Brocx v Mounsey
[2010] WASCA 196
•14 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROCX -v- MOUNSEY [2010] WASCA 196
CORAM: PULLIN JA
NEWNES JA
MURPHY JA
HEARD: 25 JUNE 2010
DELIVERED : 14 OCTOBER 2010
FILE NO/S: CACV 103 of 2009
BETWEEN: MARGARET BROCX
Appellant
AND
ROBERT MEAKINS MOUNSEY
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
Citation :BROCX -v- MOUNSEY [2009] WADC 113
File No :CIV 600 of 2007
Catchwords:
Negligence - Personal injury - Assessment of damages - Principles of appellate court review - Whether deduction for contingencies for loss of future earnings includes work-related expenses - Whether primary judge erred in assessment of damages
Legislation:
Motor Vehicle (Third Party Insurance) Act1943 (WA), s 3C(2)
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant: Mr J R Criddle
Respondent: Mr D R Sands
Solicitors:
Appellant: Havilah Legal
Respondent: Talbot Olivier
Case(s) referred to in judgment(s):
Brocx v Mounsey [2009] WADC 113
Commissioner of Taxation (Cth) v St Helen's Farm (ACT) Pty Ltd (1981) 146 CLR 336
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
Dell v Dalton (1991) 23 NSWLR 528
Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Kember v Thackrah [2000] WASCA 198
Koeck v Persic (1996) Aus Torts Reports 81-386, 63,360
Marsland v Andjelic (1993) 31 NSWLR 162
Miller v Jennings (1954) 92 CLR 190
Nestle Australia Ltd v McDougall Robert [1998] NSWCA 158
Paul v Rendell (1981) 34 ALR 569
Robinson v Riley [1971] 1 NSWLR 403
Southgate v Waterford (1990) 21 NSWLR 427
Thomas v Bass [2006] WASCA 59
Van Gervan v Fenton (1992) 175 CLR 327
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
PULLIN JA: I agree with Newnes JA.
NEWNES JA: This is an appeal from a decision of Keen DCJ in the District Court in which his Honour assessed the appellant's entitlement to damages for injuries sustained by her in a motor vehicle accident on 3 May 2001 in the sum of $532,024: Brocx v Mounsey [2009] WADC 113. The liability of the respondent was admitted.
The appellant contends that the primary judge erred in a number of respects in his assessment of the damages to which she was entitled, resulting in an award that was substantially less than it should have been.
Background
The appellant was born on 7 November 1955. She was educated at Kent Street High School until September 1971. She left school at age 16. In 1972 the appellant commenced part‑time studies at the Mount Lawley campus of TAFE for a Certificate in Applied Science. The following year she returned to full‑time studies at the Mount Lawley campus. In 1980 after the birth of her daughter the appellant resumed her studies, which she completed in 1987.
In 1988, the appellant commenced studying for a Diploma in Applied Science at TAFE, which she completed in 1990. The following year the appellant commenced part‑time study for a Bachelor of Science degree in bio‑technology at Murdoch University. The appellant completed that degree in 1999 and, in 2000, commenced part‑time study to complete the degree with honours. In July 2000, she suspended those studies for 12 months.
As I have mentioned, on 3 May 2001 the appellant was injured in the motor vehicle accident to which this appeal relates. She was taken by ambulance to Royal Perth Hospital and admitted overnight. In August 2001 the appellant underwent a right knee arthroscopy and medical meniscectomy and chondroplasty.
After the accident, in February 2003, the appellant completed her honours degree in geo‑heritage and, in 2004, she applied for, and was awarded, a post‑graduate research scholarship to undertake a Doctor of Philosophy degree in Environmental Science at Murdoch University. On 1 April 2005 the appellant commenced her part‑time studies under that scholarship. She had not completed the requirements for the degree at the time of trial, March‑April 2009. In January 2006, the appellant enrolled
in a Graduate Certificate in Natural Resource Management at the University of Western Australia, but later withdrew from that course.
The appellant has co‑authored a number of scientific papers and, in 2008, a book based on her honours thesis was published by the WA Museum.
The primary judge found that the appellant suffered injuries to her right knee and suffered soft tissue injuries to her neck and back in the accident [493]. The injury to her right knee had caused problems of instability and led to her suffering falls from time to time when the knee gave way. The problems with her knee were likely to be permanent, although she was assisted by the use of a brace or stick [499], [501]. His Honour also found that the appellant had been left with on‑going symptoms in her neck and back [513]. He further found that the appellant became subject to symptoms of depression and anxiety as a result of the injuries and disabilities caused by the accident, but that the psychological symptoms did not affect the appellant's functioning in terms of her work, family or social activities [545] ‑ [547].
Decision of the primary judge
The primary judge awarded the appellant damages in the total of $532,024. The assessment was made under a number of heads as follows:
General damages for non‑pecuniary loss $49,500
Past loss of earning capacity $273,629
Future loss of earning capacity $186,750
Domestic services $12,145
Future treatment $10,000
Total$532,024
General damages
In assessing general damages, the primary judge noted that the appellant was a high achiever and that the accident had had a significant effect on her both socially and professionally. His Honour observed that some eight years after the accident the appellant had continuing knee, back and neck problems, in addition to psychological consequences. The appellant required a knee brace and medication for pain. She used a stick for knee support as her knee had given way on a number of occasions, exacerbating her pain and disability.
His Honour found that the appellant was entitled to 17.5% of the prescribed maximum amount, which, after deduction of the threshold, was a sum of $49,500.
Past loss of earning capacity
His Honour calculated the appellant's past loss of earning capacity by reference to four periods of time. The first was the period from the date of the accident until February 2003 when the appellant completed her honours degree, a total of one year and nine months. His Honour assessed damages for that period in the sum of $34,580. That is not the subject of any challenge on the appeal.
The second period was from the time at which the appellant completed her honours degree until she commenced her doctoral studies, a period of two years and one month. The primary judge found that in that period the appellant would have worked full‑time as an environmental scientist [655]. On the basis of the evidence of an expert witness, Professor Mulvey, a consultant in labour economics, that the earnings of an environmental scientist at that time were $63,388 per annum, his Honour allowed an amount of $45,000 per annum. In arriving at that figure his Honour took into account that the appellant would have been starting out in the field [656]. After deducting an amount for income tax, his Honour assessed damages for the period in the sum of $71,604 [657]. To that sum his Honour added an amount of $7,146 for superannuation benefits to which the appellant would have been entitled [665].
The third period was from 1 April 2005 to 1 April 2006, during which his Honour found that the appellant would have been engaged in her doctoral studies and for which no allowance should be made [658].
The final period was from 1 April 2006 to trial, being April 2009, a total of 156 weeks. His Honour found that, having completed her doctorate, the appellant would have gone on to become an environmental consultant. He concluded that based on the evidence of two witnesses, Professor Mulvey and Dr Meney (a director of an environmental consulting company), the earnings at the time of trial of an environmental consultant were between $80,000 and $85,000 per annum [660]. His Honour said:
Here we are dealing with a three-year period to the present time and again it seems reasonable to me to adopt a figure below that range to reflect increases in rates of remuneration up to the present time. Further, it is also appropriate to adopt a lesser figure on the basis that at the beginning of the period the plaintiff would have been just starting out and may not have been able to command the market rate but something less in order to get a foothold in the field.
I would adopt a figure of $75,000 per annum or $1,440 per week which after deduction of tax produces a figure of approximately $1,080 per week [661] ‑ [662].
On that basis, his Honour awarded an amount of $168,480 for the period [663].
In determining the appellant's overall past loss of earning capacity, the primary judge deducted an amount of $61,141 for income the appellant had earned over the period but concluded that no deduction should be made for contingencies. His Honour allowed interest at 3% per annum for eight years to arrive at a final figure of $273,629.
Future loss of earning capacity
As I have mentioned, the primary judge found that the appellant would have become an environmental consultant following completion of her doctorate. His Honour found that by the time of trial she would have had three years post‑doctoral experience and, with her reputation in the area, it was reasonable to assume she would have been earning at least at the top end of the going rate. Based on the evidence of Professor Mulvey and Dr Meney, his Honour found that the appropriate earning capacity was $85,000 per annum.
Turning to the appellant's retained earning capacity, the primary judge found that whilst the appellant would be unable to work as an environmental consultant because of her disabilities, she could work as an employed environmental scientist in predominantly laboratory or desk work, or in some other sedentary occupation [673]. His Honour was satisfied, however, that the appellant would have difficulty doing fieldwork, which was part of the role of an environmental scientist. He was also satisfied, based on the evidence of Dr Slinger (an orthopaedic surgeon), Mr Vaughan (a neurosurgeon) and Dr Yin (a general practitioner specialising in musculoskeletal problems), that she would be unable to sit or stand for long periods [513] ‑ [514]. In light of her disabilities, his Honour found that the appellant would not be able to work full‑time [679].
On the basis of Professor Mulvey's evidence, the primary judge took the earning capacity of an environmental scientist to be $63,388. In assessing the appellant's retained earning capacity his Honour took into account, on the one hand, that the employability of the appellant may be restricted and she may have difficulty competing in the labour market, and, on the other hand, that she was highly regarded in her field and had in the past demonstrated 'doggedness and determination' [682] ‑ [684]. His Honour found that a reasonable assessment of her retained earning capacity was $40,000 per annum.
His Honour then turned to the question of contingencies. He found that in relation to the appellant's loss of earning capacity the appropriate allowance for contingencies was 15%. In doing so, his Honour took into account expenses that would be incurred in working as a consultant. In relation to the appellant's retained earning capacity, his Honour concluded that most, if not all, work‑related expenses would be met by the employer and accordingly the appropriate allowance was 10%.
The primary judge went on to set out his assessment as follows:
Loss as an environmental scientist: $85,000 ‑ 15% = $72,250
After tax approximately pa $55,536
Less retained capacity at pa $40,000
Less contingencies at 10% $36,000
After tax pa $31,200
Plus superannuation on $36,000
(adjusted for Jongen) $2,754
$33,954
$21,582
Or $415 per week
On the basis that the appellant would work to 65 years of age and the relevant multiplier was approximately 450, the primary judge assessed the appellant's future loss of earning capacity at $186,750 [690].
Domestic services
The primary judge declined to make any award in respect of gratuitous services. His Honour found that neither the extent nor the need for such services had been established. He accepted, however, that, based on the evidence of Dr Lipscombe and Dr Slinger, the appellant had established a need for paid domestic assistance up to 31 December 2003 [595]. (His Honour later inadvertently refers, at [696], to the relevant period as being up to 31 December 2007.)
His Honour concluded that, based on his findings as to the appellant's need, nine hours per week should be allowed for the period to 27 May [sic, March] 2002 and from 23 [sic, 27] March 2002 to 31 December 2002 [sic, 2003] at four hours per week [696]. In each case, he allowed that assistance at a rate of $15 per hour. Together with interest at 3% per annum, his Honour found (albeit, based on errors he had made in the dates) that the appellant was entitled to the sum of $12,145 for paid domestic services [697]. His Honour concluded that there was no medical evidence supporting the need for paid domestic services after 31 December 2002 and accordingly made no allowance for it [698].
Future treatment
There is no challenge to his Honour's award of an amount of $10,000 for future treatment.
Grounds of appeal
There are seven grounds of appeal. They are, in substance, as follows:
1.In finding that no allowance should be made for earnings during period 3 of the appellant's past economic loss, the trial judge erred in law and in fact in failing to take into account the fact that the appellant had obtained a scholarship which provided income during her doctoral studies.
2.The trial judge erred in fact and in law in finding that the base rate for calculation of the appellant's entitlement to future economic loss was $85,000 per annum.
3.The trial judge erred in fact and in law in finding that the appellant had a retained capacity for employment as a part‑time environmental scientist earning $40,000.
4.In concluding that the contingency discount in relation to lost earning capacity should be set at 15% [685] the trial judge erred in law in taking into account 'expenses' associated with the earning of such income as expressed.
5.The trial judge erred in law and in fact in determining that the allowance for retained capacity should be subject to a contingency of 10%.
6.The trial judge erred in law and in fact in limiting the appellant's entitlement to paid domestic and gardening services to 31 December 2002 and dismissing the claim in respect of future paid services.
7.The trial judge erred in law in the assessment of general damages at 17.5% of a most extreme case; given the nature of the appellant's injuries such award was so far below a sound discretionary award as to demonstrate error.
Disposition of the appeal
Before turning to the specific grounds of appeal, it is relevant to note that, as Deane and Dawson JJ pointed out in Van Gervan v Fenton (1992) 175 CLR 327, 343, the assessment of damages for personal injuries in an action for negligence is not an exact science. The process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case.
In a similar vein, in Paul v Rendell (1981) 34 ALR 569 the Privy Council observed:
The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the 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 (571).
Such an assessment has many of the characteristics of a discretionary judgment: Commissioner of Taxation (Cth) v St Helen's Farm (ACT) Pty Ltd (1981) 146 CLR 336, 381. In order to justify a review by an appellate court of an assessment of damages on the grounds of inadequacy, the compensation so assessed must be so inadequate as to be beyond the limits of what a sound discretionary judgment could reasonably adopt: Miller v Jennings (1954) 92 CLR 190, 197.
It is also appropriate to observe that as this appeal is a re‑hearing based on the record below (no new evidence having been admitted), there are limitations inherent in such a re‑hearing. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23]. (footnotes omitted)
Against that background I turn to consideration of the specific grounds of appeal relied on by the appellant.
Ground 1 - past economic loss
This ground of appeal was conceded by the respondent (appeal ts 55). The respondent accepted that in assessing the appellant's past economic loss the trial judge had erred in failing to take into account the earnings the appellant would have obtained from her scholarship had the accident not occurred (appeal ts 55). The result is that the appellant's damages for past loss of earnings should be increased by $8,272 to the sum of $281,901.
Ground 2 - future economic loss
The appellant submitted, in substance, that the trial judge erred in finding that the appropriate base rate for future economic loss was $85,000 [672]. It was submitted that, on the evidence, his Honour should have assessed the appellant's future loss based on a figure of $110,500 per annum.
His Honour said, in relation to future loss:
My findings lead to an assumption that after the plaintiff had completed her doctorate she would have in all probability exercised her earning capacity as an environmental consultant.
Adopting the evidence of Dr Meney and Professor Mulvey, I would adopt an earning capacity of $85,000 per annum. By the present time the plaintiff would have had some three years post‑doctorate experience and with her reputation it is reasonable to assume she would have been earning at least at the top end of the going rate [671] ‑ [672].
It is, I think, clear that the reference to the evidence of Dr Meney is an error. Dr Meney did not give any evidence as to the earnings of a consultant environmental scientist. Dr Meney is a director of what she described in evidence as a multi‑disciplinary environmental company. The company employs a number of environmental scientists and her evidence was limited to the earnings of salaried environmental scientists employed by her company. In that respect, Dr Meney gave the following evidence:
And what remuneration is payable to an environmental scientist? I'm speaking on a salary basis‑‑‑Yes.
‑ ‑ ‑ rather than as a consultant‑‑‑It varies on their level, but a senior scientist, senior ‑ higher level senior scientist similar to what I would consider Margaret to be would be 80 ‑ 85,000 per year.
Is that as a package or plus superannuation‑‑‑No, plus superannuation (ts 411).
Professor Mulvey is a consultant in labour economics. He gave evidence as to the average earnings of, amongst others, consultant environmental scientists and salaried environmental scientists respectively. Professor Mulvey estimated the average weekly earnings in Western Australia at the time of trial for a consultant environmental scientist at $1,583 ($82,316 pa) and for a salaried environmental scientist at $1,219 ($63,388 pa) (exhibit 2.20). The latter figure did not include any amount for compulsory superannuation (ts 478). The income of a consultant would not, of course, be subject to compulsory superannuation. Professor Mulvey gave evidence only as to average earnings; he did not give evidence as to the range of incomes earned by salaried scientists or consultants.
The appellant also sought to rely on the evidence of Dr Semeniuk, a principal of an environmental consultancy firm. Dr Semeniuk gave evidence that if the appellant had been fully fit he would have employed her as a consultant on a project by project basis and not as an employee (ts 262). He said that the amount paid to a consultant would vary according to the work involved and their experience. A qualified consultant environmental scientist might earn $800 per day for the days they worked for his firm (ts 261 ‑ 269).
In evidence on which the appellant appeared to place some reliance, Dr Semeniuk said that in a proposal made by his company to a Commonwealth government department the appellant had been included as one of those who would be involved in the work. Dr Semeniuk gave the following evidence:
SANDS, MR:Were those proposals successful‑‑‑No.
No. If they had been successful, what daily rate would Margaret Brocx have been paid‑‑‑The maximum daily rate.
Which is what, $800‑‑‑Perhaps $1200, not $800 (ts 279).
The evidence of Professor Mulvey and Dr Meney as to the annual earnings of environmental scientists can be summarised as follows (I put aside the evidence of Dr Semeniuk for this purpose as he did not give evidence of annual income):
Salaried employee
Consultant
Average
$63,388
(Professor Mulvey)
$82,316
(Professor Mulvey)
High level
$80,000 - $85,000
(Dr Meney)
No evidence
The appellant's contention that the primary judge should have assessed the appellant's loss of future earnings as a consultant environmental scientist based on an income of $110,500 was explained in different ways on the appeal.
It appears from the appellant's written submissions [WAB 5, 11] that it was based on the difference, as appeared from the figures given by Professor Mulvey, between the average income of an employee ($63,388) and the average income of a consultant ($82,316). On those figures, the average income of a consultant was 30% higher than the average income of an employee. The primary judge had found, however, that the appellant would have been earning 'at least at the top end of the going rate' [672]. It was submitted that the difference between a 'top end' salaried employee and a 'top end' consultant should also be taken to be 30%. On the basis of the evidence of Dr Meney that a higher level salaried employee (in her firm) would earn $80,000 ‑ $85,000, the appropriate figure for the appellant, as a high‑end consultant, was therefore $85,000 plus 30%, a figure of $110,500 (appeal ts 18, 21, 22).
However, during the course of argument on the appeal, the 30% increase was at times explained by reference, not to the difference between the averages provided by Professor Mulvey, but on the basis that 30% was the difference in income between an 'average' and a 'top level' environmental scientist (eg appeal ts 24 ‑ 28). Counsel for the appellant explained that the difference between the income of the average salaried employee of $63,388 (based on Professor Mulvey's evidence) and a high level salaried employee's earnings of $80,000 to $85,000 (based on Dr Meney's evidence as to the rate paid by her company) was 30% (in fact, the difference is 26% to 35% depending on the high level figure used). If a high level employee can earn 30% more than an average employee then it can be inferred that a high level consultant is likely to earn 30% more than an average consultant. On the basis that the average earning of a consultant was $82,316 (based on Professor Mulvey's figures), the earnings of a high level consultant would be that amount plus 30%, a figure of some $110,500 (in fact, $107,010).
Neither of these arguments is persuasive. They rely upon assumptions that have no foundation in the evidence. There is no basis upon which it could be concluded that the 30% difference between the average income of a salaried employee and the average income of a consultant, or the approximately 30% difference between the average income of a salaried employee and the income of a high level salaried employee, holds true for a 'high level' consultant. There was no evidence led at the trial of the income of a 'high level' consultant in the field. Nor was there any explanation for the absence of such evidence.
The only evidence before the trial judge as to a consultant's income was the figure of $82,316 provided by Professor Mulvey. The evidence of Dr Meney as to the income of a high‑end salaried employee is not helpful on this issue and, with respect, reference to it in the reasoning of the trial judge at [672] is erroneous and leads to confusion.
The daily consultant rates provided by Dr Semeniuk are also of no real assistance. As the primary judge pointed out [572] ‑ [573], there is no basis upon which any annual earnings figure can be extrapolated from Dr Semeniuk's evidence. In my view, his Honour was correct in declining to attempt to derive such a figure. Any calculation of annual earnings would depend upon the number of days in the year on which work at the suggested rate was available to be carried out by the appellant, as to which the evidence was silent.
The figure of $85,000 which his Honour arrived at is higher than the average figure of $82,316 provided by Professor Mulvey. There is no evidence upon which it can be said that a rate higher than that should have been awarded. Any other rate would be simply speculative. If a higher figure was sought to be made out it was open to the appellant to lead evidence of that at trial. No such evidence was led. The 30% increase on the trial judge's base rate which is now argued for by the appellant cannot reasonably be inferred from the evidence.
I would dismiss ground 2.
Ground 3 ‑ retained earning capacity
The appellant submitted that the finding of the primary judge as to the appellant's retained earning capacity was inconsistent with his Honour's finding that the appellant would have a very limited capacity to carry out field work and would be unable to carry out the general fieldwork of an environmental scientist [552]. It was submitted that the finding of a capacity to work as an environmental scientist at a level which would generate an income of $40,000 per year was not based on any medical evidence and was inconsistent with the evidence of Dr Slinger and Dr Yin.
The relevant evidence of Dr Slinger as to the appellant's work capacity appears in two reports he prepared after examining the appellant. In a report dated 28 May 2008, Dr Slinger said:
In respect to [the appellant's] usual work as an environmental scientist, I would agree that she would be limited in the activities which are required of her in field work on undulating terrain, although in the past she has been managing by travelling out into the field, but remaining in the vehicle while her colleagues complete the necessary activity.
I believe [the appellant] is fit to continue with office or home based activities in her consultancy practice, or in similar sedentary duties, at least part‑time, four to six hours a day, four to five days a week, possibly full‑time with an appropriate environment and workstation with flexible hours.
In a report dated 22 January 2009, Dr Slinger reiterated that he considered the appellant 'would be capable of office or home‑based activities in her consultancy practice, or similar sedentary duties'. He went on:
Those duties would include part‑time, four to six hours a day, four to five days a week, in an appropriate environment and workstation, ideally with flexible hours, allowing her to sit or stand at discretion.
It is unlikely she would be capable of full-time employment.
Dr Yin's evidence at trial was that the appellant had a capacity for sedentary work:
[I]n the vicinity of 20 hours a week. Somewhere around half time (ts 229).
The primary judge also relied on the evidence of Mr Vaughan. In a report dated 2 May 2008, Mr Vaughan expressed the following opinion:
I think [the appellant] would be incapable of working 8 hours per day but with appropriate office arrangement to at least half that time in the present context. Whilst [the appellant] does have a pain aggravation through sitting that is able to be accommodated, whilst standing there is a need to achieve the right knee stability to prevent further injury, including an outside splint.
At trial, in answer to a question by the appellant's counsel, Mr Vaughan said that recent DVDs of the appellant he had seen indicated that her condition had subsequently improved to a greater extent than he had anticipated (ts 366 ‑ 367).
In assessing the appellant's future earning capacity the primary judge observed that the appellant was highly regarded in her field and, it is to be inferred, was therefore likely to be sought after as an employee. He also observed that she had demonstrated doggedness and determination in the past and considered that she would demonstrate those qualities again in pursuing a career as an environmental scientist once the litigation was over. In reaching that conclusion the primary judge had the benefit of seeing the appellant give evidence.
It appears that in arriving at a figure of $40,000, his Honour assessed the appellant's retained earning capacity as approximately two‑thirds of the average salary of an employed environmental scientist of $63,388 (approximately 25 hours work per week at that rate) or approximately half of the rate earned by top‑end employees in Dr Meney's company. In my view, the finding of a retained earning capacity of $40,000 per annum was one which was plainly open to the primary judge on the evidence.
The appellant has failed to demonstrate any error and accordingly I would dismiss ground 3.
Grounds 4 and 5 - deductions for contingencies
Grounds 4 and 5 can conveniently be considered together. By these grounds the appellant challenges the deductions the trial judge made for contingencies. In this respect his Honour said:
As to this future loss it is necessary to have regard to contingencies. In a case such as this there is necessarily a deal of speculation as to what the future would have held for the plaintiff. In addition there are the normal vicissitudes of life. In the plaintiff's case there is the added problem of the pre‑existing maltracking within her knees and also spinal degeneration, all of which may have become symptomatic and affect her ability to do fieldwork. However they were asymptomatic at the time of the motor vehicle accident. I have already noted that not all contingencies are adverse. In my view all of these contingencies are not such as to involve a deduction of more than 15 per cent which is what I would allow against her earning capacity.
I have reached this figure having regard to the position of an environmental consultant. That position is one where the plaintiff would be self‑employed so there would not be any allowance for superannuation. No evidence was led as to whether the figures quoted by Professor Mulvey or Dr Meney reflected expenses that would be incurred by such a person. Given that much of the fieldwork would involve travelling to possibly remote locations one could expect expenses to be so incurred. Accordingly, the contingency basis I have adopted is one so as to make some allowance for this aspect. However, when dealing with her retained capacity as an employed environmental scientist one would expect little or no expenses to be incurred as these would no doubt be incurred by the employer and so I would fix the contingency at 10 per cent for this aspect [685] ‑ [686].
On the appeal, counsel for the respondent submitted that the usual method of calculating loss of earnings was to deduct the figure for retained earning capacity from the figure for the pre‑accident earning capacity and apply a single deduction for contingencies (appeal ts 73 ‑ 74). As I understood it, counsel conceded, however, that it was permissible for the primary judge to deduct, as he had, separate contingencies in determining the appellant's loss of earning capacity and her retained earning capacity respectively (appeal ts 75). There was, moreover, no cross‑appeal by the respondent seeking to challenge the approach taken by the primary judge. It is unnecessary in the circumstances to determine which, if either, is the preferable method.
In Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 497, the High Court described the four factors, apart from death, that were relevant in calculating contingencies as sickness, accident, unemployment and industrial disputes. The court observed that not all contingencies are adverse and that any positive considerations (such as advancement in employment) are also to be taken into account. The court pointed out that contingencies are to be considered in terms of their likely impact on the earning capacity of the injured person concerned, not by reference to the workforce generally.
Professor Luntz in his well‑known text, Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) [6.4.14], suggests that the maximum discount for all contingencies should be under 10% in the average case. He notes, however, that that is much less than the standard 15% allowed in New South Wales and some other jurisdictions.
In this State, in Kember v Thackrah [2000] WASCA 198, Malcolm CJ (with whom Kennedy and Murray JJ agreed) described 15% as 'a very heavy discount' [27]. In Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167 [38], Anderson J (with whom Malcolm CJ and Groves AJ agreed) said that the discount for ordinary contingencies is rarely more than 15% and usually between 5% ‑ 10%.
It must be stressed, however, that while those statements provide some guidance, each case must depend upon its particular facts.
I turn then to the appellant's contention that his Honour erred in the amount of the deduction he made in respect of both the appellant's loss of earning capacity and her retained earning capacity.
As I understand his Honour's findings, he found that a deduction of 15% should be made from the appellant's future loss of earnings as a consultant to take into account the vicissitudes of life and to make some allowance for expenses that the appellant would have incurred in earning her living as a consultant. However, in respect of the appellant's retained earning capacity as an employed environmental scientist, his Honour concluded that no deduction should be made for expenses, as those would be met by the employer, and a deduction of 10% should therefore be made for the vicissitudes of life. In other words, it is, I think, to be inferred from his Honour's reasons at [686] that he made an additional 5% deduction from the appellant's future loss of earnings as a consultant in order to allow for work‑related expenses.
In my respectful view, his Honour erred in doing so. In the first place, it appears that his Honour had in mind expenses which would ordinarily be incurred in the course of earning an income as a consultant, rather than expenses of a contingent nature. The former should be (and indeed, for reasons I am about to come to, I am satisfied were) taken into account in determining the net income that the appellant would otherwise have earned, rather than deducted on the basis of a contingency. Secondly, his Honour erred in concluding that in respect of the figures given in evidence for the earnings of a consultant no allowance had been made for ordinary work‑related expenses.
Professor Mulvey's figures, upon which the primary judge relied, were based on the report in the Census of Population and Housing 2006 of the gross average weekly earnings of a full‑time female environmental consultant in Western Australia (exhibit 2.20). To bring that figure up to August 2008, Professor Mulvey adjusted it on the basis that since 2006 the earnings of an environmental consultant had increased in line with average weekly earnings for the workforce as a whole. He thus derived a figure of $1,583 per week or $82,316 per annum. Importantly, Professor Mulvey used the same sources and took the same approach in calculating the income of an employed environmental consultant. It is, in my view, properly to be inferred that both of the figures calculated by Professor Mulvey were after deduction of any relevant work‑related expenses. There was nothing in Professor Mulvey's report or in his oral evidence at trial to suggest otherwise. Accordingly, his Honour was in error in deducting work‑related expenses as a contingency.
As I have mentioned, it is apparent from his Honour's reasons that he made a deduction of 5% for work‑related expenses in respect of the appellant's loss of earning capacity. Once that error is taken into account it is evident that the primary judge made a deduction of 10% for contingencies in respect of both the appellant's loss of earning capacity and her retained earning capacity. The appellant did not take issue with a deduction of 10% in respect of loss of earning capacity (appeal ts 43). The respondent, on the other hand, appeared to contend that, notwithstanding his Honour had taken expenses into account, the appropriate deduction was 15% and his Honour's decision should not be interfered with (appeal ts 70, 76). I should mention that there was no notice of contention to that effect.
In my view, a deduction of 10% was, in the circumstances, at the upper end of the range. In effect, the primary judge found that a figure of 10% was an appropriate deduction for contingencies (other than expenses) for loss of future earning capacity and I am not persuaded that this court should depart from that figure.
Turning then to ground 5, the appellant contended that a contingency of 10% in respect of the appellant's retained earning capacity was too low and that an appropriate deduction was 20%. It was submitted that a figure of 10% failed to have regard to the difficulty the appellant would have in obtaining and maintaining part‑time employment which would accommodate her physical limitations. Counsel referred to evidence given by the appellant at trial that she had not been applying for positions as an environmental scientist because there had been no suitable positions available (ts 196, 197). I note in passing, however, that the appellant did go on to say that once the court case was out of the way she expected 'to go up to the half‑time work' that Dr Slinger and Dr Yin said she would be able to do (ts 197).
In relation to the appellant's retained earning capacity, the primary judge had earlier found that the appellant's capacity to do the work of an environmental scientist was restricted to desk work - with limitations as to the amount of time she could spend at a desk or computer - and limited fieldwork [552] ‑ [553]. His Honour had found that the appellant would be unable to do the general fieldwork of an environmental scientist [552].
On the question of the extent to which the appellant might encounter difficulty in finding work of a kind that she was capable of doing, the evidence was very limited. Professor Mulvey concluded that, overall, employment prospects for environmental scientists were good (ts 477, exhibit 2.20). Dr Meney gave evidence that environmental work tended to be a little more immune to economic fluctuations than other areas of work (ts 412). In relation to the appellant's limitations, Dr Meney said that in her company it was the practice of environmental scientists to do their own fieldwork. Dr Meney acknowledged, however, that many environmental scientists do not do much fieldwork and the extent to which fieldwork is necessary depends upon the specific area of work concerned. A lot of advisory work could be done based on published data without fieldwork, and in some cases other people could do the fieldwork (ts 408, 416). Dr Meney also expressed the opinion that in addition to excellent technical skills, the appellant had excellent management and communication skills and is capable of managing projects (ts 411).
Dr Semenuik gave evidence that his company had both full‑time and part‑time employees. He too acknowledged that some areas of environmental science do not involve fieldwork (ts 272). In relation to the appellant, Dr Semenuik said his company had submitted a number of tenders since 2006 in which the appellant had been included as one of the environmental scientists who would be involved in the work (ts 275 ‑ 279), although that work had not eventuated as the tenders had not been successful. He considered that the appellant had very good organisational abilities and communication skills, which he lacked (ts 280). Dr Semenuik described the appellant as a 'very good multi‑disciplinary scientist at a high level' (ts 242).
In assessing the appropriate contingency for the appellant's retained earning capacity, the primary judge considered that while, on the one hand, the appellant's 'field of employability' may be restricted and she may have difficulty competing in the labour market because of her disabilities, on the other, she was highly regarded in her field and that might balance things out [682]. His Honour also considered that the appellant had previously demonstrated a doggedness and determination that would be applied to her future participation in the workforce [684]. It was with those factors in mind that his Honour assessed the appropriate contingency at 10%.
The question whether a deduction for contingencies is inadequate or excessive in a particular case is to be approached with considerable caution by an appellate court. The appropriate contingency is 'essentially an exercise in value judgment or in nature, quasi‑discretionary': Koeck v Persic (1996) Aus Torts Reports 81-386, 63,360. An appellate court is not justified in substituting its own figure simply because it would have awarded a different figure if it had tried the case at first instance. It will not interfere with the decision of the trial judge in the absence of an error of fact or law or manifest unreasonableness or injustice: see Koeck v Persic (63,358 ‑ 63,359); Nestle Australia Ltd v McDougall Robert [1998] NSWCA 158; Kember v Thackrah [27] ‑ [29].
In the present case I am not persuaded that any error has been made out. The type of work the appellant could undertake was, as his Honour observed, limited by the nature of her disabilities and that might put the appellant at something of a disadvantage. But the evidence did not establish that the appellant was likely to encounter substantial difficulties in finding work of the requisite nature. His Honour was entitled to take into account that, by reason of her ability and reputation, the appellant was likely to be highly sought after as an employee, even on a part‑time basis. The evidence of Dr Semenuik and Dr Meney supported that conclusion. His Honour was also entitled to weigh in the balance that her ability to obtain work would be enhanced by what he described as her 'doggedness and determination'. In that assessment his Honour had the advantage of seeing the appellant give evidence.
In my view, on the evidence there is no basis upon which this court would be entitled to interfere with the decision of the primary judge. The finding that the appropriate contingency was 10% was one that was clearly open to him.
The result is that I would allow ground 4 of the grounds of appeal and substitute a figure of 10%, and I would dismiss ground 5.
Ground 6 - future domestic help
The appellant contended that the finding of the primary judge that the appellant was entitled to damages for paid domestic and gardening services only to 31 December 2003 was contrary to both the medical evidence and the largely uncontested evidence of the appellant, and was inconsistent with his Honour's own findings of fact. It was submitted that his Honour should have found that the appellant was entitled to such services from the date of the accident to trial, and in respect of the future.
Before turning to those issues, it is necessary to deal with some inconsistencies in the primary judge's reasons on this topic. At [588] his Honour refers to a series of reports of Dr Lipscombe which, his Honour says, support the appellant's need for domestic help of initially four days per week, going down to two days per week, and also help with gardening. His Honour refers to the last report being dated '27 March 2003'. That appears in fact to be a reference to exhibit 1.20, which is a letter from Dr Lipscombe dated 27 March 2002. His Honour summarises Dr Lipscombe's statements in that report as indicating a need for domestic assistance of between six and 12 hours per week [589].
His Honour then refers to Dr Slinger's evidence in a report of 17 February 2003 that the appellant required domestic help of two and four hours per week with a similar amount for gardening. His Honour notes that a later report of Dr Slinger does not refer to the need for domestic assistance [590].
The primary judge concluded:
Doing the best that I can based upon the evidence of Dr Lipscombe and Mr Slinger, I find that on the balance of probabilities the [appellant] did need help throughout the period to the end of 2003. Thereafter the highest the medical evidence reaches is that the [appellant] did have assistance from backpackers and according to Dr Panegyres, it might help her [595].
At [696], the primary judge summarised his findings as follows:
However I have found that the only medical support for that goes, at the very best, to 31 December 2007 [sic, 3003]. As I have noted, the medical evidence seems to support somewhere between six to 12 hours up to 27 May [sic, March] 2002 and I would propose to adopt nine hours. From 23 [sic, 27] March 2002 to 31 December 2002 [sic, 2003] the evidence supports varying amounts for home and garden assistance and I would adopt four hours per week.
I understood counsel for the respondent to concede that the allowance of four hours per week should be from the date of the accident to 31 December 2003, not 31 December 2002 (written submissions pars 17, 19; ts 77), and that the total amount allowed by the primary judge should have been $20,967, not $12,145. In my view, that concession was rightly made and that the date his Honour intended was 31 December 2003.
In contending that damages for domestic help should have included the period from 31 December 2003 to trial, and that provision should have been made for the future, the appellant relied in particular on the evidence of the appellant and Dr Slinger.
The appellant gave evidence at trial that there was certain housework she could not do and other housework that aggravated her condition and which, if she carried it out, then prevented her from working (ts 80). The appellant said that she had been provided with home assistance until 2002. She said she had paid for that assistance herself between 2002 and 2004. From 2004 she had relied on family members, until 2007 when she had engaged a Mrs Mohen for four hours per week. The appellant said that she had also employed backpackers to do gardening and other maintenance (ts 80 ‑ 81).
The medical evidence, however, was much more equivocal. In his report of 28 May 2008, Dr Slinger responded to a question from the appellant's solicitors as to how the appellant's symptoms affected her activities of daily living as follows:
I have detailed in the preceding the manner in which your client's symptoms affect her day‑to‑day activities, requiring paid domestic assistance as well as assistance from her family.
The reference to a preceding passage appears to be a reference to comments made earlier in the report where Dr Slinger had noted that the appellant was receiving domestic help of five hours per week and further noted that the appellant was not able to make beds or undertake gardening.
Dr Slinger dealt with the matter again in his report of 22 January 2009. There he said:
At home she is a single parent, is assisted by her children aged 13 and 15 years, and does receive domestic help, five hours a week to undertake washing the floors, bathroom, general cleaning and making the beds.
In addition, she employs someone to undertake the gardening and house maintenance from a backpacker organisation, she herself does do some sweeping of the laminated floors, uses a dishwasher, puts clothes in the washing machine, tidies up and hangs out the washing, the stretching in that activity she finds is beneficial.
Later in that report, in response to a request for his opinion whether the appellant required domestic assistance, he replied:
[The appellant] is receiving domestic assistance, as I have detailed in the preceding with paid help five hours a week.
The issue of whether the appellant required domestic assistance was not taken up with Dr Slinger in his oral evidence.
There was, in addition to Dr Slinger's evidence, other medical evidence to which the primary judge made reference in concluding that the appellant had not established a need for domestic assistance after 31 December 2003 [591] ‑ [593].
In a report dated 21 April 2005 (exhibit 2.12.1), Dr Suthers, an occupational physician, expressed the view that based on the appellant's claims of pain it appeared the appellant had some restriction in performing her normal duties, although he appeared to conclude that while the appellant found it easier to cope with domestic duties with assistance, she was able to cope if assistance was not available. In his subsequent report of 4 December 2007 (exhibit 2.12.2), Dr Suthers considered that domestic assistance was not required for the appellant's physical injuries. Dr Suthers reiterated that view in his evidence at trial (ts 488 ‑ 489).
In a report dated 13 May 2006 (exhibit 1.47), Dr Panegryes, a neurologist, said that it was 'possible' the appellant might require help for 'some months' with housework, gardening and heavy duties such as vacuuming and cleaning windows.
Dr Prosser, an orthopaedic surgeon, noted in a report dated 31 December 2007 (exhibit 2.4.20) that the appellant reported she could not do repetitive domestic activities or activities such as washing. He considered, however, that domestic help was required more for reasons of stress and anxiety than her physical disabilities and 'would not necessarily be required in the longer term'.
Dr Silbert, a neurologist, expressed the view in a report dated 9 June 2003 (exhibit 2.6.4) that the appellant was capable of carrying out domestic duties. In a subsequent report dated 1 June 2008 (exhibit 2.6.5), Dr Silbert noted that the appellant was receiving significant domestic assistance from her children but queried how much of her need for that assistance was due to psychological factors arising from her symptoms rather than physical disabilities. He expressed the view that her ability to perform many of those functions was likely to improve after her claim was settled. At trial, Dr Silbert said that in respect of her back and neck, for which he had reviewed her, the appellant did not require domestic assistance. He did not offer an opinion in respect of her knee (ts 436).
I am not persuaded that this ground of appeal has been made out in respect of the period after 31 December 2003. It was for the appellant to establish that 'as a result of her injury it became necessary to provide paid assistance directly referable to her personal needs': Robinson v Riley [1971] 1 NSWLR 403, 408.
Dr Slinger's report of 28 May 2008 appears to provide some support for paid domestic assistance but is unclear as to the amount of assistance required or for what period it was likely to be required. Dr Slinger's report of 22 January 2009 refers to the level of assistance the appellant is actually receiving without offering an opinion as to the need for it. None of the other medical evidence provides support for paid domestic assistance after 31 December 2003. Dr Suthers did not consider the appellant needed it. Dr Panegyres, in 2006, was at best equivocal and thought if it was necessary it would be only for 'some months'. Dr Prosser, in December 2007, considered that it was needed more because of stress or anxiety and that it would not be required in the long term. Dr Silbert did not indicate that it was necessary. The primary judge in assessing the credibility of the appellant's evidence on the issue had the benefit of seeing the appellant give evidence and, while his Honour did not make an express finding, it is necessarily implicit in his conclusion that the appellant did not require paid domestic assistance after 31 December 2003 that he did not accept her evidence in that respect.
In my view, no error has been shown. On the evidence the primary judge was entitled to find that the appellant had failed to establish a need beyond 31 December 2003.
It is, however, clear that his Honour erred in calculating the damages in respect of paid domestic assistance to 31 December 2002 instead of 31 December 2003. I would uphold this ground of appeal only to that extent.
Ground 7 - general damages
This head of damage fell to be determined under the Motor Vehicle (Third Party Insurance) Act1943 (WA). Section 3C(2) of that Act provides that the amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded. Section 3C(3) provides that the maximum amount may be awarded only in a most extreme case.
The expression 'non‑pecuniary loss' is defined in s 3C(1) to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life, and bodily or mental harm.
In Southgate v Waterford (1990) 21 NSWLR 427, the Court of Appeal of New South Wales considered the provisions of s 79 of the Motor Accidents Act 1988 (NSW) which are in similar terms to the provisions of s 3C of the Western Australian Act. Gleeson CJ, Kirby P and Meagher JA said:
There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non‑economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'.
… The only criterion for the apportionment prescribed is the comparison of the severity of the non‑economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in 'a most extreme case'. The statutory maximum may only be awarded in the latter case. The judge must then assign the case as found somewhere along the resulting scale.
…
It is likely that, over time, experience will develop in assigning cases on the scale, just as earlier it did in the apportionment required for contributory negligence. But each case will necessarily depend upon its own facts. At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case' (440 ‑ 441).
Those observations have been cited with approval in Thomas v Bass [2006] WASCA 59 and Insurance Commission of Western Australia v Weatherall [2007] WASCA 264. In Weatherall, Buss JA went on to set out the following principles [261]:
1.the expression 'a most extreme case' in s 3C(3) refers to a class of cases rather than to a case 'at the apex of the gradation of injuries': Marsland v Andjelic (1993) 31 NSWLR 162, 183; Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 [53];
2.a judge's assessment of whether a case is 'a most extreme case' within s 3C involves questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment: Dell v Dalton (1991) 23 NSWLR 528, 533 ‑ 534; and
3.an appeal court should not interfere with a trial judge's finding unless satisfied that he or she applied a wrong principle of law, misapprehended the facts or made a wholly erroneous characterisation of the plaintiff's case: see Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30 [96].
In the present case, the primary judge set out quite shortly his reasons for concluding that 17.5% of the maximum amount was an appropriate figure for general damages. Those reasons were as follows:
In this case the plaintiff was a high achiever. The accident has had a significant effect upon her enjoyment of life both socially and professionally.
The accident is now some eight years ago and the plaintiff has had ongoing knee, back and neck problems as well as psychological consequences. The plaintiff has needed aids in the form of a knee brace and takes medication for pain. She also uses a stick for support in case the knee gives way. The plaintiff's knee has given way on a number of occasions leading to exacerbations of pain and disability.
In my view an appropriate assessment of the plaintiff's case would be at 17.5 per cent of the maximum amount which on current allowances for non‑pecuniary loss after deduction of the threshold would amount to $49,500 [636] ‑ [638].
The appellant did not point to any express error by the primary judge but rather submitted that having regard to the findings made earlier in his reasons as to the nature and duration of the appellant's injuries, the assessment of 17.5% was so far below a sound discretionary judgment as to demonstrate error.
I do not accept that submission. The primary judge dealt extensively earlier in his reasons with the appellant's injuries, her permanent disabilities and the effect that her injuries and disabilities had on her. The above reasons which his Honour gave for the award of general damages summarised those findings. In my opinion, having regard to his findings, the primary judge's award was within the range of a sound exercise of the discretion conferred by s 3C of the Motor Vehicle (Third Party Insurance) Act.
I would dismiss ground 7.
Conclusion
I would:
1.allow the appeal in respect of ground 1 and increase the award in respect of this head of damage by an amount of $8,272 to $281,901;
2.allow ground 4 and substitute a deduction of 10% for contingencies;
3.allow ground 6 and increase the award to allow for paid domestic assistance at the agreed figure of $15 per week to 31 December 2003; and
4.dismiss grounds 2, 3, 5 and 7.
Counsel should confer on the calculation of the monetary amounts that results from the findings in relation to grounds 4 and 6, and bring in an agreed minute if agreement can be reached. Failing agreement, I would hear the parties on the appropriate amounts.
MURPHY JA: I agree with Newnes JA.
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