Baxter v Insurance Australia Ltd
[2015] ACTSC 273
•8 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Baxter v Insurance Australia Limited |
Citation: | [2015] ACTSC 273 |
Hearing Date: | 20 May 2015 |
DecisionDate: | 8 September 2015 |
Before: | Mossop AsJ |
Decision: | See [39] |
Category: | Principal Judgment |
Catchwords: | PERSONAL INJURY – Motor vehicle accident – assessment of damages – appeal by way of rehearing – consideration of reliability of evidence of plaintiff at trial – consideration of reliability of expert medical opinion where opinion based substantially on complaints and history provided by plaintiff – appropriateness of reference to and consideration of earlier decisions in assessment of general damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 99 Court Procedures Rules 2006 (ACT) |
Cases Cited: | Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 Davies v Grgic [2006] ACTSC 14 Vulin v Cox [2005] ACTCA 22 |
Parties: | Tristan Baxter (Appellant) Insurance Australia Limited t/as NRMA Insurance (Respondent) |
Representation: | Counsel Mr S Pilkinton SC (Appellant) Mr K Rewell SC (Respondent) |
| Solicitors Blumers Personal Injury Lawyers (Appellant) HWL Ebsworth (Respondent) | |
File Number: | SCA 107 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 27 November 2014 Case Title: Baxter v Song & Anor Court File Number: CS 715 of 2013 |
Introduction
This is an appeal against a decision of a Magistrate who was assessing damages arising out of a motor vehicle accident. The appellant was the plaintiff below. The hearing took place over four days in May and September 2014. The judgment was given on 27 November 2014.
The grounds of appeal that were pursued are as follows:
His Honour erred in:
a.assessing general damages at $20,000 given his findings about the impact of the accident on the plaintiff;
b.calculating interest on past general damages given his error as to the correct level of general damages;
c....
d.calculating a buffer for future economic loss of only $5,000 given his findings about the Appellant's capacity for work, the Appellant's training and experience for work and given the impact of the accident on him;
e.failing to have regard to the evidence of Dr Le Leu and Dr McBurnie in his assessment of damages such evidence being relevant to general damages, interest on general damages, future out of pocket expenses and future economic loss;
f.failing to give adequate reasons in his assessment of damages such evidence being relevant to general damages, interest on general damages, future out of pocket expenses and future economic loss. [sic]
Nature of the appeal
The appeal is an appeal by way of rehearing. The required approach to such an appeal is summarised in Urbaniak-Bak v Prail [2014] ACTSC 171 at [51]-[54].
The decision below
The appellant and another person were passengers in a motor vehicle which was involved in a collision while travelling along the Tuggeranong Parkway on 30 August 2012. Liability was admitted and hence the proceedings involved only an assessment. His Honour identified the medical evidence in the case as:
(a)two medical reports of Dr Leon Le Leu, an occupational physician, dated 27 April 2013 and 14 June 2013;
(b)a medical report dated 21 October 2013 and oral evidence from Dr Peter Burgess, an orthopaedic surgeon;
(c)two medical reports of Dr Sandra McBurnie, a consultant occupational physician, dated 18 January 2013 and 31 March 2014.
His Honour recorded that the other evidence that was given was the oral testimony of the appellant as well as of a witness, Paul Muscat. Mr Muscat was a supervisor employed by the appellant’s former employer, Capital Fine Print.
Much of the hearing time was taken up with cross examination of the appellant. His Honour made detailed findings in relation to the submissions made by the respondent as to the reliability of the appellant’s evidence. Having dealt specifically with the submissions made by the respondent his Honour said:
9. Whilst I do reject the particular criticisms of the plaintiff Baxter to which I have just referred, and even though I have made generous allowance for the personal circumstances of Mr Baxter in assessing his evidence, I do find myself in general agreement with the submissions of Mr Pappas for the defendants when he says Mr Baxter was an unimpressive witness.
10. There were a number of aspects of the evidence of the plaintiff Baxter which lead me to that conclusion. They include the following:
a. The evidence of occasional debilitating back spasms is not supported by evidence of any observations to that effect by Ms Nitschke or by the former supervisor Mr [Muscat] or by any reports to that effect by Mr Baxter to any medical practitioner. In the circumstances the claim of such spasms seems highly unlikely.
b. There was significant retreat by the plaintiff Baxter in his evidence about the time off work he took as a result of the accident.
c. Mr Baxter conceded under cross examination that the circumstances under which he came to leave his employment as a landscape labourer were not as he had originally described in his evidence in chief.
d. What the plaintiff Baxter says about being prescribed heavy painkillers is not supported by other evidence as one would expect it to be.
e. The plaintiff Baxter did display behaviour associated with being evasive and self-serving in answering questions, including taking a long time before answering questions the nature of which did not strike me as requiring lengthy consideration.
11. As I have said I have made allowance for the particular personal circumstances of Mr Baxter as well as the usual factors such as the dimming of memory over time and the understandable desire of a plaintiff to see that their case is presented at its highest. But even making allowance for those factors the conclusion I reach is that at times the plaintiff Baxter was not being entirely truthful and that at times he deliberately either exaggerated or understated his evidence according to his perception of what best suited his case.
His Honour then turned to identifying his findings in relation to the nature and effect of the appellant’s injuries. His Honour observed that the conclusion that he reached about the reliability of the appellant’s evidence “presents some difficulties in assessing the true extent of the injuries suffered by him and the effects of them, especially against the background of the expert medical opinion relying heavily, as it usually does, on the history given by the plaintiff to the medical expert”: see Reasons [13].
His Honour then addressed and rejected a submission made by the respondent that the evidence of Dr Burgess should not be accepted because he had been in clinical practice for a long time. However his Honour did record that the doctor had displayed “a reluctance to countenance certain propositions put to him which did not inspire confidence in his objectivity”. His Honour recorded that because of the conclusion that Mr Baxter was not entirely truthful that affected the reliability of the history upon which the doctor based his opinion and therefore his Honour’s view of his expert evidence: Reasons [14].
The balance of his Honour’s reasons was as follows:
15. The findings I make in relation to injuries suffered by the plaintiff Baxter, the impact of those injuries upon him and the prognosis are as follows:
a. The plaintiff Baxter suffered a minor soft tissue injury to his neck causing stiffness and low-level neck and shoulder pain which settled within one week after the accident.
b. The plaintiff Baxter also suffered a soft tissue injury to his back in the mid thoracic - upper lumbar area. No significant structural damage was caused. The degenerative changes in the spine shown on medical investigation are age related and not caused by the accident.
c. The effects of the soft tissue injury to the plaintiff Baxter's back are that he has and continues to suffer occasional low level pain caused by prolonged sitting or by other activity which places significant stress on his back. He had reported to Dr McBurnie at a second consultation in March of this year that his lumbar-thoracic pain had become constant but I reject that assertion as being an instance of his exaggeration.
d. The low-level effects just described are likely to persist at more or less the same level into the future.
e. The plaintiff Baxter suffered some modest level of pain and discomfort in his postaccident employment with Capital Fine Print but did not suffer the debilitating back spasms he described in his evidence. I have earlier given reasons for rejecting the evidence of debilitating back spasms.
f. To the extent that the expert evidence of Dr Burgess indicates the presence of a more serious injury, I reject that evidence for a range of reasons including that the doctor's opinion was influenced at least in part by an exaggerated history taken from the plaintiff and that the doctor demonstrated what I would describe as a reluctance to turn his mind to reconsideration of his opinion based on an assumption that the plaintiff had been less than entirely candid with him. For the same reasons I reject the evidence of Dr Burgess at [sic] to the possible eventual need for root decompression surgery.
g. A consequence of the injuries described and their effects is that, whilst there is little that the plaintiff Baxter is prevented from doing as a result, a number of very strenuous physical activities are likely to be accompanied by some modest level of pain. I find that occasional physiotherapy has been and is likely to continue to be an effective treatment for the pain experienced by the plaintiff Baxter.
h. I am not persuaded that a basis has been made out for an award of damages under either the principle in Griffiths v Kerkemeyer or under the extended basis in section 100 of the Civil Law (Wrongs) Act 2002. The evidence does not establish a need for relevant services to be provided to the plaintiff Baxter or that he has suffered .any loss of capacity to provide relevant services to others. To the extent that the more strenuous of his ordinary work around the home is more likely to be accompanied by pain that is part of his general damages award.
i. Consistently with the finding just referred to, vigorous and/or prolonged sexual intercourse in some positions is likely to result in back pain. The plaintiff Baxter gave evidence of acts of sexual intercourse of extraordinary duration pre-accident which he says had to be curtailed significantly after the accident. Again I conclude that he has exaggerated but in any event in assessing damages I have made some allowance for reduced enjoyment of sexual intercourse.
j. The nature of the employment engaged in by the plaintiff Baxter before the accident is representative of the type of employment to which he is suited by his pre-accident education and abilities. His pre-accident prospects of employment were limited to some extent by the dyslexia which he describes. Some of the types of employment to which he is suited may involve physical activities sufficiently strenuous to cause pain because of the residual effects of his injury. It is possible that some avenues of employment otherwise open to him by virtue of his pre-accident education and abilities may be effectively closed to him because the duties required are so strenuous that the accompanying pain is too great. In assessing the likelihood of this possibility in the future I take into account the testimony of Ms Nitschke about the types of jobs for which she has been looking for the plaintiff Baxter. I regard the scope of her enquiries in that area as relevant whether based on discussions with the plaintiff Baxter or her own observations of his abilities. My overall assessment is that the likelihood of his injuries affecting future employment is small. Nevertheless he is still a young man with many years of what would ordinarily be a normal period of working life ahead of him and he is entitled to be compensated for that risk.
k. The plaintiff Baxter's ability to effectively carry out the duties which would be involved in operating his own business despite the ongoing effects of his injury must also be seen as an unknown, although his intention to pursue the possibility of doing so is some indication of his own assessment of what he is capable of doing.
l. To the extent that the expert evidence of Dr Burgess suggests employment consequences different to the findings to which I have just referred I reject that evidence for the reasons given earlier.
m. A submission was made about vocational re-training for the plaintiff Baxter but there was a lack of evidence from him about types of employment which he would be willing or able to undertake and the availability, nature and duration of any training required for any of them.
n. In the end result it is not possible to confidently assess the extent of the residual effects of injury on the plaintiff Baxter's earning capacity, and hence I have adopted the approach of allowing a buffer. Having said that, the starting point in my calculations has been that the plaintiff Baxter's pre-accident employment prospects were rather limited in any event and in calculating the amount of a buffer I have taken into account the multiple contingencies associated with possible future employment for the plaintiff Baxter as well as the vicissitudes of life generally.
16. Having regard to those findings, my assessment of damages is as follows:
a. General damages $20,000.00
b.Interest on past general damages (calculated on the basis of
4% on $12,000 for 2 years and 3 months and adjusted for
spread of past general damages since accident date) $ 540.00
c. Out of pocket expenses (as claimed) $ 3,316.90
d.Future out of pocket expenses (analgesics, general
Medical practitioners' expenses and some allowance
for physiotherapy) $ 3,000.00
e.Past loss of earnings (calculated on the basis of 3 lost
shifts) $ 388.50
f. Buffer for future economic loss $ 5,000.00
TOTAL $32,245.40
17. I therefore give judgment for the plaintiff Baxter against the second defendant in an amount of $32,245.40 for claim. [sic]
The appellant’s submissions were directed at the adequacy of the award of general damages and the adequacy of the buffer awarded for future economic loss (grounds (a), (b) and (d)). The complaints in grounds of appeal (e) and (f) were complaints arising out of the manner in which his Honour dealt with the issues of general damages and economic loss.
Submissions – general damages
The appellant made the following submissions in relation to general damages.
(a)Having regard to s 99 of the Civil Law (Wrongs) Act 2002 (ACT) and the fact that his Honour was referred to the relevant previous decisions of this Court and the Magistrates Court, his Honour should have expressly dealt with his consideration of those decisions in his judgment. Those decisions pointed toward the appropriateness of an award of general damages substantially greater than allowed by his Honour.
(b)The finding at 15(c) that the appellant’s statement to Dr McBurnie that his “lumber-thoracic pain had become constant” should be rejected “as being an instance of his exaggeration” is not supported by any reasons.
(c)The findings at 15(d), (g) and (i) set out above were each significant in relation to the assessment of general damages.
(d)Having regard to the appellant’s life expectancy of 54.2 years and the allocation of $12,000 to the past, the award of general damages was wholly inadequate and a more appropriate award would, in the light of the reports of Dr Le Leu and Dr McBurnie, have been $65,000.
The respondent reviewed, in some detail, the evidence before the Magistrate and the findings of the Magistrate. Having regard to his Honour’s rejection of important aspects of the appellant’s evidence and the reliance by Dr Le Leu and Dr McBurnie upon the history provided by the appellant, the respondent contended that an award of $20,000 for general damages was within the range of awards which could reasonably be reached in the light of the evidence.
Submissions – future economic loss
The appellant accepted that his Honour correctly determined that the proper approach to future economic loss was to make an award by way of a buffer. The parties accepted that the principles applicable to the award of a buffer are accurately stated in Tsueneaki v Stewart [2013] ACTCA 34 at [35]-[40] and Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 at [31]-[50]. The appellant submitted that the findings at 15(a)-(e) and (j)-(k) set out above were relevant to the award, as were the findings of Dr Le Leu and Dr McBurnie. The appellant submitted that the reasons for making an award of $5,000 are not disclosed and that in any event the award was wholly inadequate.
The respondent submitted in the light of the ability of the appellant to remain in his pre-accident employment for 15 months after the accident and the absence of any medical evidence to suggest that his physical condition would deteriorate in the future there was a proper basis for making no award for future economic loss but, having regard to the finding at 15(j) set out above, it was not possible to say that his Honour’s modest buffer was outside the range that might reasonably be awarded.
Consideration
General damages
His Honour correctly identified that the finding that the appellant had exaggerated or understated his evidence according to his perception of what best suited his case presented some difficulties in assessing the true extent of the injuries suffered by him. That was particularly the case because of the lack of objective evidence of the nature of his injuries. In other words, the expert evidence was largely dependent upon the reliability of the complaints made by the appellant to the doctors who examined and reported upon him. It was not a case where there was objectively identifiable pathology that could be relied upon even in circumstances where the appellant’s own reporting was found to be unreliable. As a consequence, his Honour was placed in a situation where the foundations upon which the expert evidence was based had been effectively undermined and had to make an assessment of damages in that context.
Of the three expert witnesses, his Honour did not accept the evidence of Dr Burgess. There is no challenge to the rejection of Dr Burgess’ evidence disclosed in paragraph 15(f). That leaves the reports of Dr Le Leu and Dr McBurnie. The reports were referred to in paragraph 3 of his Honour’s reasons. Dr McBurnie is also referred to in paragraph 15(c) where his Honour found that the appellant’s report of constant lumbar-thoracic pain to Dr McBurnie was an instance of his exaggeration. His Honour does not make specific reference to Dr McBurnie’s conclusions. His Honour’s only reference to the report of Dr Le Leu is at the commencement of his reasons where he identifies the report as being part of the medical evidence in the respondent’s case.
I will deal first with the evidence of Dr Le Leu and then the evidence of Dr McBurnie.
Dr Le Leu examined the appellant on 26 April 2013 some eight months after the accident. He described the appellant’s injuries as follows:
In my opinion he has a very well-localised injury in the lumbar spine affecting probably the L4/5 disc on the right side causing pressure on the L5 nerve root. This is resulting in the positive straight leg raising test and the absence of the right knee reflex.
He recommended an MRI of the lumbar spine and made it clear that his assessment of whether the appellant would be left with any permanent impairment was largely dependent upon the results of the MRI scan. He said “[h]e is no longer capable of doing work of a moderately to highly physical nature and he is just borderline fit for the sort of work he is doing for Canberra [sic] Fine Print”. It is notable that notwithstanding this conclusion the appellant continued to work without interruption for approximately seven months up until the point at which he decided to move to Nowra in November 2013. A supplementary report dated 14 June 2013 was obtained following the MRI scan. The MRI scan looked relatively normal and showed no visible nerve root impingement. Dr Le Leu concluded:
Hence, based on the imaging, it is most probable there is no significant structural damage resulting from the subject accident and recovery is still possible over the next 12 months or so.
He might benefit from treatment with an exercise physiologist such as a course of exercises as can be provided by an organisation such as Fit to Manage in Deakin.
The evidence of Dr Le Leu was thus left in a state of uncertainty. It was not clear whether his opinion remained that there was “a very well-localised injury in the lumbar spine” that caused pressure on the L5 nerve root. That would appear to be inconsistent with his later observations of the MRI. Further, his second report indicates that recovery was possible over “the next 12 months or so” and, notwithstanding that the trial occurred in May and September of the following year 2014, no updated report was obtained.
In relation to the reports of Dr McBurnie the first report was dated 18 January 2013. At that stage the appellant was reporting pain from the mid thoracic to lower lumbar region of his back with pain being intermittent but with frequent episodes during a day. The appellant reported that he was slowly improving. Physical examination was normal. Dr McBurnie said “[t]he prognosis is good and full recovery is expected”. In her second report which was prepared on 31 March 2014, two months prior to the commencement of the hearing, the appellant reported that his pain was now constant. He reported that he had not had treatment or investigations since the last consultation. He described his pain as a “constant ache in his back” and noted that it had an intensity of “6-7/10” where 10 was the “worst pain imaginable”. He also reported “sharp stabbing localised pain”. It is clear that Dr McBurnie provided her opinion based upon the reported symptoms. She said:
My overall impression is that Mr Baxter has mechanical lower back pain secondary to the motor vehicle accident. He has no signs or symptoms suggestive of nerve impingement or radiculopathy. He has no imaging findings suggestive of a serious underlying condition or a lesion that would explain his symptoms.
She reported that the prognosis was guarded and that:
It is likely that his current level of disability will persist. With regard to incapacity to work Mr Baxter was able to continue in his pre-accident role despite the pain. In the long term had Mr Baxter stayed in Canberra and continued to work in that role he may have got to the point where he found that his back was too uncomfortable doing that work. In that case he would be unfit for heavy work but would be fit for light-to-moderate work.
She said that “[i]t is unlikely that ongoing treatment would make a significant difference”.
His Honour’s express rejection of the appellant’s reports to Dr McBurnie as an instance of his exaggeration undermines the probative value of the opinions the doctor expressed. I do not accept the submission made by the appellant that the manner in which his Honour dealt with the opinion of Dr McBurnie does not adequately expose his reasoning process. His Honour explained at [9]-[11] the reasons for finding that the appellant was “an unimpressive witness” and that he “was not being entirely truthful and that at times he deliberately either exaggerated or understated his evidence according to his perception of what best suited his case”. The consequences of that conclusion were spelt out at [13] where his Honour referred to the difficulty in assessing the true extent of his injuries having regard to the fact that the expert medical opinion relied heavily on the history given by the appellant. It was in that context that his Honour made the comment at [15](c). Having regard to his Honour’s thorough explanation for his conclusion that the history given to medical experts was unreliable, the explanation for the rejection of the history given to Dr McBurnie was sufficient.
In relation to the reports of Dr Le Leu there is no specific explanation as to what weight his Honour gave to the reports. However it is consistent with what his Honour said at paragraph 13 of his reasons that he assessed Dr Le Leu’s first report in the light of the unreliability of the history given by the appellant and the terms of the second report which indicate the absence of any nerve root impingement or significant structural damage.
Section 99 of the Civil Law (Wrongs) Act2002 (ACT) permitted the Court to take into account earlier decisions of courts in deciding damages for non-economic loss. The purpose of s 99 was to give effect to recommendation 46 of the Ipp Report: Explanatory Statement, Civil Law (Wrongs) Amendment Bill 2003 at p 5. Recommendation 46 of the Ipp Report included recommendations that in assessing general damages a court may refer to decisions in earlier cases and counsel may bring to the court’s attention such awards of general damages (see Ipp Report at p 188). The intention of this was to reverse the decision of the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 (‘Planet Fisheries’) which precluded reliance upon all reference to previous decisions in order to establish the appropriate award for general damages. (The same result appears to have been reached without reference to s 99 by the Court of Appeal in Vulin v Cox [2005] ACTCA 22). The intention of the Ipp Report was to promote, over time, consistency of awards for non-economic loss. The contention of the appellant appears to be that because earlier decisions were not specifically referred to by his Honour, he failed to consider them and hence erred by making an award of general damages which was simply too low. This appears to me to be an appropriate way in which to put the challenge to his Honour’s decision. I do not accept the submission that, having been referred to cases, his Honour was obliged to then explain in his reasons why the award of general damages was different to the awards in those cases. Such a submission could be put if not only did the existence of those previous decisions provide a basis for challenging the substance of the award of general damages but also that the failure to specifically articulate in the reasons for decision the differences between the instant case and the cases to which a court has been referred might demonstrate error. My view is that the reversal of the rule in Planet Fisheries does not have that latter consequence. Section 99 is a facultative provision designed to assist the Court and promote uniformity of awards rather than one which permits counsel to inflict a further burden upon trial judges in relation to the provision of reasons. A trial judge may find it appropriate to discuss comparable awards: see for example Davies v Grgic [2006] ACTSC 14, but is not obliged to do so. As a consequence I do not consider that the decision below involves an error because of the absence of reasons differentiating the circumstances of the instant case from those to which his Honour was referred. It is, however, necessary to take into account the decisions that the appellant referred to in order to determine whether the award of general damages was erroneously low.
Eames v Shain [2012] ACTSC 116 was a case involving a low speed motor vehicle collision where the plaintiff’s claims of physical and psychological injury were found to be exaggerated. Reliance was placed by the appellant on that case because notwithstanding that her Honour made an award of $40,000 for general damages. However, as is made clear by the judgment at [91]-[94], her Honour found that the plaintiff suffered from a soft tissue injury to her cervical spine, aggravation of a pre-existing condition in the lumbar spine and aggravation of her pre-existing personality instability but that the effects of these injuries continued for a relatively short period after the accident and had resolved by the end of 2008, nine months after the accident. Her Honour described the injuries as of “moderate severity”. Her Honour awarded $40,000 for general damages allocating the whole of that sum to the past. Having regard to the different injuries sustained, the characterisation of them as of “moderate severity” at [93] and the fact that they were all in the past, it cannot be said that the award in that case was necessarily inconsistent, or indicative of a range inconsistent, with the award of general damages in the present case.
In De Marco v Italo-Australian Club (ACT) Ltd [2010] ACTSC 28 the plaintiff had suffered an injury in 1999, nine years prior to the commencement of the trial. Master Harper found that the plaintiff and her husband had exaggerated the effect of the symptoms and the plaintiff’s level of pain as well as the amount of time that the husband had spent and continued to spend on housework. His Honour continued at [62]:
I nevertheless accept that the plaintiff still suffers from back pain from time to time, and there are periods when she needs to take some time off work and to take painkillers and anti-inflammatories. Bearing in mind that this has been continuing for eleven years since the accident, it seems to me likely that the pattern will persist indefinitely.
His Honour awarded $70,000 and apportioned $50,000 of that figure to the past. The effect of this was to award an amount of $20,000 for the future to a woman of 43 years and hence with a substantial life expectancy. Having regard to the significant extent to which, in a case where a substantial component of the plaintiff’s evidence is not accepted, a finding of general damages will be influenced by the trial judge’s assessment of the plaintiff, it cannot be said that the award in that case is necessarily inconsistent with the award in the present case.
The other case referred to by the appellant was a decision of another Magistrate in a personal injury matter in which counsel for the appellant had appeared. No written reasons were given and no transcript was provided to me of the oral reasons of the Magistrate below. As a consequence, even though counsel for the appellant gave a summary of the injuries and their duration, it is not possible to assess whether the award of $60,000 for general damages in that case was consistent or inconsistent with the approach taken by his Honour in the present case.
The other case to which his Honour was referred by the respondent was a 1986 decision of Miles CJ. The appellant submitted that because of its age it is of little precedent value, a submission which I accept, and in those circumstances it is unnecessary to analyse it further.
The assessment of general damages relies very heavily on the impression made by the plaintiff on the finder of fact: Tsueneaki v Stewart [2013] ACTCA 34 at [30]. In the present case his Honour had found that the appellant “has and continues to suffer occasional low level pain caused by prolonged sitting or by other activity which places significant stress on his back” and that these “low-level effects … are likely to persist at more or less the same level into the future”. Thus the effect of his Honour’s decision is to award the sum of $8,000 for occasional low level pain that occurs in some circumstances into the future. Precisely the period contemplated by “into the future” is not clear. However his Honour’s findings must be read as a whole and the challenge to the award of general damages assessed in the light of his Honour’s findings of fact.
His Honour made four relevant findings of fact in relation to the future. Neither party has appealed against those findings. They are as follows.
(a)The appellant suffers occasional low-level pain caused by prolonged sitting or other activity which places significant stress on his back and this is likely to persist at more or less the same level into the future: Reasons [15](c)-(d).
(b)There is little that the appellant is prevented from doing although a number of very strenuous physical activities are likely to be accompanied by some modest level of pain. Occasional physiotherapy is likely to continue to be an effective treatment for the pain experienced by the appellant: Reasons [15](g).
(c)Vigorous and/or prolonged sexual intercourse in some positions is likely to result in back pain: Reasons [15](i).
(d)Some work activities would be so strenuous that the accompanying pain, necessarily pain causally related to the accident, would be “too great” to permit him to pursue that kind of employment: Reasons [15](j).
Further, his Honour made an award for future out-of-pocket expenses including analgesics, general medical practitioners’ expenses and some allowance for physiotherapy: Reasons [16](d). Neither party has appealed against the correctness of that award. What is significant is that the award for out-of-pocket expenses does contemplate the need for at least some additional treatment for the back complaints. That is, the back pain likely to be suffered by the appellant will not only continue but be sufficient to reasonably require medical assistance and/or physiotherapy.
It is important to note that his Honour, in the light of his findings about the unreliability of the appellant, might have rejected his complaints about ongoing back pain completely and found that he did not continue to suffer from back pain causally related to the accident. Further, even if he did not reach that conclusion, his Honour might have found that the back pain was such that it would not require additional medical expenses caused by visits to a general practitioner, the purchase of medication or physiotherapy. However his Honour, with all the undoubted benefits of being the trial judge, found both that the causally related back pain would continue and that it would be sufficient to warrant a requirement for medical expenses of the kinds outlined. In those circumstances, in my view the award for general damages in relation to the future was inconsistent with his Honour’s findings.
Even having regard to the adverse view of the appellant’s evidence, the unchallenged factual findings warranted an award of damages for the future greater than $8,000. An award of $8,000 for the future would not be consistent with an injury requiring the medical treatment which his Honour contemplated and with the effects on work and personal life which his Honour found to exist. In my view having regard to the findings made by his Honour an award of general damages of $18,000 for the future is appropriate resulting in an overall award of general damages of $30,000. In reaching that conclusion I have had regard in a general way to the cases referred to above but have not attempted to engage in any detailed comparative analysis. Given that the variation to the award only relates to the future, there is no consequential variation to the award of interest.
Future economic loss
In relation to future economic loss I am not satisfied that the appellant has demonstrated error in the award of the very modest buffer of $5,000. His Honour’s conclusion stated at [15](j) was that “the likelihood of his injuries affecting future employment is small”. However the following sentence makes clear that there was a risk of an impact over the many years of his potential working life. The appellant had only demonstrated nominal past economic loss and had demonstrated the capacity to work unhindered over the period between the accident in August 2012 and moving to Nowra in November 2013. Even though his Honour contemplated the possibility that some avenues of employment previously open to him would be too strenuous it is clear that his Honour proceeded on the basis that the loss of capacity was unlikely to be productive of any economic loss. The award of $5,000 is the equivalent in current dollars of a 5% chance of a $100,000 loss or a 10% chance of a $50,000 loss. Having regard to the contingencies with which his Honour was dealing I am not satisfied that the appellant has demonstrated an error in his Honour’s award.
Conclusion and orders
As a consequence, the appeal must be allowed and the judgment in favour of the appellant must be adjusted so as to take account of the increased award of general damages. Costs will reflect the success of the appellant but I will give the parties the opportunity to be further heard if necessary. There was no evidence that the order of the Magistrates Court has been entered under the Court Procedures Rules 2006 (ACT). Once that is done then orders setting aside that judgment can take effect.
The orders of the Court are:
1. The appeal is allowed.
2. Upon the entry of judgment in the Magistrate’s Court pursuant to the order made by that Court on 27 November 2014, that judgment is set aside and the following order is made in its place: Judgment for the plaintiff against the defendant in the amount of $42,245.40.
3. The respondent is to pay the appellant’s costs of the appeal.
4. Order 3 does not take effect if within seven days of the date of these orders either party notifies my associate by email that it wishes to be further heard in relation to costs.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 8 September 2015 |
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