Insurance Commission of Western Australia v Weatherall
[2007] WASCA 264
•4 DECEMBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- WEATHERALL [2007] WASCA 264
CORAM: McLURE JA
PULLIN JA
BUSS JA
HEARD: 14 JUNE 2007
DELIVERED : 4 DECEMBER 2007
FILE NO/S: CACV 93 of 2005
BETWEEN: INSURANCE COMMISSION OF WESTERN AUSTRALIA
Appellant
AND
ALISON HARMIONI WEATHERALL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
Citation :WEATHERALL -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2005] WADC 135
File No :CIV 1974 of 2003
Catchwords:
Personal injury - Motor vehicle accident - Assessment of damages - Past loss of earning capacity - Future loss of earning capacity - Discount for contingencies - Nonpecuniary loss
Appeals - Inconsistent findings of fact by trial judge - Whether inconsistent findings are irreconcilable - Whether appeal court can substitute its own findings - Damages reassessed for past and future loss of earning capacity
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C
Result:
Appeal dismissed
Cross-appeal allowed
Damages for past and future loss of earning capacity reassessed
Category: B
Representation:
Counsel:
Appellant: Ms B A Mangan
Respondent: Mr B L Nugawela
Solicitors:
Appellant: Lavan Legal
Respondent: S C Nigam & Co
Case(s) referred to in judgment(s):
Bowen v Tutte (1990) A Tort Rep 81‑043
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dell v Dalton (1991) 23 NSWLR 528
Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30
Eltin Ltd v Dowsett [2001] WASCA 101
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Marsland v Andjelic (1993) 31 NSWLR 162
Pollock v Wellington (1996) 15 WAR 1
Southgate v Waterford (1990) 21 NSWLR 427
Thomas v Bass [2006] WASCA 59
Thomas v O'Shea (1989) A Tort Rep 80‑251
Van Gervan v Fenton (1992) 175 CLR 327
McLURE JA: This is an appeal from an assessment of damages for personal injuries suffered by the respondent in a motor vehicle accident on 7 January 1999. The relevant facts, evidence and grounds of appeal are set out in the judgment of Buss JA.
The appellant appeals from the award of general damages and the awards for past and future economic loss. The respondent cross‑appeals from the awards for past and future economic loss. I would dismiss the appellant's challenge to the award of general damages for the reasons given by Buss JA. The appeal and cross‑appeal in relation to economic loss are related.
Past economic loss ‑ appeal
The respondent's twins were born on 27 March 1997. In December 1997 the respondent returned to part‑time work as a photo laboratory technician at Kmart. The accident happened on 7 January 1999. The accident caused injuries to the respondent's lumbar and cervical spine including a disc protrusion at the L5 ‑ S1 level, annulus tears at the L5 ‑ S1 and L4/5 levels and compression of the right S1 nerve root. Immediately prior to the accident, the respondent was working 12 hours per week at Kmart. The respondent did not return to work after the accident. The respondent's daughter has mild cerebral palsy and her son suffered an attack of meningitis in July 2003 resulting in speech and learning difficulties.
The trial judge awarded the sum of $52,240 for past loss of earning capacity which was divided into four periods. The first period was from the date of the accident to February 2002 when the twins commenced school. The trial judge awarded 100% of what the respondent would have received working part‑time (8 hours per week) as a photo laboratory technician.
The second period was the balance of 2002. The trial judge awarded 90% of what the respondent would have received working half time (20 hours per week) as a photo laboratory technician.
The third period was in 2003. The trial judge found that as a result of her son's illness, the respondent would not have worked for two months. Otherwise she awarded 50% of what the respondent would have received working half time as a photo laboratory technician from September to December 2003 and 90% of what she would have received working half time in the balance of that year.
The fourth period was from 2004 to July 2005 (the date of judgment) for which the trial judge awarded 90% of what the respondent would have received working half time as a photo laboratory technician.
The trial judge also deducted a further 10% for contingencies from the total of the four periods comprising the past economic loss.
The appellant contended the respondent should not have received any award for past economic loss because the trial judge, accepting the evidence of Dr Rosenthal, had found at [48] that the respondent retained the capacity to undertake the duties of a photo laboratory technician at least on a half time basis and at [58] that 'it was [the full‑time care of her children] that prevented her from returning to her duties as a photo lab technician'.
These findings in isolation are inconsistent with the trial judge's findings at [70] ‑ [72] and with her assessment of the amount of the respondent's past economic loss.
The trial judge stated:
I am satisfied based on the evidence of the extensive duties the [respondent] undertook as primary carer for her two children that even if she had not been injured, there was no chance of her working full time before the twins reach the age of 13 in 2010. If the [respondent] had not been injured in the motor vehicle accident I believe there is a 90 per cent chance she would have continued to work part time until the twins commenced school in 2002. But I must bear in mind that during 2003 Jack was severely ill. That is an historical fact that has been established. The [respondent] would not have been able to work at all for the two months she and her husband lived near PMH to be near Jack. And because of Jack's extra needs as he recovered from his illness I believe there was only a 50 per cent chance that the [respondent] would have returned to work at all that year.
From 2004 to 2010 when the twins will be 13 years of age if the [respondent] had not been injured I am satisfied there was a 90 per cent chance she would have worked half time.
These findings mean that even if the [respondent] had not been injured in the motor vehicle accident she was unlikely to have fully exercised her earning capacity because of her maternal duties. But the effect of the motor vehicle accident has been to stop her from working at all. In these circumstances I will assess damages for loss of earning capacity based on the loss of the exercisable earning capacity she retained after the birth of the twins [70] ‑ [72]. (emphasis added)
In order to determine whether the findings are irreconcilable it is necessary to consider them in the context of the reasons as a whole and the live issues at trial.
The finding at [48] relates to the respondent's retained work capacity. There was a conflict of expert evidence about whether the respondent would ever again have the capacity to work as a photo laboratory technician. Professor Harper, a specialist in occupational medicine, gave evidence that the respondent would never be able to return to her duties as a photo laboratory technician. Dr Rosenthal, a specialist in rehabilitation medicine, had a contrary view. After referring to Dr Rosenthal's evidence that he believed the respondent had the capacity to work half time as a photo laboratory technician and that her capacity would increase as her fitness increased, the trial judge said:
Given Dr Rosenthal's direct experience with the work of a photo lab assistant I accept his opinion that the [respondent] retains the capacity to undertake these duties at least on a half time basis [48].
Although Dr Rosenthal stated in a report dated 5 September 2002 that the respondent had a present capacity to work half time as a photo laboratory technician, the trial judge does not in [48] or elsewhere in her reasons expressly direct her attention to whether the respondent had retained working capacity prior to trial or make an express finding on that subject. An affirmative finding would be directly inconsistent with the specific express finding at [72] that the effect of the motor vehicle accident had been to stop the respondent from working at all until the time of trial. Moreover, the trial judge proceeded on the basis that the 50% retained earning capacity related only to future loss of earning capacity. Thus, it is apparent that the judge accepted Dr Rosenthal's opinion only so far as it related to the respondent's future residual capacity.
Having regard to the trial judge's findings as to the nature and extent of the respondent's pain and suffering, that conclusion was reasonably open on the evidence. In particular, her Honour said:
The [respondent] has suffered an extremely painful injury. Coming as it did when her twins were not yet two years of age, the effects of her injury have had a severe impact on her ability to be the kind of wife and mother she had set out to be … Her pain continues even now at trial, although she has had some relief since Dr Salmon began his treatments in 2002, some three years after the accident at around the time a coughing fit had led to extreme pain and a week's total disability [96].
The respondent's condition and symptoms (and thus her work capacity) at trial was not representative of her pre‑trial condition and symptoms. Thus, [48] should be read as being confined to the respondent's retained work capacity as from the date of judgment. This is consistent with the weight of the expert evidence.
The finding at [58] relates to the hypothetical question of whether, and if so on what basis, the respondent would have continued working if the accident had not occurred. The respondent's evidence was that but for the accident she would have recommenced working full‑time as a photo laboratory technician. The appellant contended that the respondent would not have worked at all because of the children's needs.
The finding at [58] is ambiguous. If it was intended to apply to all work (part time or full time), that finding is also directly inconsistent with the findings at [70] ‑ [72] and the assessment of past economic loss. In the context of the reasons as a whole, the finding at [58] can only sensibly be read as a reference to the respondent being prevented from returning to full time duties as a photo laboratory technician. Moreover, notwithstanding Ms Pennefather's record of her conversation with the respondent in March 2000 (which was admitted as going to credit) the strong weight of the evidence was against a finding that the respondent would not have returned to work even if the accident had not occurred. Her prior work history and the family's financial circumstances pointed strongly to the contrary.
The findings of the trial judge can and should be reconciled in the ways indicated. I would dismiss ground of appeal 2.
Past economic loss - cross‑appeal
Ground 1 of the cross‑appeal challenges the trial judge's multiple adjustments for contingencies. The respondent claims there should have been no deduction for negative contingencies or alternatively, a discount of no more than 10%.
The approach taken by the trial judge was to make a specific discount for the possibility that the respondent would not return to part‑time work. Save for the third period (where the discounts ranged from 10% to 100%) and the first period, the specific discount was 10%. The trial judge made a further 10% discount for all periods for general vicissitudes which I assume were intended to cover matters such as sickness, accident, unemployment or industrial disputes.
Earning capacity, both past and future, must be assessed by reference to what the respondent would have been able to earn but for the accident‑caused injuries. Where, as here, the court is concerned with a hypothetical situation, it may and often will be appropriate to make a deduction for contingencies. In considering whether to make an allowance for contingencies and if so, the quantum thereof, the individual circumstances of each claimant must be considered. The primary adverse contingency in this case derives from the needs and demands of the respondent's children. The 100% and 50% reductions for parts of 2003 are based on actual events and should not be disturbed. Otherwise, a 10% deduction for the other relevant times is reasonable. However, having regard to the respondent's pre‑accident work history particularly from December 1997 to the date of the accident, the additional 10% discount produces a total discount that is outside a sound range. On that basis, the past loss of earning capacity would be assessed at $58,044. I would uphold ground 1 of the cross‑appeal.
The respondent also contended that the judge erred in using 8 hours per week as the starting point for the calculation of the respondent's past loss of earning capacity (ground 2). The trial judge used that rate only for the first period. The respondent's unchallenged evidence was that she was working 12 hours per week at the time of the accident. The trial judge ought to have used the rate of 12 hours per week for the first period. On that basis, the respondent would have earned an average of $180 per week for 160 weeks which equals $28,800. I would uphold ground 2.
Finally, the respondent contended (ground 6) that the trial judge erred in failing to find that, but for the accident, the respondent would have returned to full time work as a photo laboratory technician at Kmart in 2003. The trial judge found that the respondent would not have returned to full time work until 2010 when the children were aged 13.
The specific needs of each of the respondent's children are detailed in [62] ‑ [63] of the reasons. They are consistent with the evidence. The respondent's husband worked very long hours. Although the respondent's mother, Mrs Betts, had provided considerable assistance to her daughter, she was not asked and did not give evidence as to her availability to look after the children and attend to their needs in the event the respondent returned to full time work from 2003. Although the trial judge did not make any adverse credibility findings against the respondent, she found the objective evidence outweighed the respondent's belief as to what she would have done in the hypothetical circumstances. I am satisfied that it was open on the evidence to find that the respondent would not have returned to full time work until 2010. I would dismiss ground 6.
As a result of the success of grounds 1 and 2 of the cross‑appeal, the award for past loss of earning capacity should be increased to $67,644 ($28,800 + $12,168 + $8,424 + $18,252).
Future economic loss - appeal
The trial judge said:
Based on a 50 per cent retained earning capacity, the [respondent's] loss of $260 net per week for 26 years (multiplier 698.6) = $181,636. That figure needs to be reduced by a further 25 per cent to take account of what I expect to be an increase in the [respondent's] earning capacity as her condition improves. That figure should then be discounted for the usual contingencies as the [respondent] suggest[s] of six per cent. Therefore I calculate future loss of earning capacity as $181,636 less 31 per cent = $125,329 [81].
Thus, the award for future economic loss reflected an 81% discount comprising 50% for retained earning capacity, 25% for the prospect of improvement in her condition and 6% for the usual contingencies.
The appellant contended in ground 3 that there should be no allowance for future loss of earning capacity in view of the trial judge's findings at [48] and [58]. For the reasons given in relation to ground 1, the findings provide no support for the appellant's contention. Even if (contrary to my conclusion) the findings are construed in the manner contended for by the appellant, they would not justify a complete denial of an award for future economic loss. I would dismiss ground 3.
Future economic loss - cross‑appeal
Grounds 3, 4, 5, 7 and 8 relate primarily to future loss of earning capacity.
Grounds 3, 4 and 5 overlap. They target the trial judge's finding that the respondent had a 50% retained earning capacity as a photo laboratory technician. In essence, the respondent claims that (1) the trial judge erred in failing to reject Dr Rosenthal's evidence as to the duties of a photo laboratory technician; (2) the evidence of Professor Harper should have been preferred; and (3) the weight of the evidence supported a finding that the respondent had no retained capacity to work as a photo laboratory technician.
After all relevant experts had given evidence, the parties agreed on the actual weights of the paper rolls and chemicals used in the photographic departments at Kmart stores. It was agreed that the paper rolls each weighed 6.95 kg. The rolls came in boxes of two weighing 13.9 kg. The magazine weighed 8.9 kg and, when loaded with paper, weighed 15.2 kg. The loaded magazine had to be placed on top of the printer about waist height. There were two types of chemicals, P1 and P2. Each container of P1 chemicals weighed 3.75 kg and came in a box of two weighing 7.5 kg. Each container of P2 chemicals weighed 3.9 kg and came in a box of four weighing 15.6 kg. Containers of the chemicals were placed in a drawer at the bottom of the machine.
The duties of a photo laboratory technician at Kmart included loading paper into the magazine, putting the loaded magazine into the machine and replacing chemicals. The evidence was to the effect that on an average day paper would be loaded two or three times and chemicals replenished three or four times.
Dr Rosenthal's evidence as to the duties of a photo laboratory technician were based on his experience with suburban franchise operations. He said:
I'm familiar with those work duties because in the past I have been part of rehabilitating people with bad spinal injuries into that particular area. It has been suitable because it can be self-employed franchisee because there's these laboratories in most suburbs and they are fully automated. It was particularly suitable to rehabilitate people who would find it difficult ‑ even though they had successfully completed work trials, there would be a problem placing them in the workforce because nobody would take a workers compensation risk assumption, so these people had a future as a self employed franchisee, and this was one of the areas that we have rehabilitated people into, so to answer your question I'm familiar with what's required. They are basically completely automated procedures. In a standard suburban processing laboratory the machine would be the width of this little desk that I'm sitting at. It would be fractionally higher. It would take a 150 metre paper roll and if it's a machine this size the roll of paper wouldn't be more than 4 kilograms for that particular size of machine. The chemicals for the machine come in five litre bottles for this type of automation. The physical requirements are quite minimal. It's certainly compatible with people with ongoing back and other types of muscular skeletal problems (ts 312).
There are material differences between the duties identified by Dr Rosenthal and the duties associated with the machines on which the respondent worked at Kmart. As is clear from the expert evidence set out in the reasons of Buss JA, the overwhelming weight of the expert evidence was that the respondent could not return to her employment as a photo laboratory technician at Kmart. However, Dr Rosenthal's evidence was not addressed to that issue but to the broader question of her capacity to work in a less demanding photographic environment. Dr Rosenthal's evidence on this subject was in effect uncontradicted and it was open to the trial judge to accept it. However, that opinion was qualified in a material respect. There was no prospect of the respondent being a self‑employed franchisee of such a laboratory. She would have to find employment and Dr Rosenthal acknowledged there would be problems for the respondent in gaining employment as a result of her back injury. This is consistent with Professor Harper's evidence that the respondent's employability was reduced due to the negativity shown by employers to applicants with back injuries (ts 252). This factor must also be factored into the assessment of the extent of any contingency.
Even if the respondent succeeded in setting aside the trial judge's finding that the respondent had retained capacity to work as a photo laboratory technician that would not necessarily result in a material increase in the award of damages. Dr Rosenthal was of the opinion that the respondent had 50% retained capacity for work in a clerical position. Professor Harper was also of the opinion that the respondent had retained capacity to do clerical work albeit less than half time. The respondent had no relevant skills or experience in this area and an allowance would have to be made for retraining.
Grounds 7 and 8 challenge the discount for future economic loss. The respondent claims the discount should have been no greater than 10% or alternatively that the 31% discount for the possibility of improvement in her symptoms and general vicissitudes was outside a sound discretionary range.
I accept that a discount of 81% is manifestly excessive. The discount for retained working capacity of 50% has to be reduced because of the acknowledged difficulties that a person with known back problems has in obtaining employment. Further, although the weight of the expert evidence supported the possibility of improvement in the respondent's symptoms, that has to be considered against the backdrop of the significant period over which the respondent had experienced symptoms and her susceptibility to relapse. I would reduce the discount from 81% to 55% comprising 35% for retained work capacity, 15% for the possibility of improvement in her condition and 5% for general contingencies. The only challenge to the trial judge's calculation of future economic loss
relates to the extent of the discount. The reduction of the discount to 55% results in an award of $188,902 for future loss of earning capacity.
Conclusion
I would dismiss the appeal, uphold grounds 1, 2, 7 and 8 of the cross‑appeal, set aside the awards made by the trial judge for past and future loss of earning capacity and in lieu thereof award the sum of $67,644 and $188,902 respectively. There will need to be consequential adjustments to the respondent's entitlement to interest and loss of future superannuation. The parties should confer and attempt to agree a minute of proposed orders giving effect to these reasons.
PULLIN JA: I have read the reasons of McLure JA and Buss JA. I agree with Buss JA that ground 1 of the appeal should be dismissed for the reasons he gives.
I agree that ground 2 of the appeal should be dismissed for the reasons given by McLure JA. It is true that the learned trial judge used language which, read alone, appears to be inconsistent with other parts of her judgment. The learned trial judge said at [58]:
In the circumstances that she faced as the full time carer for her children I am satisfied that it was that full time care that prevented her from returning to her duties as a photo lab technician.
Her Honour then awarded damages for past loss of earning capacity.
Ground 2 of the appeal reads:
The learned trial judge erred in fact by allowing the respondent $67,246 damages for past loss of earning capacity as follows:
past loss of earning capacity $52,240
past loss of superannuation $4,033
interest on past loss of earning capacity $10,187
interest on past loss of superannuation $786
When:
2.1although she found that the respondent's earning capacity had been diminished as a result of the accident (D16)
2.2she also found that it was the full time care of her children (and not the accident) that prevented the respondent from returning to work as a photo lab technician (D17),
And the learned trial judge should have made no allowance for damages for past loss of earning capacity.
The reference in par 2.1 of the ground to D 16 was a reference to page 16 of the appeal book and is probably a reference to her Honour's finding at [48] which reads:
Given Dr Rosenthal's direct experience with the work of a photo lab assistant I accept his opinion that the plaintiff retains the capacity to undertake these duties at least on a half time basis.
However, at page 18 of the appeal book at [56] her Honour said:
This then is a case where the plaintiff's earning capacity has been diminished as a result of the accident.
The reference in par 2.2 of ground 2 is a reference to what her Honour said at [58] which reads:
In the circumstances that she faced as the full time carer for her children I am satisfied that it was that full time care that prevented her from returning to her duties as a photo lab technician.
However, like McLure JA and for the reasons given by her Honour, I have concluded that a reading of the learned trial judge's reasons as a whole allow the apparent inconsistency to be reconciled. Her Honour should be taken as meaning to say, at [58], that the child care duties prevented her returning to 'full time' duties. In other words, the respondent had until the trial lost her earning capacity due to the accident, but even if she had not suffered that loss, the care of her children would have kept her from working full time. The result was that her loss until trial had to be reduced accordingly. This reading of [58] is consistent with the trial judge's calculation of damages for past loss of earning capacity.
I agree with McLure JA's disposition of ground 3 of the appeal and the grounds of the cross‑appeal for the reasons given by her Honour. I also agree that the parties should confer and attempt to agree a minute of proposed orders giving effect to the decision of this court.
BUSS JA: On 7 January 1999, the respondent was injured in a motor vehicle accident.
In 2003, the respondent commenced proceedings against the appellant in the District Court, claiming damages in respect of her injuries. The appellant admitted liability. Between 4 ‑ 8 April 2005, there
was a trial before Yeats DCJ in relation to damages. Her Honour delivered judgment on 15 July 2005, and awarded the respondent $393,272, calculated as follows:
General damages
$93,800.00
Past loss of earning capacity
$52,240.00
Past loss of superannuation
$4,033.00
Interest on past loss of earning capacity
$10,187.00
Interest on past loss of superannuation
$786.00
Future loss of earning capacity
$125,329.00
Loss of future superannuation
$9,110.00
Past gratuitous services
$38,400.00
Future gratuitous services
$23,730.00
Past special damages
$26,418.00
Future special damages
$9,239.00
Total award
$393,272.00
The appellant has appealed against the learned judge's award of damages for non‑pecuniary loss, past loss of earning capacity (including past loss of superannuation and interest on the damages) and future loss of earning capacity (including future loss of superannuation).
The respondent has cross‑appealed. In general, she attacks various findings of fact and the award of damages in relation to past and future loss of earning capacity.
The respondent's personal circumstances before the accident
The learned judge summarised the respondent's personal circumstances before the accident:
The plaintiff is 39 years of age. She was born in the United Kingdom on 27 September 1965 and emigrated to Australia after finishing school with an achievement certificate at age 16. She undertook two unskilled jobs for one year in Australia working as a kitchen hand at Graylands Hostel and as a teacher's aid at the Wanneroo Community School. Then she earned a certificate for caring for the elderly which involved practical work at St George's Nursing Home, at Balga Special School and at Sir David Brand Centre. After completing that certificate in 1984 she returned to the United Kingdom in 1985 on a one year working holiday when she worked in restaurants. Upon her return to Australia in 1986 the plaintiff worked as a despatch clerk at Aherns but did not enjoy that job because she was not in an environment with people.
In 1986 she joined Kmart where she started on the checkout counter but soon began working in the photo lab where she was trained on the job and obtained certificates of her qualifications as a photo lab technician beginning in 1992. Fourteen certificates (exhibit 1) were Kodak certificates. Two others recognised her five year and then in 1996, her 10 year service to Kmart. During her 10 years' employment the plaintiff gained the highest qualification as a specialist photo lab technician and was qualified as a trainer.
On 31 July 1996 the plaintiff resigned from Kmart (exhibit 10). She explained that she resigned in order to access her long service leave money, some $6,000, but, despite her resignation, she continued working part-time at Kmart in the same job as a photo lab technician. The plaintiff used her long service leave payment to pay for IVF treatment and she fell pregnant in July 1996. On 18 February 1997 the plaintiff signed a part-time contract for 20 hours work per week with Kmart (exhibit 11).
On 27 March 1997 the plaintiff gave birth to her twins, Jack and Libby. Libby was diagnosed with mild cerebral palsy. At the time the babies were born the plaintiff and her husband lived in Rockingham but they soon moved to Kingsley to be near the plaintiff's mother, Sylvia Betts. Mrs Betts was employed in two jobs but her hours were flexible and she was able to help her daughter with the twins. At the time the twins were born the plaintiff's husband's employment was in transition. By 1995 he had worked for Kmart for 20 years. He resigned from Kmart in 1996 and worked for one year as a store manager at Red Dot. In 1997 he bought a seafood franchise and worked at it for 12 months but that business did not produce enough income to support the family. During 1997 the family finances were very minimal and the plaintiff went back to work at Kmart on a part-time basis in December 1997. The plaintiff's husband changed jobs again in 1999. A week prior to the motor vehicle accident he started working for Perth Construction delivering building materials to sites. It was a very full-time job. He worked 12 hour days some times seven days a week.
The plaintiff worked part-time from December 1997 until the accident on 7 January 1999, a period of approximately 56 weeks [2] ‑ [6].
The accident and the respondent's pain and symptoms at that time
The accident on 7 January 1999 involved a collision between a motor vehicle driven by the respondent and a vehicle driven by an unidentified person.
The respondent struck her right forehead on part of her motor vehicle. She was able to alight from the vehicle, however, without assistance. But about 30 minutes after the collision, the respondent experienced severe pain in her lower back (which she described as 'like a burning sensation'), and severe pain in the back of her neck and across her right shoulder. Also, she had a throbbing headache and was very nauseous.
The learned judge's findings in relation to the respondent's pain and symptoms as at the date of trial and the effect of the pain and symptoms on her life
The learned judge described the respondent's pain and symptoms as at the date of trial:
1.She suffers constant lower back pain 'like a toothache' a constant dull ache that radiates to different frequencies. At its worst she suffers spasm which causes numbness radiating from her right buttock to her right leg, numbing her right foot. The plaintiff takes Panadeine to cope with the pain and, when the pain is worse, she takes Tramal but the Tramal makes her feel quite nauseous and she tries to avoid taking it.
2.The plaintiff also suffers intermittent symptoms in her right leg and foot - about three times a week when she loses sensation and suffers numbness in her foot.
3.The plaintiff's neck and right arm pain are not as severe as her lower back pain but that pain is aggravated by a number of simple household chores [11].
The learned judge then described the effect of the respondent's pain and symptoms on her life:
The plaintiff's pain has had a devastating affect on every aspect of her life. When her lower back goes into spasm she is unable to get out of bed, unable to toilet or shower herself or dress herself. Her sexual relationship with her husband is greatly reduced. The pain tires her, makes her grumpy and not able to be the mother she tries to be with her children. Her right foot and leg problems interfere with her doing such a simple thing as going for a walk for fear of falling over or riding a push bike for fear of falling off. Even walking the dog is not possible for fear he will pull her the wrong way and aggravate her back pain. Chopping vegetables, sewing and sitting at the computer doing email all aggravate her shoulder and neck [12].
The witnesses at trial
Numerous medical practitioners and other health professionals gave evidence at the trial. They comprised Dr Minsker (the respondent's general medical practitioner), Professor Mastaglia (a consultant neurologist), Dr Salmon (a specialist in pain medicine), Ms Martin (a physiotherapist), Professor Harper (an occupational physician), Mr Semmens (a clinical psychologist), Mr Anastas (an orthopaedic surgeon) and Dr Rosenthal (a practitioner in rehabilitation medicine). The non‑expert witnesses were the respondent, Mr Mirco (the store manager of Kmart Joondalup), Ms Elbrow (an employee with the Cerebral Palsy Association), Mr Weatherall (the respondent's husband), Ms Betts (the respondent's mother) and Ms Pennefather (a claims officer employed by the appellant).
The learned judge's findings in relation to the medical evidence
The learned judge noted, at [47], that the opinions of Professor Harper and Dr Rosenthal 'directly conflict with each other'. Her Honour added:
Professor Harper's opinion was that the plaintiff would never be able to return to her duties as a photo lab assistant. To the contrary, Dr Rosenthal believed the plaintiff had the capacity to work at least half time as a photo laboratory technician. And he believed her capacity to work in this job would increase as her fitness increased. While Professor Harper's opinion was based on what he 'understood' were the plaintiff's duties, Dr Rosenthal was quite familiar with the duties of a photo lab technician and had rehabilitated people with serious spinal injuries into this employment. He considered the duties of a photo lab technician to be appropriate for this plaintiff's injuries [47].
The learned judge accepted, at [48], Dr Rosenthal's opinion that the respondent retained the capacity to undertake her duties as a photo laboratory assistant 'at least on a half‑time basis'. Her Honour based her acceptance of Dr Rosenthal's opinion on his 'direct experience with the work of a photo lab assistant'. Her Honour rejected Professor Harper's opinion on the ground that he had 'no actual experience of the duties of a photo lab technician'. Her Honour referred to Professor Harper's evidence (at ts 252):
Firstly, it's a job standing and it's a job standing at a machine and it requires prolonged standing. It's a job which requires a certain amount of lifting and bending. The paper rolls have to be lifted and fitted into the machine, chemicals have to be carried, lifted and put into the machine so it is a static job generally but it does require significant lifting in terms of the heavy paper roll and also going to get those paper rolls and carrying them to the work station [48].
Her Honour then said in relation to that evidence:
That description by Professor Harper of the duties of a photo lab technician is not supported by the evidence. The plaintiff's evidence showed that neither prolonged standing nor prolonged sitting was required. It is now established that the paper rolls were not heavy and weighed only 6.95 kilograms and not 16 kilograms. The chemicals weighed much less than the weights suggested to Professor Harper. This is a case where the failure of the plaintiff's solicitors to prove the facts about the duties of a photo lab technician renders Professor Harper's expert opinion inadmissible because it is not based on any proven facts (Ramsay v Watson (1961) 108 CLR 642 at 649) [49].
Also see her Honour's reasons at [51]‑ [53].
Counsel for the respondent submitted to the learned judge that she should not rely on Dr Rosenthal's opinion in that he is not a fellow of any specialist college in Australia. Her Honour accepted that Dr Rosenthal's qualifications were different from those of Professor Harper and that 'at one level' Professor Harper is better qualified than Dr Rosenthal. However, her Honour decided that, in the present case:
Dr Rosenthal has a qualification totally lacking by Professor Harper, ie., direct experience with the operation of a photo lab and the use of a position as a photo lab technology in the rehabilitation of patients with back injuries. In the circumstances of this case Dr Rosenthal is more highly qualified than is Professor Harper [54].
The learned judge said, at [55], that there was support for Dr Rosenthal's opinion in the evidence of Dr Salmon and Mr Anastas. Her Honour added, however, that she did not accept Mr Anastas' opinions about the respondent (in particular, that she merely suffered a simple soft tissue injury with no neurological impingement) and preferred Professor Mastaglia's opinion that the respondent had S1 nerve root compression.
The learned judge found, at [79], in reliance on Professor Mastaglia's evidence, that the respondent's low back injury 'caused a protrusion of the L5/S1 disc with evidence of S1 nerve root compression'.
Although the learned judge accepted Professor Mastaglia's evidence that the respondent suffered from S1 nerve root compression, her Honour did not refer to the Professor's evidence in relation to the respondent's capacity to resume her pre‑accident employment. Similarly, although her Honour noted Dr Salmon's opinion that the respondent's condition would improve gradually, she did not refer to his evidence as to the respondent's capacity to return to work as a photo laboratory technician. Also, her Honour did not mention the evidence of Dr Minsker on this issue.
The learned judge's findings in relation to loss of earning capacity generally
The learned judge said, at [56], that the respondent's earning capacity had been 'diminished' as a result of the accident.
The learned judge mentioned, at [57], that the respondent had not adduced any evidence that, after the accident, she had actively sought any employment outside the home. Her Honour noted, also at [57], the respondent's admission in cross‑examination that, after the accident, she had never attempted to return to work as a photo laboratory technician and had never enquired of Kmart what support (if any) they would give her, in relation to her injuries, if she endeavoured to resume employment.
The learned judge referred, at [58], to the respondent's role as 'the full‑time carer for her children', and then said:
I am satisfied that it was that full‑time care that prevented her from returning to her duties as a photo lab technician [58].
Her Honour added that the respondent 'admitted as much' in a conversation with Ms Pennefather before the District Court proceedings were commenced.
The learned judge referred, at [59], to Mr Mirco's evidence and found that although the respondent declined an offer by Mr Mirco, made in September 2003, of a full‑time position as a photo laboratory technician at Kmart Joondalup, there was no evidence that she had ever applied to return to part‑time work at Kmart.
The learned judge then noted, at [60], Professor Harper's evidence that the respondent's injuries had affected her 'employability'; that is, she would not be able to compete in the open workforce once prospective employers became aware of her injuries and the persistence of her symptoms. Her Honour found, however, that:
[I]t does not seem to me that that factor directly applies in a case where the plaintiff was highly skilled as a photo lab technician, had work experience part-time as a photo lab technician and yet never sought part‑time employment with her former employer [60].
The learned judge set out the following findings:
Taking account of all of this evidence I am satisfied that the plaintiff did lose her pre-accident earning capacity. Her earning capacity was diminished by the accident. She has not shown that she has been unable to find alternative employment. Nor am I satisfied that her condition prevented her from working part time as a photo lab technician. For these reasons the evidential burden has not shifted to the defendant (Thomas v O'Shea [(1989) A Tort Rep 80‑251]; Lucky Import & Export Co[TA v Lucky Import & Export Co Pty Ltd [2002] WASCA 65] case) [61].
The learned judge referred, at [64], to the respondent's 'retained earning capacity'. Her Honour then considered the appellant's contention that the respondent's duties as the primary carer for her twins left her with 'virtually no exercisable earning capacity'. After reviewing some evidence, her Honour made these observations and findings:
The twins commenced school in February 2002 and the plaintiff gave evidence she had always intended to work full time when the twins went to school. Her work would have been interrupted in any event by Jack's illness in 2003. From that time the care regime for the twins – Libby with mild cerebral palsy and Jack with learning disabilities – was extensive and would continue to be extensive at least until the twins were about 13 years old in 2010. Even if she had not been injured I am satisfied the plaintiff's earning capacity was not fully exercisable during the period from the birth of her twins until they reach 13 years of age because of the extensive care regime she had had to undertake [66].
The learned judge made further findings as to the extent to which the respondent would have exercised her earning capacity if she had not been injured in the accident, and as to the extent to which she had suffered a loss of earning capacity (which was productive of financial loss) as a result of her injuries:
I am satisfied based on the evidence of the extensive duties the plaintiff undertook as primary carer for her two children that even if she had not been injured, there was no chance of her working full time before the twins reach the age of 13 in 2010. If the plaintiff had not been injured in the motor vehicle accident I believe there is a 90 per cent chance she would have continued to work part time until the twins commenced school in 2002. But I must bear in mind that during 2003 Jack was severely ill. That is an historical fact that has been established. The plaintiff would not have been able to work at all for the two months she and her husband lived near PMH to be near Jack. And because of Jack's extra needs as he recovered from his illness I believe there was only a 50 per cent chance that the plaintiff would have returned to work at all that year.
From 2004 to 2010 when the twins will be 13 years of age if the plaintiff had not been injured I am satisfied there was a 90 per cent chance she would have worked half time.
These findings mean that even if the plaintiff had not been injured in the motor vehicle accident she was unlikely to have fully exercised her earning capacity because of her maternal duties. But the effect of the motor vehicle accident has been to stop her from working at all. In these circumstances I will assess damages for loss of earning capacity based on the loss of the exercisable earning capacity she retained after the birth of the twins. That is the loss of earning capacity she has suffered that has been productive of financial loss (Graham v Baker [(1961) 106 CLR 340]) [70] ‑ [72].
The learned judge's calculation of past loss of earning capacity
The learned judge calculated the award for past loss of earning capacity as follows:
When the plaintiff worked part-time for Kmart after the birth of her twins she was earning $14.28 gross per hour. As she earned less than $3,000 during financial year 1998 and financial year 1999, gross and net figures are pretty irrelevant as she would have paid no tax. In assessing her loss of earning capacity from the date of the accident 7 January 1999 until the twins commenced school in February 2002, a figure of $15 per hour seems to me a fair assessment. That was a period of three years and four weeks equals 160 weeks. The plaintiff worked very few hours prior to the accident and I doubt if those hours would have substantially increased until the twins commenced school. I am prepared to allow for eight hours work per work during this period. That is more than she was working prior to the motor vehicle accident, but I accept that her hours would have gradually increased. She would therefore have earned an average of $120 per week for the 160 weeks equals $19,200 for that period.
During the first year the twins were at school (2002) I accept there was a 90 per cent chance she would have worked half time (20 per week) earning about $300 per week gross, or say $260 per week net. That would amount to $260 x 52 x .9 = $12,168 compensation for 2002.
During 2003 when Jack was so ill in July I am satisfied she would not have worked at all for two months, and there was only a 50 per cent chance that the plaintiff would have worked half time from September 2003 to December 2003. For the first six months of 2003 I award $260 x 26 x .9 = $6,084, and for the last four months I award $260 x 18 x .5 = $2,340. Total compensation for 2003 is $8,424.
From 2004 to July 2005, a period of 78 weeks, I award $260 x 78 x .9 = $18,252. Total past loss of earning capacity is assessed at $58,044. The plaintiff concedes this should be discounted for contingencies of 10 per cent = $52,240.
The plaintiff should also be compensated for loss of superannuation calculated as 9% of her gross past earnings = $5,762 less 30 per cent (Jongen v CSR Ltd (1992) A Tort Rep 81 – 192) = $4,033.
Interest of six per cent on past loss of earning capacity for 6.5 years = $52,240 x .03 x 6.5 = $10,187. Interest of past loss of superannuation = $4,033 x .03 x 6.5 = $786 [73] ‑ [78].
The learned judge's calculation of future loss of earning capacity
The respondent's case was that she would never recover from her injuries.
The learned judge held, however, at [79], that the respondent's prognosis was not 'entirely negative'. Her Honour noted that Dr Salmon expected a gradual improvement over time, and that Dr Rosenthal expected her capacity to work as a photo laboratory technician would progressively increase as her fitness increased. Her Honour also said that Dr Salmon's treatments had provided the respondent with considerable periods of relief from her pain, and that she had experienced relief by using the relaxation techniques taught by Mr Semmens and by strengthening her muscles in accordance with the exercise programme formulated by Ms Martin.
The learned judge then said:
The care she must provide for Libby until she is full grown in 2010 at age 13, and the special care she must continue to give to Jack satisfy me that even if she had not been injured she would not have worked more than half time during the period July 2005 until July 2010 when the twins would have turned 13 years of age. These factors leave considerable uncertainty in calculating future loss of earning capacity.
Based on a 50 per cent retained earning capacity, the plaintiff's loss of $260 net per week for 26 years (multiplier 698.6) = $181,636. That figure needs to be reduced by a further 25 per cent to take account of what I expect to be an increase in the plaintiff's earning capacity as her condition improves. That figure should then be discounted for the usual contingencies as the plaintiff's suggest [sic] of six per cent. Therefore I calculate future loss of earning capacity as $181,636 less 31 per cent = $125,329. In addition she is entitled to a loss of future superannuation calculated at $300 gross per week x 698.6 less 31 per cent x .09 = $13,015 less the Jongen discount of 30 per cent = $9,110 [80] ‑ [81].
The learned judge's findings and award in relation to general damages
The learned judge made findings in the course of determining the award that should be made for the respondent's non‑pecuniary loss:
The plaintiff has suffered an extremely painful injury. Coming as it did when her twins were not yet two years of age, the effects of her injury have had a severe impact on her ability to be the kind of wife and mother she had set out to be. She is clearly a very devoted and good mother who finds that her ongoing severe back pain has interfered with every aspect of her life during the time she was already under pressure as the primary carer for her twins. Her pain continues even now at trial, although she has had some relief since Dr Salmon began his treatments in 2002, some three years after the accident at around the time a coughing fit had led to extreme pain and a week's total disability.
The pain arising from her injuries interferes with and limits every aspect of her life. Her sex life is limited. Her ability to clean and to do laundry for her family is limited. She has had to depend on others to do the things she would have done herself.
There is no doubt in my mind that she suffered considerable pain looking after her twins. As the primary carer, I have no doubt things had to be done and she did them despite the pain. That would particularly apply to the rigorous regime she has to undertake for Libby's care during all of the years until Libby reaches full growth.
Everyone who gave evidence about the plaintiff on a personal basis described her as a bubbly and effervescence [sic] personality with lots of energy, who managed her twins, her household and some part‑time employment prior to the accident. Much of that has now been taken from her by the motor vehicle accident and the ongoing pain she has suffered. She can no longer even go for a walk, ride a push bike or walk the dog because of her fear of aggravating her back and experiencing excruciating pain [96] ‑ [99].
The learned judge then referred to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). Her Honour concluded, at [103], that 'because of the severe pain suffered by [the respondent] and the effect it has had on all aspects of her life … this case is 35% of a most extreme case', for the purposes of s 3C. Her Honour therefore awarded the respondent $93,800 in general damages for non‑pecuniary loss.
Appellant's appeal: the grounds
The appellant's grounds of appeal read:
1.The learned trial judge erred in law by allowing the respondent $93,800 damages, being 35% of the maximum amount that may be awarded for non pecuniary loss, as this amount was excessive and outside the range of her discretion ...
2.The learned trial judge erred in fact by allowing the respondent $67,246 damages for past loss of earning capacity as follows:
past loss of earning capacity $52,240
past loss of superannuation $4,033
interest on past loss of earning capacity $10,187
interest on past loss of superannuation $786
when:
2.1although she found that the respondent's earning capacity had been diminished as a result of the accident …
2.2she also found that it was the full time care of her children (and not the accident) that prevented the respondent from returning to work as a photo lab technician … ,
and the learned trial judge should have made no allowance for damages for past loss of earning capacity.
3.The learned trial judge erred in fact by allowing the respondent $134,439 for future loss of earning capacity as follows:
future loss of earning capacity $125,329
future loss of superannuation $9,110
when she found that:
3.1the respondent commenced working part time when she commenced having a family … ;
3.2the respondent did not lose her capacity to work part time … ;
3.3it was the full time care of her children (and not the accident) that prevented the respondent from returning to work as a photo lab technician … ;
3.4the respondent's prognosis was not entirely negative … ,
and the learned trial judge should have made no allowance or alternatively a modest global allowance for damages for the risk that in the future the respondent's loss of earning capacity may continue and may be productive of financial loss.
Respondent's cross‑appeal: the grounds
The respondent's grounds of cross‑appeal read, without supporting particulars:
1.The learned trial Judge erred in law in adjusting the Respondent's (Plaintiff's) award of damages for Past Economic Loss for contingencies more than once or at all and in any event adopted a wholly erroneous approach to the issue of contingencies.
…
2.The learned trial Judge erred in fact and law in using 8 hours per week as the starting point for the calculation of the Respondent's past economic loss from 7 January 1999 to February 2002.
…
3.The learned trial Judge erred in fact and in law in accepting the evidence of Dr John Rosenthal in relation to the duties or occupational requirements of a photo‑lab technician as the basis of her Honour's finding that the Respondent was fit or able to return to work at her pre‑accident employment.
…
4.The learned trial Judge erred in concluding (at Reasons [54] and [47]) that Dr Harper was totally lacking in direct experience with the operation of a photo lab as opposed to Dr Rosenthal and that Dr Harper's evidence was inadmissible on the basis of Pollock v Wellington (1996) 15 WAR 1.
…
5.The learned trial Judge erred in holding that an evidentiary burden was not cast upon the Defendant to show what alternative employment opportunities were open to the Respondent, including the state of the labour market and likely earnings.
…
6.The learned trial Judge erred in fact and in law in concluding that the care of the Respondent's children (at Reasons [58], [65], [66], [72] and [80]) prevented her from returning to employment as a photo‑lab technician. Her Honour's finding in this regard was wholly erroneous or against the weight of evidence.
…
7.The learned trial Judge erred in law in finding that [the] Respondent had a retained earning capacity of 50% (at Reasons [81]).
8.The learned trial Judge erred in law in effectively discounting the Respondent's claim for Future Economic loss and future loss of superannuation by 31% for contingencies (at Reasons [81]).
…
9.The learned trial Judge erred in law and fact in finding that the Respondent retained the capacity to work as a photo‑lab technician (at Reasons [47] ‑ [48]).
The critical issues in the appeal and the cross‑appeal
The issues in the appeal and the cross‑appeal were refined, to some extent, in the course of oral submissions before this court. The critical issues are these:
(a)Did the learned judge calculate the respondent's past and future loss of earning capacity on a basis which was irreconcilably inconsistent with findings her Honour made elsewhere in her reasons as to the nature and extent of the earning capacity which the respondent had and would have exercised if she had not been injured in the accident?
(b)If there are irreconcilable inconsistencies in the learned judge's reasons which require the setting aside of findings or calculations made by her Honour, is this court able to make its own findings and calculations on the record or is it necessary to order a re‑trial?
(c)If there are irreconcilable inconsistencies in the learned judge's reasons which require the setting aside of findings or calculations made by her Honour, and this court is able to make its own findings and calculations on the record, what findings and calculations should be made?
(d)In any event, is there any merit in any of the grounds of the appeal or the cross‑appeal?
There is significant overlap between the issues I have identified at pars (a), (b) and (c) above on the one hand and the grounds of the appeal and the cross‑appeal (as developed in oral submissions) on the other. I turn now to the first of the critical issues.
Did the learned judge calculate the respondent's past and future loss of earning capacity on a basis which was irreconcilably inconsistent with findings her Honour made elsewhere in her reasons as to the nature and extent of the earning capacity which the respondent had and would have exercised if she had not been injured in the accident?
The learned judge's findings in relation to the respondent's loss of earning capacity may be summarised, as follows:
(a)The respondent retained the capacity to work as a photo laboratory technician 'at least on a half‑time basis'. See [48]. In his report dated 5 September 2002, Dr Rosenthal expressed the opinion that the respondent had 'a present capacity to work half‑time as a photo laboratory technician'. It is apparent, from her Honour's acceptance, at [48], of Dr Rosenthal's opinion in relation to the respondent's retained earning capacity, that her Honour found, implicitly, at [48], that the respondent's capacity to work as a photo laboratory technician, at least on a half‑time basis, had existed since 5 September 2002.
(b)The respondent's earning capacity was reduced as a result of the accident. See [56].
(c)The respondent's role as the full‑time carer of her children prevented her from returning to 'her duties as a photo laboratory technician'. See [58].
(d)Even if she had not been injured in the accident:
(i)the respondent's earning capacity would not have been fully exercisable during the period from March 1997 (when the twins were born) to 2010 (when the twins would be aged 13) 'because of the extensive care regime she had had to undertake' with them. See [66].
(ii)the respondent did not have any prospect of working full‑time before 2010. See [70].
(iii)there was only a 90% chance that the respondent would have continued to work on a part‑time basis before February 2002 (when the twins commenced school). See [70].
(iv)there was only a 50% chance that the respondent would have returned to work at all during 2003 because of the severe illness suffered by her son, Jack. See [70].
(v)there was only a 90% chance that the respondent would have worked half‑time during the period from 2004 to 2010. See [71].
(e)(i) Even if she had not been injured in the accident, the respondent was unlikely to have fully exercised her earning capacity because of her maternal duties. See [72].
(ii)The effect of the injuries which the respondent suffered in the accident was to preclude her from working at all. See [72].
(iii)In the circumstances, damages for loss of earning capacity should be assessed based on the loss of the exercisable earning capacity which the respondent retained after the birth of the twins. That loss of exercisable earning capacity was productive of financial loss. See [72].
The learned judge's approach to the assessment of past loss of earning capacity was as follows:
(a)During the period from 7 January 1999 (the date of the accident) to February 2002 (when the twins commenced school), the respondent would have worked eight hours per week, if she had not been injured in the accident. See [73].
(b)In 2002, there was a 90% chance that the respondent would have worked half‑time (that is, 20 hours per week), if she had not been injured in the accident. See [74].
(c)During 2003, there was a 90% chance that the respondent would have worked part‑time between January and June (inclusive), in July and August she would not have worked at all (as a result of Jack's illness), and there was a 50% chance that she would have worked half‑time between September and December (inclusive), if she had not been injured in the accident. See [75].
(d)During the period from January 2004 to July 2005 (the date of judgment), there was a 90% chance that the respondent would have worked half‑time, if she had not been injured in the accident. See [76].
Her Honour then discounted (and the respondent conceded that she should discount) the total award for past loss of earning capacity by 10% for contingencies. See [76].
The learned judge's approach to the assessment of future loss of earning capacity was as follows:
(a)During the period from July 2005 (the date of judgment) to July 2010 (when the twins would be aged 13), the respondent would not have worked more than half‑time, even if she had not been injured in the accident. See [80].
(b)Her Honour calculated the respondent's future loss of earning capacity in respect of the 26 year period from July 2005 (the date of judgment) to July 2031 (when the respondent would be aged 65). Her Honour made an initial calculation of the respondent's loss in respect of that period based on her having a 50% retained earning capacity, and having lost 50% of her full earning capacity as a result of her injuries in the accident. Her Honour then reduced the amount of the initial calculation by a total of 31%: 25% to take account of her expectation that the respondent's earning capacity would increase (from a 50% retained earning capacity) as her condition improved and 6% for 'the usual contingencies'.
(c)In the result, her Honour calculated that the respondent's future loss of earning capacity over the 26 year period was an amount representing 50% of the full earning capacity she had before the accident, less 31% of that amount.
In my opinion, there are, with respect, several inconsistencies in the learned judge's reasoning and conclusions, as follows:
(a)Although the learned judge found that:
(i)(based on Dr Rosenthal's evidence) the respondent retained the capacity to work as a photo laboratory technician, at least on a half‑time basis (see [48]); and
(i)the respondent's earning capacity had been reduced as a result of the accident (see [56]),
her Honour also found that the effect of the injuries which the respondent suffered in the accident was to preclude her from working at all (see [72]).
(b)Although the learned judge found (based on Dr Rosenthal's evidence) that the respondent retained the capacity to work as a photo laboratory technician, at least on a half‑time basis, between 5 September 2002 and July 2005 (the date of judgment) (see [48] of her Honour's reasons and [58] and [80(a)] above), but that her role as the full‑time carer of her children prevented her from returning to work (see [58]), her Honour then proceeded to assess and award the respondent damages for past loss of earning capacity on the basis of other findings (at [73] ‑ [76]) that she would have worked part‑time or half‑time as a photo laboratory technician if she had not been injured in the accident.
(c)Although the learned judge found (based on Dr Rosenthal's evidence) that the respondent retained the capacity to work as a photo laboratory technician, at least on a half‑time basis, between 5 September 2002 and July 2005, and that the respondent did not in fact work outside the home and did not give any evidence of actively seeking any such work during, relevantly, that period (see [57]), her Honour nevertheless assessed and awarded the respondent damages for past loss of earning capacity between, relevantly, 5 September 2002 and July 2005 calculated by reference to her loss of the capacity to work on a half‑time basis (see [74] ‑ [76]).
(d)Although the learned judge found (based on Dr Rosenthal's evidence) that the respondent retained the capacity to work as a photo laboratory technician, at least on a half‑time basis, and that during the period from July 2005 to July 2010 (when the twins would be aged 13) the respondent would not have worked more than half‑time, even if she had not been injured in the accident (see [80]), her Honour then proceeded to assess and award the respondent damages for future loss of earning capacity between, relevantly, July 2005 and July 2010 on the basis of the respondent having a 50% retained earning capacity and having lost 50% of her full earning capacity as a result of her injuries in the accident (see [81]), before discounting the initial calculation to take account of her Honour's expectation that the respondent's earning capacity would increase as her condition improved, and for the usual contingencies.
Plainly, a judge is not entitled to award a plaintiff compensation for loss of earning capacity in respect of a period in which the judge has found that the plaintiff had the capacity to work, but did not exercise that capacity. Similarly, a judge is not entitled to award a plaintiff compensation for loss of earning capacity in respect of a period in which the judge has found that the plaintiff would not have exercised the capacity if he or she had not been injured.
I am satisfied that the inconsistencies which I have described are irreconcilable and that, as a result, the learned judge's award of damages for past and future loss of earning capacity, and her Honour's findings of fact in relation to the respondent's physical capacity for work after the accident and the effect of her family commitments on her exercisable earning capacity, should be set aside.
The evidence at trial
Unfortunately, the character of the challenges to the learned judge's findings of fact, reasoning and conclusions makes it necessary to examine, at some length, the evidence at the trial, before turning to the other critical issues I have identified at [79] above.
Respondent's evidence as to her work duties and capacity
The respondent described the training and certificates she received to be a Kmart photo laboratory technician. By 1996, the respondent was the most qualified person in the photo laboratory. (ts 79 ‑ 82)
The respondent described her daily duties as starting the machines in the morning to get the chemicals to the correct temperature, and loading rolls of paper, if necessary. Loading rolls of paper involved lifting a metal magazine, putting in on a bench, and placing it into a black bag. A roll of paper is also put into the black bag, and placed onto a shaft in the magazine. She would then install the magazine into the machine, which was sometimes at waist height and sometimes at head height, depending on the type of machine. The respondent worked on three types of machines, each of which had to be loaded differently. After the chemicals were at the correct temperature, the respondent would carry out checks on the machine, and commence processing customers' films, which involved 'a lot of bending and standing and like repetitive work'. She would process the negatives then go to the printing machine to print the photographs, check their quality after printing, then pack up and file the order. The respondent said her duties also involved replenishing chemicals when they ran out, and taking delivery of stock which had to be put away relatively quickly in the back storeroom, storing the chemicals on a lower shelf and the paper on a higher shelf. The respondent said these duties started first thing in the morning and continued to the end of the day, and that it was a 'repetitive process'. (ts 18 ‑ 20, 85)
The respondent said that, on an average day in the store, she would load about two to three rolls of paper, depending on how busy it was, and replenish the chemicals about three to four times a day. The paper and the chemicals would require replenishment at different times. She estimated the heaviest container of chemicals to be about 10 to 15 kg, explained that the chemicals are in two different containers, and said that the weight depended on which chemical was being mixed. As the chemicals and paper rolls were in the back storeroom, the respondent (and other employees) would use a pallet lifter or a trolley to bring them to the photo laboratory. She said the stores she worked in were quite busy, especially at Christmas time, when the workload of changing the paper rolls and chemicals would increase. (ts 20, 85)
Other aspects of the respondent's job were attending to customers, resolving staff problems and, if it was not busy in the photo laboratory, helping on the shop floor. She would not ask another employee to load rolls of paper or chemicals for her. (ts 20 ‑ 21, 82) Towards the end of 1996, there would usually be two other people, in addition to the respondent, working at the same time in the photo laboratory. The respondent agreed that the task of changing the paper rolls would be shared between her and the other two employees in the photo laboratory, but later qualified that statement by saying that there were not always three people in the photo laboratory at any given time. (ts 86, 121) Despite her qualifications, the respondent said that she did not delegate work, for example, if the paper roll had finished in the machine she was working on, she would replace the paper roll herself. The respondent said that her job did not involve merely sitting in one spot, and agreed that there was a lot of movement, including walking and lifting. (ts 83 ‑ 84)
As to her working hours, the respondent said that she worked full-time at Kmart as a photo laboratory technician until 31 July 1996, when she resigned in order to obtain her long service entitlement money to pay for IVF treatment, and started working part-time at Kmart. The respondent worked about five hours a day, five days a week, amounting to about 25 rostered hours a week, and would work longer if necessary. (ts 23, 60 ‑ 62) She signed a part-time employment contract with Kmart dated 23 September 1996, which stated that her average contracted hours would be 32 hours per week. The respondent signed a further part-time contract on 18 February 1997, which stipulated that her average contracted hours would be 20 hours per week. Counsel for the appellant at trial disputed the validity of the earlier contract, pointing out that there was a red line striking through it. (ts 66 ‑ 67, 111 ‑ 112) She continued working part‑time until 26 February 1997, about a month before the birth of the twins. The respondent returned to work in December 1997, initially one night (four hours) a week, then two days (eight hours) a week, then three days (12 hours) a week. She continued to work three days a week until the accident in January 1999. (ts 24, 60 ‑ 62)
Before the accident, the respondent had intended to work full‑time. She acknowledged that she had family commitments, but said that that was not a problem because her mother and husband could help her. Her mother was living in a granny flat at the rear of their property in Wanneroo. The respondent said that she returned to work after the birth for financial reasons and 'for my own sanity'. She had not resumed work since the accident and felt very frustrated, angry and depressed that she could not work full‑time. In 2003, the respondent had a conversation with Mr Mirco, the store manager of Kmart Joondalup with whom she had worked in Rockingham, in which he offered her a full-time position, but the respondent said she was 'so sad' that she could not take it because of her injuries. The respondent said her children started school in 2002, which, but for the accident, would have enabled her to work full‑time, and also to work flexible hours, if necessary, because her mother was willing to give up one of her part‑time jobs to help the respondent. In 2003, the respondent lived in Ridgewood and her mother lived in a house behind the respondent's house. (ts 24 ‑ 26)
The respondent did not recall any doctors asking her in detail about her duties in the photo laboratory, except for Dr Anastas, who asked her once. She did not recall telling any of the doctors about the weights of the paper rolls or chemicals. (ts 86, 121)
The respondent said that she would have returned to work if it was not for her injuries. She said the bending and stretching would result in 'really bad pain' for her. (ts 122)
As to Dr Salmon's report of 21 July 2003, which recorded the respondent's prognosis as relatively good and a likelihood of a gradual reduction in her symptoms and increasing activity capacity over time, the respondent said Dr Salmon told her that he did not have a crystal ball and could not tell her what her long term future would be. The respondent would not say she was not improving, but asserted that her pain was constant, like a dull ache that would not go away, and that certain activities she did made the pain increase in severity. (ts 94, 125)
Respondent's evidence as to the care of her children
As to the twin with cerebral palsy (Libby), the respondent would carry out physiotherapy on her for 5 to 10 minutes a day, occupational therapy on her for half an hour to an hour a day, and make frequent visits to the hospital. Libby had botox injections every six months in her calf and thigh, and the respondent fitted a splint on Libby's left foot every morning. (ts 39 ‑ 41, 73 ‑ 75) The respondent would take Libby to the physiotherapist (or sometimes the physiotherapist would come to the house) and the occupational therapist about once a week in the early stages. After Libby was 5 years old, they would go to the physiotherapist about once every two to three weeks, and see the occupational therapist about once a month. The respondent would take the other twin, Jack (before he suffered from meningitis in July 2003), who had been diagnosed as hyperactive, to a medical practitioner about once every two to three months and, for a period of time, to a social worker about once a week. When Jack was about 4 or 5 years old, he stopped seeing the social worker. In July 2003, Jack contracted viral meningitis, was in a coma for a week, and, as a result, suffered from a learning deficit. The respondent took him to a speech therapist about once a week. (ts 76 ‑ 79) She also went to Jack's school one day a week, for a couple of weeks, for about half an hour to an hour, to help him. (ts 94) At the time of the trial, Libby was seeing a paediatrician about every six months and an orthopaedic surgeon about once a year. (ts 120)
After the accident, which occurred when the twins were almost two years old, the respondent was unable to carry out Libby's physiotherapy, occupational therapy and general care, to the same extent. The respondent was also often unable to care for Jack, as she 'couldn't even care for myself sometimes'. She obtained help in July 2003 from the Cerebral Palsy Association, which involved a carer attending her home once a week for a couple of hours to help with general duties relating to Libby, perform household chores and sometimes cook a meal. (ts 41, 119 ‑ 120) The respondent denied that she had some physiotherapy sessions at home because of her child care responsibilities. She agreed that she was the primary carer of the children, but said her mother and husband shared that duty. She disagreed that caring for the twins since her accident was a 'far heavier job' or at least equivalent to working as a photo laboratory technician, because she had assistance from her mother and husband. (ts 88 ‑ 90) She further denied that her family commitments made it difficult for her to obtain or invest time in the necessary medical treatment. (ts 92) The respondent disagreed that she generally had trouble keeping up with her exercises and self‑help regime because of the demands of her family commitments. (ts 95) She strongly refuted the proposition that, despite the injury, because of her commitments with the children, she would not, in any event, have been able to work full‑time or even part‑time. She asserted that she would have been able to return to work with the assistance of her family. (ts 98)
The respondent agreed that she could attend a particular gymnasium because of the childcare facilities for her children, but later qualified that statement by saying that the fact that the gymnasium had such facilities was 'a plus', but was not the reason she went there. The respondent had other means for looking after the children, for example, through her friends. She went to that gymnasium because it was quieter than others. (ts 122)
Respondent's evidence as to the effect of the accident on her daily life
After the accident, the respondent experienced constant lower back pain and, to a lesser extent, neck pain. She took pain killers regularly. The respondent said that when her back pain was severe, she was unable to get out of bed on her own, unable to use the toilet or shower herself properly, needed assistance putting on her clothes, and home chores did not get done. The pain affected her mood with her husband and children, her sexual activity, her sporting activities, and her social activities with friends and at her children's school. She no longer rode her bicycle or took the dog for walks. Chopping vegetables, sewing or writing emails would aggravate her shoulder and neck. She could not sit at the computer for longer than an hour. (ts 28 ‑ 31)
The respondent had trouble sleeping through the night due to her back pain. As to household chores, she did some vacuuming (her husband or mother did the other chores about once a week), she would hang the washing on the line (her husband or mother would sometimes have to take it down), her husband cleaned the shower and the toilet, and her mother changed the bed sheets. Before the accident she helped her husband in the garden, but was no longer able to do so. The respondent cooked, although her husband sometimes had to do this work. The respondent did all these chores before the accident.
As a result of her back pain, the respondent was slightly restricted as to the type of clothing and shoes she could wear, and also had to adapt to certain methods of washing and showering herself. The respondent still did the food shopping about twice a week, but her children helped her by pushing the trolley and retrieving items. Her mother, husband or a friend would accompany her on large shopping trips, every two or three weeks. The respondent said that her friends also often helped her with domestic duties. (ts 43 ‑ 50)
Evidence of Frank Luciano Mirco
At the time of the trial, Mr Mirco was the store manager of Kmart Joondalup. The respondent had worked for Mr Mirco at Kmart Rockingham in about 1996 or 1997. (ts 185)
Mr Mirco wrote a letter to the respondent's solicitors on 31 December 2003, in response to a letter from them requesting information on the respondent and her future employment prospects at Kmart Joondalup. In the letter, Mr Mirco noted, relevantly, his offer to the respondent of full‑time work in a photo laboratory at the Joondalup store in September 2003, and said that based on the respondent's previous experience in the role, and providing there was not a more suitable applicant, the respondent would probably have been successful in her application. (ts 186)
Mr Mirco said that at the time of the trial, at his store, there was only one operator of the photo laboratory machine, and one customer service employee. Processing the film involved the operator feeding the negatives into the machine, loading the machine with paper, and checking and changing the chemicals in the machine. The customer service employee would serve customers. As to loading the paper and chemicals, Mr Mirco said that they would possibly use two rolls of paper in a day, and sometimes four rolls if it was, for example, after a long weekend. Mr Mirco estimated the distance between the room where the paper and chemicals were stored, and the photo laboratory, to be about 100 m. He said that a roll of paper weighs 6.64 kg and came in boxes of three rolls about three years ago, but now came in single rolls. He described the P1 chemical container as weighing 10 kg and the P2 chemical container as weighing 13 kg (but he could not remember if the chemicals came in boxes of multiples (ts 194)). Mr Mirco said the chemical containers were replenished once a day, every day, in the morning. The paper and chemicals were stored on a high shelf and one needed to use a 'safety stepper' and reach up to retrieve and put them on a trolley to bring to the photo laboratory. (ts 186 ‑ 189)
Section 3C(4) provides that if the amount of non-pecuniary loss is assessed to be 'Amount B or less', no damages are to be awarded for non‑pecuniary loss.
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. At the relevant time, 'Amount A' was $268,000 and 'Amount B' was $13,500.
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'.
If the resulting amount on the scale so conceived is $15,000 or less, no damages are to be awarded by reason of s 79(4). … 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 were cited with approval by the Full Court of the Supreme Court of Western Australia in Thomas v Bass [2006] WASCA 59 [30] ‑ [31].
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. Also see Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 [53]. 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. 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 at [96].
In the present case, the learned judge recorded:
I am satisfied that because of the severe pain suffered by this plaintiff and the effect it has had on all aspect of her life that this case is 35 per cent of a most extreme case, and therefore I award $93,800 for general damages for non‑pecuniary loss [103].
In my opinion, the learned judge's award of $93,800 was within the range of a sound exercise of the discretion conferred by s 3C of the Motor Vehicle (Third Party Insurance) Act. The respondent gave extensive evidence concerning her injuries and symptoms, and their impact on her life. Her Honour found, at [12], that the respondent's pain had had a 'devastating' effect on 'every aspect' of her life. Her Honour also made the findings of fact, at [96] ‑ [99], which I have reproduced at [75] above. In my opinion, the appellant has not established that her Honour made an error of law, as alleged.
Ground 1 fails.
The merits of the appellant's ground 2
The appellant contends that the learned judge erred in fact by allowing the respondent $67,246 damages for past loss of earning capacity (including past loss of superannuation and interest on damages) when:
(a)although she found that the respondent's earning capacity had been diminished as a result of the accident;
(b)she also found that it was the full‑time care of her children (and not the accident) that prevented the respondent from returning to work as a photo laboratory technician,
and her Honour should have made no allowance for damages for past loss of earning capacity.
I have dealt with various issues raised in the appeal (and the cross‑appeal), in relation to past loss of earning capacity, at [80] ‑ [81] and [83] ‑ [84] above. I have concluded, at [85] above, that her Honour's award for past loss of earning capacity should be set aside. I have also concluded (see [249] ‑ [250] above) that her Honour's award should be replaced by an award of damages in the amount of $60,087 for past loss of earning capacity (including past loss of superannuation and interest on the damages). Ground 2 succeeds to the extent that her Honour's award should be replaced with a reduced award of damages, as I have mentioned.
The merits of the appellant's ground 3
The appellant contends that the learned judge erred in fact by allowing the respondent $134,439 for future loss of earning capacity (including future loss of superannuation) when she found that:
(a)the respondent commenced working part‑time when she commenced having a family;
(b)the respondent did not lose her capacity to work part‑time;
(c)it was the full‑time care of her children (and not the accident) that prevented the respondent from returning to work as a photo laboratory technician; and
(d)the respondent's prognosis was not entirely negative,
when her Honour should have made no allowance or, alternatively, a modest global allowance for damages for the risk that in the future the respondent's loss of earning capacity may continue and be productive of financial loss.
I have dealt with various issues raised in the appeal (and the cross‑appeal), in relation to future loss of earning capacity, at [80] and [82] ‑ [84] above. I have concluded, at [85] above, that her Honour's award for future loss of earning capacity should be set aside. I have also concluded (see [251] ‑ [253] above) that her Honour's award should be replaced by an award of damages in the amount of $170,393 for future loss of earning capacity (including future loss of superannuation). Ground 3 fails, in essence, for the reasons I have given at [242] ‑ [245], [247] ‑ [248] and [252] ‑ [253] above.
The merits of the cross‑appeal
Most of the contentions in the respondent's grounds of cross‑appeal have been subsumed within my discussion of the learned judge's reasons, at [80] ‑ [84] above, and in my findings and conclusions, at [85] and [242] ‑ [254] above, that her Honour's awards in relation to past and future loss of earning capacity should be set aside and replaced with awards on the basis I have mentioned and in the amounts I have calculated. There are, however, some other contentions which the respondent has raised and which I have not accepted. I set out below and deal with the grounds of the cross‑appeal.
The merits of the respondent's ground 1
The respondent contends that the learned judge erred in law in adjusting the respondent's award of damages for past loss of earning capacity for contingencies more than once or at all and, in any event, adopted a wholly erroneous approach to the issue of contingencies.
This ground falls away in consequence of my decision to set aside the learned judge's award in relation to past loss of earning capacity and to replace that award on the basis I have mentioned and in the amount I have calculated.
I have not adopted the learned judge's approach to the issue of contingencies.
The merits of the respondent's ground 2
The respondent contends that the learned judge erred in fact and law in using 8 hours per week as the starting point for the calculation of the respondent's past loss of earning capacity between 7 January 1999 and February 2002.
This ground falls away in consequence of my decision to set aside the learned judge's award for past loss of earning capacity and to replace it with an award on the basis I have mentioned and in the amounts I have calculated.
I have used 12 hours, rather than 8 hours, per week, as the starting point for the calculation of the respondent's past loss of earning capacity.
The merits of the respondent's ground 3
The respondent contends that the learned judge erred in fact and in law in accepting Dr Rosenthal's evidence in relation to the duties or occupational requirements of a photo laboratory technician as the basis of her Honour's findings that the respondent was fit or able to return to work at her pre‑accident employment.
This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.
My findings of fact in relation to the respondent's physical capacity and prognosis are set out at [244] ‑ [245] above.
The merits of the respondent's ground 4
The respondent contends that the learned judge erred in concluding, at [47] and [54], that Dr Harper was totally lacking in direct experience with the operation of a photo laboratory as opposed to Dr Rosenthal, and that Dr Harper's evidence was inadmissible on the basis of Pollock v Wellington (1996) 15 WAR 1.
This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.
In examining and determining the respondent's physical capacity to undertake the work of a photo laboratory technician, I have not excluded Dr Harper's evidence from consideration on the basis that his evidence was inadmissible.
The merits of the respondent's ground 5
The respondent contends that the learned judge erred in holding that an evidentiary burden was not cast upon the appellant to show what alternative employment opportunities were open to the respondent, including the state of the labour market and likely earnings.
This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.
I have not made findings of fact based wholly or in part on the failure of the appellant or the respondent to discharge a legal or evidentiary burden.
The merits of the respondent's ground 6
The respondent contends that the learned judge erred in fact and in law in concluding that the care of the respondent's children prevented her from returning to employment as a photo laboratory technician.
This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.
My findings of fact in relation to the extent to which the respondent's family commitments precluded or would preclude the respondent from working as a photo laboratory technician are set out at [247] ‑ [248] above and are based on a consideration of the evidence from the respondent, her husband, her mother and Ms Pennefather.
The merits of the respondent's ground 7
The respondent contends that the learned judge erred in law in finding that the respondent had a retained earning capacity of 50%.
This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.
I have found that the respondent will have the physical capacity to work, on average, 18 hours per week as a photo laboratory technician between July 2010 and July 2031.
The merits of the respondent's ground 8
The respondent contends that the learned judge erred in law in effectively discounting the respondent's claim for future loss of earning capacity (including future loss of superannuation) by 31% for contingencies.
This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.
I have discounted the respondent's claim for future loss of earning capacity (including future loss of superannuation) by 6% (not 31%) for contingencies.
The merits of the respondent's ground 9
The respondent contends that the learned judge erred in law and fact in finding that the respondent retained the capacity to work as a photo laboratory technician.
I have dealt with this contention in the course of making findings of fact in relation to the respondent's past and future loss of earning capacity.
The result of the appeal and cross‑appeal
I would allow the appeal to the extent of setting aside the learned judge's award of damages for past loss of earning capacity (including past loss of superannuation, interest on past loss of earning capacity and interest on past loss of superannuation) and, instead, award damages in the amounts set out at [254] above. Otherwise, I would dismiss the appeal.
I would allow the cross‑appeal to the extent of setting aside the learned judge's award of damages for future loss of earning capacity (including future loss of superannuation) and, instead, award damages in the amounts set out at [254] above. Otherwise, I would dismiss the cross‑appeal.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- WEATHERALL [2007] WASCA 264 (S)
CORAM: McLURE JA
PULLIN JA
BUSS JA
HEARD: 14 JUNE 2007
DELIVERED : 4 DECEMBER 2007
SUPPLEMENTARY
DECISION :20 DECEMBER 2007
FILE NO/S: CACV 93 of 2005
BETWEEN: INSURANCE COMMISSION OF WESTERN AUSTRALIA
Appellant
AND
ALISON HARMIONI WEATHERALL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
Citation :WEATHERALL -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2005] WADC 135
File No :CIV 1974 of 2003
Catchwords:
Costs - Whether O 24A offer made in District Court proceedings applies to costs of appeal - Whether appeal judgment operates retrospectively
Legislation:
Rules of the Supreme Court 1971 (WA), O 24A r 10
Result:
Orders made
Category: B
Representation:
Counsel:
Appellant: Ms B A Mangan
Respondent: Mr B L Nugawela
Solicitors:
Appellant: Lavan Legal
Respondent: S C Nigam & Co
Case(s) referred to in judgment(s):
Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 (S)
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 (S)
Oshlack v Richmond River Council (1998) 193 CLR 72
JUDGMENT OF THE COURT: On 4 December 2007 this court dismissed the appeal and allowed the cross‑appeal against an assessment of damages for personal injuries (Insurance Commission of Western Australia v Weatherall [2007] WASCA 264). The court varied the judgment below to increase the total sum awarded to the respondent from $393,272 to $515,142. These reasons relate to the costs of the appeal and cross‑appeal.
The respondent seeks an order for costs on an indemnity basis, relying on two offers of compromise made to the appellant. The first was made on 22 September 2004 which was prior to the District Court trial and the second was made on 4 October 2005 being after trial and before the hearing of the appeal. The judgment obtained by the respondent on appeal is more favourable than both offers of compromise which were rejected by the appellant.
Order 24 r 10(4) of the Rules of the Supreme Court 1971 (WA) (the Rules) currently provides:
Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, in addition to his costs incurred before that date, all such costs to be taxed on a party and party basis.
Rule 10(4) was amended with effect from 1 March 2007. Prior to that date the former rule materially provided:
… the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, taxed on an indemnity basis in addition to his costs incurred before that date, taxed on a party and party basis.
Order 24A r 10(4a) provides that r 10(4) as it was before 1 March 2007 does not apply to an offer made by a plaintiff before 1 March 2007 unless the plaintiff obtains judgment on the claim to which the offer relates before 1 March 2007.
Judgment at first instance was entered on 15 July 2005. The respondent contends former r 10(4) applies on the basis that:
(1)the claim to which the appeal judgment relates is the same claim to which the trial judgment relates, the judgment on appeal merely varying the judgment at first instance in which event the second offer was to compromise a claim for which judgment had been given before 1 March 2007;
(2)alternatively, the effect of the first offer made pending the trial carries forward to the appeal, given that the claim to which the offer relates is the same in each case.
We would reject both contentions. Order 42 r 2(1) of the Rules provides that a judgment of the court takes effect from the day of its date. The court has a discretion to date its judgment as of an earlier or later day if it determines the judgment should have retrospective or prospective effect (O 42 r 2(2)). Order 42 r 2 applies to the Court of Appeal by virtue of r 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Appeal Rules). The court in Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 (S), when considering O 42, said:
The judgment of an appellate court by which the judgment below is varied takes effect from the date on which the judgment is pronounced, unless the Court exercises its discretion under rule 42(2). The judgment on an appeal is not for all purposes the judgment of the Court below and takes effect on its own pronouncement unless the Court exercises its discretion to ante date it [23].
The court's orders made on 4 December 2007 take effect from that date. There was no application to back date the orders or any justification for that course.
The respondent's submission that the 'claim' referred to in r 10(4) and r 10(4a) is the same claim at trial and on appeal is inconsistent with r 49 of the Appeal Rules. Rule 49(1) provides that O 24A applies to appeals as if a reference to 'plaintiff' were a reference to 'appellant' and a reference to 'defendant' were a reference to 'respondent'. Rule 49(3) provides that where a respondent institutes a cross‑appeal 'plaintiff' refers to that respondent. Thus, r 49 expressly provides that the appellant (or the respondent on a cross‑appeal) is the party with the 'claim' for the purposes of O 24A r 10(4) regardless of whether they were the plaintiff or defendant at trial. Thus, the claim in the appeal is separate and distinct from the claim at trial. The claim in the appeal is the contention of error on the part of the trial judge. Moreover this court has previously held that r 10(4) of the Rules only applies to the costs of the proceedings in which the O 24A offer is made: Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 (S) [6].
Accordingly, O 24A r 10(4) in its current form applies in which event the respondent is entitled to party/party costs unless the court otherwise provides. In the absence of an express rule to the contrary, indemnity costs are ordinarily ordered where there has been some unreasonable or delinquent conduct on the part of the party against whom the order is made: Oshlack v Richmond River Council (1998) 193 CLR 72, 89. There has been no such conduct on the part of the appellant in this case and no justification for awarding indemnity costs. Accordingly, we order that the appellant pay the respondent's costs of the appeal and cross‑appeal to be taxed.
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