Eltin Ltd v Dowsett
[2001] WASCA 101
•28 MARCH 2001
ELTIN LTD -v- DOWSETT [2001] WASCA 101
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 101 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:4/2000 | 16 MARCH 2001 | |
| Coram: | WALLWORK J ANDERSON J GROVE AJ | 28/03/01 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal and cross-appeal dismissed | ||
| PDF Version |
| Parties: | ELTIN LTD MERRILYN DOWSETT |
Catchwords: | Appeal Damages Personal injury Future pecuniary loss Attainment of statutory threshold as condition precedent to award Evaluation of residual earning capacity Onus Failure by plaintiff to mitigate Cross-appeal Sufficiency of evidence of tort-induced need for services |
Legislation: | Workers' Compensation and Rehabilitation Act 1991, s 93D |
Case References: | Abbott v Pacific Industrial Co (WA) Pty Ltd; unreported; FCt SCt of WA; 4 March 1997 Bowen v Tutte (1990) A Torts Rep 81-043 Bugge v Reb Engineering Pty Ltd [1999] 2 Qd R 227 Calder v Boyne Smelters Ltd (1991) 1 Qd R 325 Griffiths v Kerkemeyer (1976-7) 139 CLR 161 Medlin v State Government Insurance Office (1994-5) 182 CLR 1 State Government Insurance Commission v Hitchcock , unreported; FCt SCt of WA; 11 March 1997 Thomas v O'Shea (1989) A Tort Rep 80-251 Van Gervan v Fenton (1992) 175 CLR 327 Baird v Roberts [1977] 2 NSWLR 389 Fahey v Commissioner for Railways (1968) 89 WN (Pt 1) (NSW) 97 Katsikas v St Regis ACI Pty Ltd, unreported; NSWCA; 13 August 1979 Linsell v Robson [1976] 1 NSWLR 249 Van Velzen v Wagener (1975) 10 SASR 549 Woodhead v Barrow (1993) Aust Torts Reports 81-238 Yammine v Kalwy [1979] 2 NSWLR 151 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : ELTIN LTD -v- DOWSETT [2001] WASCA 101 CORAM : WALLWORK J
- ANDERSON J
GROVE AJ
- Appellant
AND
MERRILYN DOWSETT
Respondent
Catchwords:
Appeal - Damages - Personal injury - Future pecuniary loss - Attainment of statutory threshold as condition precedent to award - Evaluation of residual earning capacity - Onus - Failure by plaintiff to mitigate - Cross-appeal - Sufficiency of evidence of tort-induced need for services
Legislation:
Workers' Compensation and Rehabilitation Act 1991, s 93D
Result:
Appeal and cross-appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr M W Odes QC & Mr J Jacobsen
Respondent : Mr N J Mullany
Solicitors:
Appellant : McAuliffe Williams & Partners
Respondent : Bradford & Co
Case(s) referred to in judgment(s):
Abbott v Pacific Industrial Co (WA) Pty Ltd; unreported; FCt SCt of WA; 4 March 1997
Bowen v Tutte (1990) A Torts Rep 81-043
Bugge v Reb Engineering Pty Ltd [1999] 2 Qd R 227
Calder v Boyne Smelters Ltd (1991) 1 Qd R 325
Griffiths v Kerkemeyer (1976-7) 139 CLR 161
Medlin v State Government Insurance Office (1994-5) 182 CLR 1
State Government Insurance Commission v Hitchcock , unreported; FCt SCt of WA; 11 March 1997
Thomas v O'Shea (1989) A Tort Rep 80-251
Van Gervan v Fenton (1992) 175 CLR 327
Case(s) also cited:
Baird v Roberts [1977] 2 NSWLR 389
Fahey v Commissioner for Railways (1968) 89 WN (Pt 1) (NSW) 97
Katsikas v St Regis ACI Pty Ltd, unreported; NSWCA; 13 August 1979
Linsell v Robson [1976] 1 NSWLR 249
Van Velzen v Wagener (1975) 10 SASR 549
Woodhead v Barrow (1993) Aust Torts Reports 81-238
Yammine v Kalwy [1979] 2 NSWLR 151
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Grove AJ and to the orders proposed by his Honour.
2 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Grove AJ. I entirely agree with those reasons and do not wish to add anything.
3 GROVE AJ: This appeal and cross-appeal are directed to elements of the judgment of his Honour Judge L A Jackson delivered on 21 December 1999 wherein the respondent (plaintiff) was awarded $282,641.60 damages against the appellant (defendant).
4 The respondent was employed by the appellant as a dump truck driver at the Jundee Mine at Wiluna. She was allocated a Caterpillar 100-tonne vehicle in which the hydraulic lifting and cushioning device governing the driver's seat was defective. The defect allowed the seat to "bottom" when the truck moved over rough terrain as was frequently the case. The respondent was left without cushioning effect and pain in her lower back was precipitated. The respondent was in the employment of the appellant for about 15 months and was allocated the particular defective truck about one to two months before 30 October 1997 on which date she ceased work. Liability was admitted at trial.
5 The ingredients of the award of damages assessed by the learned trial Judge were as follows:
General damages $32,850.00
(non-pecuniary loss)
Past pecuniary loss -
Earning capacity $95,026.20
Superannuation $1,519.84
Medical expenses $28,073.00
Interest $1,861.02
Future pecuniary loss -
Earning capacity $102,390.79
(Page 4)
- Superannuation $8,920.75
Medical expenses $12,000.00
$282,641.60
Grounds
6 The grounds of appeal were expressed as follows:
1. The learned trial Judge erred in law in holding that it is incumbent upon a defendant in a case where the plaintiff has lost a pre-accident earning capacity to prove the value of any residual capacity both as to the availability of work and the rate payable for such work.
The learned trial Judge should have held that it is a question to be determined on the facts of each case whether the plaintiff is carrying out the onus of proving actual loss or whether the stage is reached that the plaintiff has adduced sufficient evidence to cause an evidentiary burden to shift to the defendant or whether the situation is that the defendant is carrying the onus of showing that the plaintiff has not mitigated the loss.
2. Having correctly held that:
(a) the Respondent had failed to mitigate her loss;
(b) the Respondent's residual earning capacity, had she mitigated her loss, would have been a capacity to work as a Grade 3 clerk; and
(c) the award rate for a Grade 3 clerk is $382.00 nett per week,
the learned trial Judge should have held,
(d) in the absence of any assertion by the Respondent that her prospects of obtaining work in Mandurah were less favourable than any corresponding prospects she might have had in the Perth metropolitan area; and/or
(Page 5)
- (e) in the absence of any evidence supporting any such assertion,
- that no evidentiary burden was cast upon the Appellant in relation to the comparison (if any) between job opportunities available in Perth and those available in Mandurah, and that the Respondent's residual earning capacity for the purposes of assessing her future pecuniary loss should simply be regarded as a capacity to earn the award rate of $382.00 nett per week.
3. The learned trial Judge erred in law in holding that the "prescribed amount" for the purposes of determining whether the disability to the Respondent was a "serious disability" was $109,650.00.
The learned trial Judge should have held that the correct figure for the prescribed amount was the figure applicable as at the date of judgment, 21 December 1999, namely $119,048.00.
4. The learned trial Judge erred in concluding that the Respondent should be awarded $282,641.60 in damages.
The learned trial Judge should have held that the Respondent's "future pecuniary loss", when correctly assessed, was not of an amount at least equal to the "prescribed amount", and that the Respondent therefore could not be awarded any damages at all.
5. The learned trial Judge erred in failing to find that the Respondent was able to work as a real estate agent.
6. The learned trial Judge erred in failing to find, in light of the Respondent's symptom exaggeration, that she had a residual earning capacity of 50 per cent.
7 The grounds of cross-appeal were expressed as follows:
1. The sum of $102,390.79 awarded by the Learned Trial Judge for future loss of earning capacity was so manifestly inadequate and below the bounds of a sound discretionary judgment so as to constitute an error of fact and law.
(Page 6)
- 2. The sum of $8,920.75 awarded for loss of the superannuation benefits which would have otherwise been paid by the Respondent's (Plaintiff's) employer was so manifestly inadequate and below the bounds of a sound discretionary judgment as to constitute an error of fact and law.
3. The failure by the Learned Trial Judge to award the Respondent (Plaintiff) any damages for future domestic services was wrong in fact and law.
8 A notice of contention by the respondent was not pursued at the hearing of the appeal.
Threshold
9 It is convenient to deal first with a threshold issue to which grounds 3 and 4 in the appeal are pertinent.
10 The award of damages is potentially inhibited by s 93D of the Workers' Compensation and Rehabilitation Act 1991 which provides (so far as is relevant):
"(1) Damages can only be awarded if the disability … is a serious disability.
(2) A disability is a serious disability if, and only if -
(a) the degree of disability would, if assessed as prescribed in subsection (3) be 30% or more; or
(b) the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount."
(Page 7)
12 Fulfilment of the requirement specified in s 93D is a condition precedent to the availability of jurisdiction to award damages. The degree of disability as referenced in s 93D(2)(a) was assessed at 15 per cent and it is common ground that focus in this case is limited to consideration of subsection (2)(b). In its terms, s 93D(2)(b) directs attention exclusively to the assessment of future pecuniary loss as a discrete element in an assessment of damages.
13 Counsel for the respondent advanced a proposition in two parts. First, he challenged the correctness of separate attention being paid to the element of future pecuniary loss. He referred to State Government Insurance Commission v Hitchcock , unreported; FCt SCt of WA; 11 March 1997 in which there was cited with approval and applied a decision of the Full Court of the Supreme Court of Queensland in Calder v Boyne Smelters Ltd (1991) 1 Qd R 325, in particular the remarks of Cooper J:
"[T]he judgment [for damages for personal injuries] is a global award to compensate for all the detriments suffered and it is made only once by the payment of one lump sum. Thus, although an assessing judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated (see Gamser v The Nominal Defendant (1977) 136 CLR 145 per Stephen J at 149-150 with whom Gibbs J agreed at 148 and Paul v Rendell (1981) 55 ALJR 371(PC) at 376-377). It is the allocation of particular sums which discloses the process of reasoning which led to the exercise of judicial discretion which itself has given effect to in the final award in the form of a single lump sum … .
What is appealed against is the total sum awarded ie the discretionary judgment as reflected in the lump sum award. Whether the appeal is successful depends upon the answer to one ultimate question. That question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt."
14 There is ample authority congruent with the principles mentioned. However, such principles cannot operate to override an express statutory mandate such as appears in s 93D(2)(b).
(Page 8)
15 Second, counsel invited examination of the "proportionality" of the global amount of judgment against the injuries and losses of the respondent and he submitted that (on the assumption that the award was not categorised as excessively generous) such observation would lead to a conclusion that appellate intervention should be restrained. Putting to one side the question of the nature of "proportionality" of damages at common law or damages assessed within the parameters of statutory "caps" which does not require detailed analysis or answer for present purposes, it suffices to state that the creation of a requirement to fulfil the threshold test before damages can successfully be claimed is the unambiguous intention of parliament as legislated in the terms of s 93D. The circumstance that the threshold point is arbitrary does not place its establishment outside of legislative power, nor is there any warrant for a court to do otherwise than to implement its clear terms.
16 I would reject the respondent's submission. However, the issue raised by ground 4 is dependent for resolution upon the earlier grounds.
Grounds 1, 2, 5 and 6
17 The remaining grounds of appeal (1, 2, 5 and 6) are an aggregated attack upon the assessment of $102,390.79 for future economic loss and it is convenient to deal with them together.
18 The respondent was born on 20 December 1953. Her first marriage had been dissolved and she was remarried. There were no factors of family or relationship which would indicate obstruction to her exercise of working capacity prior to injury.
19 The learned trial Judge recorded his reasoning in part of his judgment which I extract:
"The plaintiff said her intention was to work in the mining industry driving dump trucks for about 10 years. She had been employed by the defendant since September 1996. She has based a calculation for future economic loss on a further 7 years in the industry. In my opinion that is a little over-generous. Although she had since leaving school (apart from time taken to bring up her children) been employed fairly consistently, her work history showed she had never been employed in the one job for anything like 10 years. Her longest period of work was 5-6 years employed as a real estate agent in Mandurah. The mining industry, as is well known, is not reliable in that the
(Page 9)
- viability of mines will depend on the ultimate prices available and contractors such as the defendant may or may not keep the same contracts indefinitely. In my view 5 years would be a reasonable period of time for the purpose of calculating loss of earning capacity into the future. This does not refer to the usual vicissitudes of life. The parties are agreed that a 5 year multiplier is 226.3 and of course the 6 per cent multiplier table should be used.
The defendant has argued that at least from the date of trial the plaintiff has a residual earning capacity as a grade 3 clerk the award rate for which is net $382 per week. The plaintiff accepts some allowance should be made for residual incapacity but argues $200 per week would be a reasonable allowance. It is of course incumbent upon a defendant in a case where the plaintiff has lost a pre-accident earning capacity to prove the value of any residual capacity both as to the availability of work and the rate payable for such work. No evidence was adduced by the defendant. The plaintiff lives in Mandurah where there may be less job opportunities than in the Perth metropolitan area. I consider the wage rate should be reduced by $100 to take into account such factors. The plaintiff's residual earning capacity should therefore be valued at $282 per week. I accept the plaintiff's argument that 8 per cent deductions for contingencies is appropriate; there are positive contingencies which should be taken into account.
I therefore calculate the plaintiff's loss of earning capacity as a dump truck driver in the mining industry as follows:
$773.80 - $282 = $491.80
$491.80 x 226.3 = $111,294.34
Less 8% for contingencies = $8,903.55
Total $102,390.79
I would make no award of damages for the plaintiff for loss of future earning capacity beyond 5 years. In her evidence she stated it was her intention after leaving the mining industry to return to Mandurah and to enjoy life. She certainly expected to work but clearly not at any higher level than I have assessed her residual earning capacity. It is therefore inappropriate that there
(Page 10)
- should be any further award for future loss of earning capacity than I have already allowed."
20 A significant thrust of the appellant's challenge was directed to his Honour's statement:
"It is of course incumbent upon a defendant in a case where a plaintiff has lost a pre-accident capacity to prove the value of any residual capacity both as to the availability of work and the rate payable for such work."
21 Reference was made to Thomas v O'Shea (1989) A Tort Rep 80-251 where in a joint judgment Malcolm CJ and Wallace J (Kennedy J agreeing) said:
"The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at p 657 per Barwick CJ; Van Velzen v Wagener (1975) 10 SASR 549 at p 550 per Bray CJ; and Linsell v Robson (1976) 1 NSWLR 789 at pp 253-254 per Hutley JA; and at pp 254-255 per Glass JA."
22 These remarks were explained in the later case of Bowen v Tutte (1990) A Torts Rep 81-043 where Malcolm CJ wrote:
"It has been suggested that it was for the appellant in the discharge of the onus of proof of loss to lead evidence of the type of work still open to her, the availability of such work and the likely earnings from it. It was further suggested that in the absence of such evidence the appellant would have failed to prove her loss of future earning capacity. I am unable to accept these suggestions. They are inconsistent with the authorities referred to in Thomas v O'Shea. In this respect it is important to remember that nothing said in Thomas v O'Shea departed from the basic proposition that the legal burden of proof of loss rests on the plaintiff and that this includes "the quantification in money that should be adopted in the sum awarded": Watts v Rake (1960) 108 CLR 158 at p 159 per Dixon CJ. Thomas v
(Page 11)
- O'Shea was concerned with the circumstances under which the evidentiary burden may shift having regard to the state of the evidence in that case."
23 As a statement of principle and in the absence of context, the challenged remark of the learned trial Judge was wrong. It does not follow, however, that the making of the statement in this case demonstrated that his Honour had fallen into error in the damages assessment which he ultimately made. The state of the evidence was that the respondent had proved a permanent incapacity to return to employment driving a 100-tonne dump truck or similar. The contrary was not argued. It was agreed that her net weekly income in that occupation could be taken at $773.80 per week. The respondent gave evidence of the range of her talents and her subjective estimates of abilities and disabilities. It was not suggested that the evidence showed that the respondent had the necessary qualifications or experience for employment as a clerk but the appellant sought to use the rate of earning of a grade 3 clerk ($382 net per week) as a guide to the evaluation of residual earning capacity. As his Honour recorded, the respondent argued for use of $200 per week as a guide. Again, this was not related to any particular proposed occupation of the respondent as an individual.
24 As already noted, the extremes of both submissions were rejected and a figure of $282 per week was chosen for guidance purposes. I am unpersuaded that that selection has been shown to be wrong and I consider that it lies within the range of the sound exercise of his Honour's discretionary judgment. It did not bespeak error to observe that employment opportunities may be less outside than inside the capital metropolitan area. The judgment manifests a practical application of the further remarks of Malcolm CJ in Bowen v Tutte:
"Where it is clear that the plaintiff has suffered a loss of earning capacity, as where there has been a total loss of capacity to earn in the occupational [sic] profession for which the plaintiff has previously been employed, the Court will do its best to place a value on that loss, notwithstanding the absence of evidence of the availability of employment within the plaintiff's residual capacity and evidence of the amount which could be earned in such employment: see, for example, Ashford v Ashford (1970) 44 ALJR 195; Chelini v Northern Territory Port Authority (1976) 12 ALR 519; and Dessent v The Commonwealth (1977) 13 ALR 437 at P 447 per Mason and Aickin JJ."
(Page 12)
25 Senior counsel for the appellant directed attention to particular findings in the judgment. First, that the respondent was "guilty of symptom amplification" in that most doctors had said that her expressed symptoms were in excess of what might reasonably be expected from objective examination. It needs to be noted, however, that there was no finding that such amplification was a consequence of conscious falsification of symptoms. It was not suggested that the respondent was without symptoms at all. A medical expert (Mr Bannan) reported "a significant functional overlay".
26 Second, reference was made to a finding that the respondent had failed to mitigate her own loss. There were elements which accumulated to this finding. Shortly before trial, the respondent wrote to some 30 businesses in her local area of residence seeking full or part-time employment. In her evidence, she accepted that she would not have been able to accept any resultant offer. The respondent had declined to participate in work trials proposed by the appellant. His Honour did not detail these proposed trials in his judgment but there are descriptions in the evidence. One involved return at short notice to Wiluna. The other was an invitation to explore the purchase of some unidentified small business enterprise. Although his Honour found the refusal to explore the latter "quite extraordinary", he accepted that in this respect she had acted on legal advice and he found it inappropriate that her refusal should "disadvantage her".
27 In similar vein to the submissions about shift of the burden of proof of the value of retained earning capacity, submissions were made concerning asserted error of the learned trial Judge in imposing a burden of proof on the appellant in respect of the respondent's failure to mitigate. Reference was made to the observation of Pidgeon J in Abbott v Pacific Industrial Co (WA) Pty Ltd; unreported; FCt SCt of WA; 4 March 1997:
"… if the respondent (employer) discharged the onus of showing a failure to mitigate loss it follows that the evidentiary burden referred to in Thomas v O'Shea does not arise."
28 I respectfully agree. However, in the present case his Honour made the finding contended for by the appellant. The failure of the respondent to mitigate does not deprive her of all entitlement to damages. The position is eloquently stated in classical allegory by Chesterman J in Bugge v Reb Engineering Pty Ltd [1999] 2 Qd R 227 at page 228:
(Page 13)
- "In assessing damages in this type of situation, the court is obliged to steer a course between the Scylla of requiring the plaintiff to strictly prove the financial consequences of his injury and the Charybdis of resolving every uncertainty by making assumptions in favour of the plaintiff because the defendants are compulsorily insured. Where a plaintiff attempts to deceive the court by misstating the severity of his injury and overstating his incapacity for work, the task of the court in finding the true extent of the disability and its financial consequences is much harder. In such a case the court does not have to veer so far from Scylla."
29 The appellant does not succeed in showing that his Honour failed to take into account the findings which he had made. There was evidence that the respondent had at one time worked as a real estate agent but the mere existence of this evidence falls far short of demonstrating that it was erroneous not to find that the respondent was able to earn income as such. The issue was concerned with the evaluation of the respondent's residual capacity and not what tasks that, considered in isolation, she may have been able to perform. Performance ability in turn raises the question of ability to undertake such tasks to the extent that would be required to sustain any employment.
30 I am unpersuaded that error can be discerned in the failure to determine that the respondent's residual capacity was, as stated in ground 6, 50 per cent. If this is meant to refer to the respondent's actual pre-injury earnings, then it ignores the uncertainties recognised by his Honour to exist in the mining industry. If it is intended to refer to something else, then what is to be taken as 100 per cent must be entirely speculative. As I have already observed, the case was conducted below upon counter-contentions that the evaluation of the respondent's residual capacity should be measured against the wage of a clerk at $382 net per week or $200 per week. His Honour's use of $282 per week as a guide has not been shown to be tainted by error.
Cross-Appeal Grounds 1 and 2
31 These grounds are related and any variation of the calculated damages for future superannuation loss is dependent upon intervention to alter the award for future loss of earning capacity.
32 In support of these grounds, the respondent argued that the learned trial Judge should have capitalised the net weekly earnings of the
(Page 14)
- respondent in her pre-injury employment over seven years. The period represents the balance at the date of trial of the 10 years which the respondent testified she intended to continue in that employment. It was submitted that the capital sum should then be discounted by 20 per cent to allow for retained earning capacity and adverse vicissitudes. I observe in passing that his Honour had applied a discount of 8 per cent in respect of the latter and neither party directly challenged this. The submission may therefore be taken to involve evaluation of retained earning capacity as 12 per cent of the earnings of a dump truck driver.
33 There was evidence that the respondent had been employed fairly consistently since leaving school but had never been in one job for anything like 10 years. The longest span was as a real estate agent for five to six years or about half the intended time claimed in connection with the job at Wiluna. Taking the factors which he mentioned into account, Jackson DCJ used the period of five years for the purpose of future earning capacity loss. The processes of his reasoning, as expressed, manifested no error. In the context of the evidence there are multiple permissible approaches to the determination of appropriate damages for loss. That chosen by his Honour was comfortably within the range of the exercise of his discretions.
34 For reasons given in dealing with the grounds in the principal appeal, it is not shown that this Court should intervene to vary the evaluation of residual earning capacity assessed in the judgment below.
Cross-Appeal Ground 3
35 There was no award for the provision of services for the respondent. The issues were dealt with by the learned trial Judge in these terms:
"On the basis of my findings that the plaintiff has exaggerated her symptoms, I am not satisfied that her capacity for ordinary domestic chores has been reduced to such a degree as to warrant any allowance under this heading. During the course of argument the plaintiff seemed to have shifted ground somewhat and was seeking, at least in the future, an award for future domestic services at 3 hours per day at a rate of $13 per hour. The $13 per hour was agreed but the entitlement was disputed. I would make no allowance for any such item on the evidence in this case. Firstly the plaintiff has not satisfied me that her condition would warrant such an expense. Secondly no such expense has been incurred in the past and I do not accept that
(Page 15)
- the plaintiff would be likely to incur such expenses into the future."
36 The first of his Honour's enumerated findings is to be understood as a finding that the respondent has not proved a tort induced need which is beyond what she might receive in the mutual give and take of her relationships with other people, obviously her spouse in particular.
37 In Griffiths v Kerkemeyer (1976-7) 139 CLR 161 Gibbs J (as he then was) wrote, "The matter should, as it were, be viewed in two stages. First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at cost?" at page 168.
38 The second part of the postulated question must now be seen as referable to assessment of the need for services and not to whether any need is or may be productive of financial loss: Van Gervan v Fenton (1992) 175 CLR 327; Medlin v State Government Insurance Office (1994-5) 182 CLR 1. I would take the reference of the learned trial Judge to warranting expense in that light. That is confirmed by the second enumerated finding where his Honour notes the absence of suggestion of the incurring of actual expenses as distinct from claims that gratuitous services may have been or would be provided.
39 It was contended that the evidence of a medical expert (Mr Slinger) supported the respondent's claim that she required three hours of assistance (per week). His testimony was:
"The plaintiff, Mrs Dowsett, has given evidence that her husband has largely taken over the role of housekeeper. To paraphrase what she's saying, he doesn't duplicate the services that she used to perform to the same standard and she could do with about 3 hours of help a week. What have you to say about that from your knowledge of her?---I'm not quite sure how you want me to answer that. If you want me to say that Mrs Dowsett would benefit by having home help for 3 hours - which would minimise her symptoms, I would say, yes. If you ask me to say could Mrs Dowsett do her housework, I would say she probably could, but she would suffer and she would do it very slowly, so to minimise her symptoms I would agree that she would benefit by either help from her husband or help from somebody from outside."
40 That evidence does not expressly support the submission that the services were required but insofar as the witness testified that they may be
(Page 16)
- beneficial, it was for his Honour to determine whether need had been demonstrated in the context of all his findings and, obviously, prominently, the finding that the respondent had been "guilty of symptom amplification" to medical examiners including Mr Slinger.
41 This ground is not made out.
Conclusion
42 I would dismiss the appeal and the cross-appeal.
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