever is the less; or

(ii) of the amount (if any) by which the weekly amount that he or she is earning, or is able to earn in some suitable employment or business, after the injury is less than the weekly amount that would have been payable to him or her under paragraph (b), if he or she had been totally incapacitated;

whichever is the greater.

27. The concept of total incapacity for the purposes of the Workers' Compensation Act has been extended by s 7C which provides;

(1) For the purposes of this Act, a worker shall be deemed to be totally incapacitated if -

(a) a medical practitioner certifies that the worker is partially incapacitated;

(b) the partial incapacity prevents the worker from performing the duties he or she performed before becoming incapacitated;

(c) the employer cannot provide appropriate alternative employment; and

(d) the worker cannot find appropriate alternative employment.

(2) For the purposes of subsection (1), a worker shall be taken to be totally incapacitated from the time at which he or she became partially incapacitated until 1 of the following occurs:

(a) the worker becomes totally incapacitated;

(b) the employer provides the worker with appropriate alternative employment;

(c) the worker finds appropriate alternative employment.

28. It will be seen from that section that a finding of total incapacity could be made under the Workers' Compensation Act in circumstances where only a finding of partial incapacity to work could be made at common law. Accordingly, the issue of fact which was determined in the workers' compensation proceedings was not necessarily one of "those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established", per Dixon J in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532.

29. We are confirmed in this conclusion by consideration of some of the cases in which issue estoppel has been examined in this context. Those cases, which were carefully collected by Master Hogan in Westlin v PDC Constructions (unreported, ACT Supreme Court, 26 July 1991), included Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285, Meskenas v British Paints (Australia) Pty Ltd [1964-5] 2 NSWR 1640; Lombardo v Stuart Bros Pty Ltd (1967) 68 SR (NSW) 159 and Egri v DRG Australia Ltd (1988) 19 NSWLR 600. In the last mentioned case, Clarke JA said, at 609 - 610;

Furthermore ultimate findings of the Compensation Court, notwithstanding that they are essential to the award, may well be irrelevant to the issues in a common law claim for damages between the same parties. For instance, a finding that a worker was partially incapacitated within the meaning of the Workers' Compensation Act, during a specified period, would arguably not require that in later proceedings a tribunal of fact, be it judge or jury, assess damages for impairment of earning capacity in the past upon some restricted basis. Questions of partial or total incapacity under the Workers' Compensation Act are not in strictness in issue in damages proceedings. It is no doubt relevant in both cases to show that a plaintiff suffers from a disability or has lost some work capacity but in an assessment of damages the issues are whether his earning capacity has been impaired and, if so, what sum affords adequate compensation for the loss which that impairment has caused him. These issues require a consideration of many factors including the degree of disability, the Workers' industrial background and education, mitigation of damages including attempts to obtain work and the state of the labour market generally.

Likewise, it is at least arguable that a finding of total incapacity in the Compensation Court is incapable of sustaining a relevant estoppel in a damages claim arising out of the same work injury. It is unnecessary to elaborate further as the point I am seeking to emphasise is that the Compensation Court is concerned with markedly different ultimate issues than is the court assessing damages for tortiously inflicted injuries.

30. For these reasons, we consider that the learned Master was correct in holding that no issue estoppel arose from the determination of the workers' compensation proceedings either by the Magistrate, or by consent on appeal, to prevent him "from undertaking the appropriate enquiry to determine common law liability". Accordingly, it was necessary for him to consider this issue afresh.

31. As Mr Tilmouth pointed out, there was medical evidence to suggest that the appellant would have been totally incapacitated from work during the relevant periods. However there was other evidence which militated strongly against that conclusion. The Master found that the appellant was physically fit and there was evidence relating to his activities which provided support for that view. Furthermore, whilst the particulars of disabilities had included a reference to some physical problems it did not suggest that those problems had, of themselves, caused substantial incapacity. As mentioned earlier the appellant and his family had planned to spend some six months in Europe and subsequently extended their stay until the end of the year. The appellant said that he had intended to find some employment but, "all of a sudden" experienced difficulties in sleeping and found that he "couldn't concentrate on the job" and that he "started thinking about Tidbinbilla". He and his family returned to Australia at the beginning of 1996. The Master found that since then the appellant had not formally applied for any full-time job and that he had claimed to be unable to contemplate work. However, he had engaged in part-time employment for short periods, working in a plant nursery for about two months in 1996 and as an assistant in a gift shop in 1997. He had also done some work on his home and an investment property. Mr Cole, a clinical psychologist, had said in a report dated 14 July 2000 that from a psychological perspective the appellant had been fit for work and should be able to be employed full-time provided he could obtain a job.

32. The Master also found that much of the appellant's dissatisfaction and stress derived from the circumstances following the earlier offer of the redundancy. The supervisor, whose behaviour had apparently caused the appellant's psychological condition, was no longer his supervisor at the time and the appellant acknowledged that there had been no other external source of stress at this time. The Master observed at [51] that it was clear that the appellant felt a sense of grievance about the fact that he had been unable to regain his old position when he had changed his mind about the redundancy and had had to accept a position on the day shift which did not provide the same income.

33. Mr Tilmouth submitted that the Master should have found that the appellant's initial decision to accept the redundancy offer was attributable to the psychological condition brought about by the supervisor's behaviour. However the Master made no finding to that effect and we are not satisfied that it was incumbent upon him to do so. The appellant had accepted the offer on the condition that the redundancy agreement would stand even if he gave one month's notice of resignation at any time prior to the then uncertain termination date. In his letter of 14 February 1994 he explained that without having a fixed termination date to go by, it would have been very hard for him to "seriously" look for another job as he would not have been in a position to commit himself to a starting date if a new job had been offered. When asked to explain why he had included the latter comment in the light of his evidence about the symptoms he had claimed to be suffering from at that time he said:

The explanation is that part of me wanted to leave Tidbinbilla because I felt sad - very sad about what had happened after sixteen years in the space tracking industry. The other part was that I thought I could force myself to get another job, and I thought that would have been in my interest. But also I - believe it or not, I like space tracking so I was right between the two options. And as it turned out I - I did not apply for a job

But this is a pretty serious situation for you Mr Hellsing, here you are committing yourself to a course you believe on the basis of some symptoms which are caused, you think by your work. You're uncertain about the redundancy and you don't even bother to go and see a doctor about it at that time? That's correct.

And you have no explanation. You shake your head to indicate no, you didn't . . .?

34. It is true that the appellant also said that he had initially asked for redundancy because of the effect that the supervisor had had upon him over the years. However, the issue was not whether the decision had been prompted by the appellant's sadness at what had occurred but whether it had been caused by the respondent's tortious conduct. It was not established that the decision reflected a flight from the risk of further psychological harm, recognition of an existing incapacity or any other matter capable of establishing causation in any relevant sense.

35. In any event, it was plainly open to the Master to reject the appellant's claim that he had been totally incapacitated during the relevant period due to the psychological condition caused by his supervisor's behaviour.

36. We also see no reason to doubt the adequacy of his assessment that the sum of $150,000 would fairly compensate the appellant for the degree of incapacity which he found had been caused in that manner.

37. The Master's assessment of future economic loss was influenced by his view that the appellant was likely to recover from his psychological condition within a reasonably short period after the resolution of his claim.

38. As mentioned earlier, the Master said that the appellant's counsel had acknowledged that this may well be a case where the resolution of the legal proceedings would have a beneficial outcome on the plaintiff. Mr Tilmouth maintained that the counsel who then appeared for the appellant had not made the acknowledgment suggested. Since the complete transcript has not been incorporated into the appeal book we are unable to finally determine this issue. However, it is clear that counsel had referred to medical reports including observations that the appellant had been obsessed about the case and had added: "You may or may not form the view that those are matters that will be - that will reduce in terms of their impact on him after the case." Furthermore, whatever the accuracy of the statement attributed to counsel, it is clear that the Master relied upon his own view of the matter based upon the psychiatric evidence, the appellant's presentation in the witness box and admissions as to his levels of functionality. Accordingly, whilst we are prepared to accept that the approach taken in the proceedings before the Master should not prevent the appellant from raising the issue on appeal, we do not accept that the Master's finding was based on the suggested acknowledgment.

39. Mr Tilmouth also submitted that the finding was contrary to the preponderance of medical evidence. As he pointed out, there was a considerable body of evidence to suggest that the appellant's condition was likely to be permanent or at least of indefinite duration but, on the other hand, there was also evidence to support the Master's finding. Mr Zagonski, a psychologist, had expressed the opinion that the appellant seemed to believe that the most appropriate way of dealing with his past trauma would be through the justice system rather than therapy, and that "achieving justice would have a significant healing effect on him". A general practitioner, Dr Turtle, who had been treating him since February 1998 said, in a report dated 20 October 1999:

. . . the ongoing stress of the dispute over the liability of the Workers' Compensation claim is certainly a significant negative factor and it is to be hoped that, once this matter is finally, fully and hopefully justly settled, Mr Hellsing may well be able to make a more effective recovery.

My opinion is that there should be some reduction of the degree of symptoms that are current, but that it may take many months and even years to stabilise and that Mr Hellsing will probably be left with a mild to moderate degree (ie of 25% to 50 % of current levels) of permanent but varying symptoms of anxiety, depression, sleep disorder and fatigue. He should (probability > 75 %) be able to return to some form of part time work within 6 to 18 months of the closure of all current medicolegal actions. He should (probability about 50%) be able to return to some form of full time work within 12 - 36 months after such closure.

40. It is true that Dr Turtle had diagnosed a post traumatic stress disorder and that the Master had found that this diagnosis had been inappropriate. However, he did not find that Dr Turtle's assessment of the gravity or likely duration of the appellant's condition had been incorrect. He said rather that the diagnosis of post traumatic stress disorder demonstrated "the difficulties of the widespread loose use of this term".

41. The Master was also entitled to rely to some degree upon his own assessment of the appellant. Mr Sutton, a clinical psychologist who thought it would be impossible for the appellant to return to gainful employment, explained that the major impact of the appellant's emotional state had been on his "working memory" and "verbal memory capacities". We think that the Master, having had the opportunity of hearing the appellant give evidence over a period of some hours, was well placed to make an assessment of these matters. Similarly, Dr Swift, a consultant psychiatrist who said that the appellant was totally disabled, explained there had been a severe impairment of his organisation, decision making and learning abilities. Again, we think that the Master was well placed to make a judgment about these matters. It is true that Dr Veness had expressed the view that, whilst the appellant's presentation might lead one to expect that he would recover quickly, this was really "just part of his personality and cultural background" and he was unlikely to be cured. However, the Master was not obliged to accept the validity of this opinion.

42. It was, of course, incumbent upon the appellant to prove the extent of his disability. Having apparently considered all of the evidence relevant to this issue including his own impressions of the appellant in the witness box, the Master was not satisfied that his psychiatric condition, however described, would be permanently disabling. In our opinion the appellant has failed to demonstrate that in reaching that conclusion the Master fell into appealable error.

43. Mr Tilmouth also submitted that, in any event, the Master had erred in allowing only $50,000 for future economic loss. He argued that the Master should have approached the matter by calculating damages based upon the income of the "comparable" employee at the time of the trial calculated by reference to the usual discount rate until the date of the appellant's 65^th birthday when he had intended retiring and subject to a reduction of 15% to allow for what have been described as the normal vicissitudes of life.

44. There are two obvious answers to this contention. The Master found, and in our view was entitled to find, first, that the appellant had not suffered a total loss of earning capacity as a result of the tortious conduct upon which his claim was based and, second, that he was likely to make a significant recovery once the litigation had been completed.

45. In the alternative, Mr Tilmouth submitted that the amount of $50,000 was an insufficient "buffer" to compensate the appellant for future economic loss. He submitted that this amount represented scarcely more than one year's net income for a person in the position of a comparable employee and that it had been unreasonable to assume that the appellant's loss would be so limited.

46. However, this submission was plainly predicated upon the assumption that the appellant had established an ongoing loss due to the tortious conduct of the respondent equal to the net income of a comparable employee. That allegation had been rejected by the Master for the reasons mentioned earlier. Consequently, there is no valid basis for regarding the sum of $50,000 as only marginally more than one year's income for the appellant.

47. We accept that the amount awarded was, nonetheless, at the lower end of the range reasonably available to the Master but are inclined to think that it was not so low as to demonstrate that his discretion miscarried. Similarly, we are not satisfied that the Master's approach to the components of damages for superannuation and future medical costs has been shown to involve any inappropriate exercise of discretion.

48. The respondent cross-appealed against the Master's finding that it was appropriate to award the sum of $90,000 for general damages with a component of $70,000 attributable to past loss. Mr Stretton submitted that this was plainly excessive. He pointed out that the symptoms had apparently emerged about the middle of 1993 but that the appellant had consulted a medical practitioner only once in that year and even when he saw Dr Davis during the following year the condition had not been sufficiently severe to require the prescription of anti-depressant medication. There had been no evidence of any subsequent medical consultation for a further period of some 16 months, most of which the appellant had spent overseas. Whilst not disputing that the psychological illness would have been a source of considerable distress to the appellant between 1996 and the time of the trial, he submitted that the Master had been correct in his finding that the condition was likely to improve substantially following the conclusion of the litigation. Mr Stretton submitted that smaller sums had commonly been awarded for general damages in cases in which plaintiffs had suffered serious physical injuries as well as depression or other psychological symptoms comparable to those experienced by the appellant. He submitted that an amount equal to about half of the sum awarded by the Master would have been appropriate.

49. In contrast to the amount allowed for future economic loss we regard the amount awarded for general damages as being at the top of the range reasonably available to the Master but are again inclined to think that no error of discretion has been established.

50. Furthermore, we are satisfied that, even if there were grounds for disputing particular components, the overall amount of damages awarded by the Master was well within the range of discretion reasonably available to him and that no basis for disturbing that award has been demonstrated.

51. The appeal and cross-appeal will both be dismissed.

52. In the circumstances we think it is appropriate that each party pay his or its own costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:

Date: 17 October 2001

Counsel for the Appellant: Mr S Tilmouth QC with Mr B Meagher

Solicitor for the Appellant: Capital Lawyers

Counsel for the Respondent: Mr G Stretton

Solicitor for the Respondent: Mallesons Stephen Jaques

Date of hearing: 12 June 2001

Date of judgment: 17 October 2001