Grinberg v Hunter and Suncorp Metway
[2001] QCA 260
•10 July 2001
SUPREME COURT OF QUEENSLAND
CITATION: Grinberg v Hunter and Suncorp Metway [2001] QCA 260 PARTIES: SHERYL ANNE GRINBERG
(plaintiff/respondent)
v
MANDY LEAH HUNTER
(first defendant/appellant)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(second defendant/appellant)FILE NO/S: Appeal No 2630 of 2001
SC No 69 of 2000DIVISION: Court of Appeal Cairns Circuit PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Mackay
DELIVERED ON: 10 July 2001 DELIVERED AT: Brisbane HEARING DATE: 22 June 2001 JUDGES: Davies and Thomas JJA and Cullinane J
Judgment of the CourtORDER: 1. Appeal allowed.
2. Judgment set aside.
3. Judgment given in the sum of $226,533.20.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – DAMAGES EXCESSIVE – assessment of damages for personal injuries – plaintiff/respondent sustained injuries in a motor vehicle accident – whether damages awarded at trial were excessive – whether trial judge mistaken as to the likely extent of the disabilities suffered as a consequence of the plaintiff/respondent's injuries
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – PAIN AND SUFFERING – whether the amount awarded for general damages was excessive
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – whether the awards for pre-trial economic loss and future economic loss were excessive
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGE – whether the amount awarded for future gratuitous care was excessive
COUNSEL: M Grant-Taylor SC for respondent
R M Stenson for appellantsSOLICITORS: Macrossan & Amiet (Mackay) for respondent
Barry, Beaverson & Stenson (Mackay) for appellants
THE COURT: The appellants, the defendants in an action for damages for personal injuries, seek to challenge in this Court the assessment of damages by the learned primary judge in his judgment of 20 February this year. The total amount of that judgment was $343,093. However the appellants do not challenge all components of that award. Their primary attack is on four components; general damages of $65,000, past economic loss of $21,650, future economic loss of $130,000 and the cost of future gratuitous care of $60,000. It follows from the challenge to the first two of these that they also challenge the amount of interest awarded on those sums and from the second and third that they also challenge the amounts awarded for loss of superannuation in the past and in the future.
In order to understand the appellants' submissions it will be necessary to say something about the respondent/plaintiff's injuries and disabilities and the findings which the learned trial judge made as to the likely extent of these. Although the appellants do not challenge his Honour's findings about her injuries or the nature of the disabilities which she is suffering in consequence of those injuries, they do criticize his Honour's findings as to the likely extent of those disabilities, especially in the future, and their likely effect on the respondent's earning capacity.
The respondent's principal physical injuries were musculo-ligamentous damage to her cervical spine and a soft tissue injury to her left shoulder. She also suffered some anxiety and distress. The injuries to her spine and left shoulder caused her continuing acute pain requiring her to take increasingly higher levels of analgesics. Her consequent disabilities may be identified as:
(a) continuing pain in the neck and left shoulder;
(b) a pain disorder associated with both psychological factors and her injuries;
(c) an adjustment disorder with depressed mood; and
(d) codeine dependence.
The prospect of the respondent recovering from her codeine dependence was good. It is also likely that she will make a gradual improvement from her depression and the associated adjustment disorder. Dr Klug, the only psychiatrist who gave evidence in the case, expressed the opinion that it was most unlikely that the respondent would be left with any major psychiatric disability and that from a psychiatric point of view, she would be able to return to the workforce.
Mr D'Amato, a psychologist whose evidence his Honour plainly accepted, agreed with Dr Klug's opinions just referred to whilst emphasizing that he was not able to comment about psychiatric matters. However he made the point that while the respondent's current level of pain continues she will continue to have psychological problems, presumably associated with the pain.
Dr White, one of two orthopaedic surgeons who gave evidence, expressed the opinion that of those with symptoms of this kind present two years after an injury, virtually all have permanent pain and loss of function. The other orthopaedic surgeon, Dr Nave, said that he could not exclude permanent partial impairment from the accident. The respondent remained in a state of considerable pain 18 months after the accident. In our opinion his Honour was justified in concluding, on the balance of probabilities that it was likely that the respondent's orthopaedic condition, substantially pain in the neck and left shoulder, was chronic.
However neither Dr White nor Dr Nave thought that her orthopaedic condition affected her ability to do the work of a teacher's aide although both were prepared to defer to the opinion of an occupational therapist on that matter. More generally, both thought that she was fit for light work.
His Honour's view was, clearly enough, that whilst psychological counselling and pain therapy, which had been recommended, would be able to deal effectively with the depression and associated adjustment disorder and the respondent's codeine dependence, the extent to which it could reduce the psychological factors associated with the pain was questionable given that the pain which produced those factors would continue. His conclusion was that the respondent would be left with a significant disability as a consequence of her pre-disposition to suffer an enlarged pain response from the sites of her injuries; and he thought that this pain would interfere with her capacity to function at a normal level and specifically with her capacity to work. However overall his Honour thought that her physical well-being and capacity to enjoy life would improve with psychological counselling and treatment and the conclusion of her litigation. It was the extent of the respondent's pain disability and its economic consequences which were in question in this appeal.
Mr D'Amato expressed the opinion that the respondent had improved over the period of the sessions which he conducted and thought that further sessions with her would further improve her. In addition the experts were agreed that she should attend a pain clinic which could effect further improvement. Both the experts and the respondent herself were optimistic about further improvement.
The sum of $65,000 for pain, suffering and loss of amenities is high. In the first place the physical injuries were soft tissue injuries only. Secondly we think that such assessment fails to pay sufficient regard to the resolution of her psychiatric disability and the further reduction in pain in consequence of that, the resolution of the litigation, which Dr Klug thought would have a beneficial effect, and the further treatment envisaged including attendance at a pain clinic. In our opinion an amount of $45,000 under that head would have been adequate.
At the time of her accident the respondent was seeking full-time work as a teacher's aide. The assessments of past and future economic loss were premised on the assumption that, but for her accident, either she would have been successful in obtaining that employment, if not immediately, then fairly shortly, or she would have obtained some other employment at a similar earning rate within a similar time frame. That assumption was challenged by the appellants. They point to the respondent's failure to obtain full-time employment at any time before the accident, to her earnings during the years immediately prior to the accident (her highest nett annual income over those years was $9,500 in the year ended 30 June 1998) and to the absence of evidence of the availability of such employment.[1]
[1]The only evidence was that positions of teacher's aides "came up from time to time".
However his Honour said:
" Prior to the accident the plaintiff and her husband were hoping to have children. In respect of this quest there were difficulties. They had entered an IVF programme. This may well be a possible explanation for her not engaging in permanent full-time employment during this period.
Before the accident they became resigned to the fact that they would not have children. Consequently the search for future employment, both before and since the accident, was of more significance."
Mr Stenson for the appellants submits that his Honour was under a misapprehension as to the facts in this respect and consequently that the conclusion which he drew was erroneous. The only evidence on this question, he points out, was from the respondent to the following effect:
"At the time of the motor vehicle accident my husband and I were attempting to have children. We had planned to have two children. I had commenced using fertility drugs. I have now stopped. I am now not certain whether we would have children in the future."
The impression which we have from this evidence is that the respondent and her husband had commenced an IVF programme only shortly before the accident, that is, that it had not been a long-term project before then. And it is plainly not correct that, before the accident, the respondent had resigned herself to the fact that they would not have children.
Consequently, in our opinion, this evidence does not support his Honour's inference that the desire to have children and the attempts to have children were an adequate explanation for the respondent's failure to obtain full-time employment over the years before the accident. Nor was it correct to conclude that, by the time of the accident, she was resigned to not having children and, consequently, would thereafter be more diligent in her efforts to obtain full-time employment.
Moreover whilst it is correct, as Mr Grant-Taylor for the respondent points out, that there was evidence that the respondent was capable of performing the work as a teacher's aide, there does not appear to be any evidence of the availability of such work or of the respondent's prospects of obtaining full-time work at a comparable rate.[2]
[2]See fn 1.
In our opinion therefore his Honour was not justified in assessing either past or future loss of earning capacity on the basis on which he did. In respect of past economic loss, his Honour arrived at the sum of $21,650 in the following way.
Eighty-five weeks had elapsed between the accident and trial. His Honour allowed a little more than half the full-time rate, that is $200 per week for 70 of those weeks and added two further sums. His Honour took the period of 70 weeks because he thought the respondent may not have found employment immediately. And he took the amount of $200 a week, apparently because of the possibility that for some part of that period she might obtain employment only in part-time work. To that his Honour added the two other sums, $40 a week which she had been earning as a cleaner once a week and $50 a week which she had previously been earning in part-time work in a paper processing firm.
The allowance of as much as $200 per week for 70 weeks was, in our opinion, too high when one has regard to the respondent's previous work history, absent his Honour's explanation for it, and to the fact that, contrary to his Honour's assumption, her attitude to having children had not substantially changed. We would allow $10,000.
The appellants make three criticisms of the addition of these further sums totalling $7,650. In the first place they say it is double counting because she could not do this additional work whilst she was engaged in full-time employment as a teacher's aide. That seems to be correct although the question whether the respondent could have performed this work as well was left unclear. Secondly it was said that to allow the amount for employment as a cleaner was inconsistent with her statement that she was going to leave that employment because her hours of work had been reduced. No doubt she would have done so had she obtained full-time employment but, in the meantime, she may have continued in that employment. So it is perhaps appropriate to allow something for this work. And thirdly the respondent had not earned income from the paper processing firm since it had been acquired by her husband. We think it is reasonable to allow something for other work such as these jobs although substantially less than that which his Honour allowed. We would allow a further $2,000 making the total for past economic loss $12,000.
The amount of $130,000 for future economic loss was $200 per week for 20 years discounted for present value. This was on the basis of a full-time nett salary of $350 per week.
His Honour said, correctly, that the respondent would have no prospect of earning income until the treatment that was proposed had been undertaken and was successful. That was the treatment for her depression, adjustment disorder and codeine dependence. His Honour also said that, assuming that treatment is successful, her prospects will be for limited part-time employment and that if not successful it is likely that she would be permanently unemployable. The appellants do not accept his Honour's unqualified statement that if the treatment is successful her prospects will be for limited part-time employment only. That treatment, together with pain counselling, will probably, they submit, render her capable of full-time employment as a teacher's aide. Nor do they accept that these two extremes, success or failure of the treatment, are the only realistic possibilities. And they submit that his Honour was wrong in assuming that, but for the accident, the respondent would have engaged in full-time work as a teacher's aide for 20 years or more.
We would accept the last of those submissions for the reason given earlier; that the factual basis for his Honour's assumption was incorrect. Although his Honour was entitled to accept the respondent's evidence that it was her intention to engage in full-time employment, in view of her previous work history and the absence of any significant change in her life, the prospects of her fulfilling that intention by obtaining and maintaining full-time employment would not have been high.
What the future now holds for the respondent, in terms of her employability, is less certain. There is some prospect that she will, within a few years, be capable, once again, of full-time employment. There is some prospect that she will be capable of part-time employment only. And there is some, though it seems to us a very slight prospect that the psychological enhancement of her pain condition will continue permanently to prevent her from engaging in any form of employment.
Of course it is never possible to calculate loss of future earning capacity with anything approaching mathematical precision. But in a case of this kind, the imponderables which we have mentioned make assessment difficult. What is clear, however, in our opinion, is that his Honour's assessment of $130,000 is too high. Having regard to the matters which we have mentioned, it seems to us that an amount of $70,000 would be a reasonably generous assessment.
His Honour did not attempt any precise mathematical calculation in order to arrive at the sum of $60,000 for gratuitous future care. No case was made out that the respondent requires future care. These damages are based solely upon the assumption by her husband of very limited additional household duties. However the appellants sought to show by mathematical calculation that this amount was excessive and the respondent sought to show by mathematical calculation that it was very conservative. In this respect also it seems to us the appellants' contention should be upheld. The respondent was already becoming less dependent on her husband for domestic assistance and the probability is that that trend will continue. In those circumstances the sum of $60,000 is, in our opinion excessive and we would substitute the sum of $40,000.
It follows that, in our opinion, the appeal must succeed. We would allow the appeal, set aside the judgment and give judgment for the sum of $226,533.20 made up as follows:
$
General damages 45,000.00
Interest (on $21,000 @ two per cent x 1.5 years) 630.00
Past economic loss 12,000.00
Interest (on $3,780 @ six per cent x 1.5 years) 340.20
Future economic loss 70,000.00
Loss of superannuation (past) – (six per cent x $12,000) 720.00
Loss of superannuation (future) – (nine per cent x $70,000) 6,300.00
Gratuitous care (past) 9,350.00
Gratuitous care (future) 40,000.00
Future treatment –
Codeine dependence 19,100.00
Pain clinic 11,100.00
Future medications 10,000.00
Special damages 1,993.00
TOTAL $226,533.20.
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