Lawson v Flavel
[2001] WASCA 272
•31 AUGUST 2001
LAWSON -v- FLAVEL [2001] WASCA 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 272 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:1/2001 | 21 AUGUST 2001 | |
| Coram: | WALLWORK J MILLER J BURCHETT AUJ | 31/08/01 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Cross-appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID TREVOR LAWSON JOSEPHINE FLAVEL |
Catchwords: | Damages Personal injuries Plaintiff with pre-existing condition Challenge to allowances for loss of earning capacity and cost of care Appropriate deduction for contingencies Turns on own facts |
Legislation: | Nil |
Case References: | Black v Motor Vehicle Insurance Trust [1986] WAR 32 Bowen v Tutte (1990) A Torts Rep 81-043 Bresatz v Przibilla (1962) 108 CLR 541 Foyster v Goynich [1984] WAR 80 Gamser v The Nominal Defendant (1977) 136 CLR 145 Kember v Thackrah [2000] WASCA 198 Lloyd v Faraone [1989] WAR 154 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Newman v Nugent (1992) 12 WAR 119 Rosenberg v Percival (2001) 75 ALJR 734 State Government Insurance Commission v Hitchcock, unreported; SCt of WA; Library No 970089; 11 March 1997 Abalos v Australian Postal Commission (1991) 171 CLR 167 Agbaba v Witter (1977) 51 ALJR 503 Bennett v Minister for Community Welfare (1992) 176 CLR 408 Black v Motor Vehicle Insurance Trust [1986] WAR 32 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 Chambers v Jobling (1986) 7 NSWLR 1 Chappel v Hart (1998) 195 CLR 232 Devries v Australian National Railways Commission (1993) 177 CLR 472 Galea v Galea (1990) 19 NSWLR 263 Griffiths v Kerkemeyer (1977) 139 CLR 161 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Naxakis v Western General Hospital (1999) 197 CLR 269 Purkess v Crittenden (1965) 114 CLR 164 Rosenberg v Percival (2001) 75 ALJR 734 SS Hontestroom v SS Sagaporack [1927] AC 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Van Gervan v Fenton (1992) 175 CLR 327 Wallaby Grip (BAE) Pty Ltd (In Liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 Watts v Rake (1960) 108 CLR 158 Western Australia v Watson [1990] WAR 248 Wilson v Peisley (1975) 50 ALJR 207 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : LAWSON -v- FLAVEL [2001] WASCA 272 CORAM : WALLWORK J
- MILLER J
BURCHETT AUJ
- Appellant (Defendant)
AND
JOSEPHINE FLAVEL
Respondent (Plaintiff)
Catchwords:
Damages - Personal injuries - Plaintiff with pre-existing condition - Challenge to allowances for loss of earning capacity and cost of care - Appropriate deduction for contingencies - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Cross-appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr G P Bourhill
Respondent (Plaintiff) : Mr N J Mullany
Solicitors:
Appellant (Defendant) : Phillips Fox
Respondent (Plaintiff) : Bradford & Co
Case(s) referred to in judgment(s):
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Torts Rep 81-043
Bresatz v Przibilla (1962) 108 CLR 541
Foyster v Goynich [1984] WAR 80
Gamser v The Nominal Defendant (1977) 136 CLR 145
Kember v Thackrah [2000] WASCA 198
Lloyd v Faraone [1989] WAR 154
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Newman v Nugent (1992) 12 WAR 119
Rosenberg v Percival (2001) 75 ALJR 734
State Government Insurance Commission v Hitchcock, unreported; SCt of WA; Library No 970089; 11 March 1997
Case(s) also cited:
Abalos v Australian Postal Commission (1991) 171 CLR 167
Agbaba v Witter (1977) 51 ALJR 503
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
Chambers v Jobling (1986) 7 NSWLR 1
(Page 3)
Chappel v Hart (1998) 195 CLR 232
Devries v Australian National Railways Commission (1993) 177 CLR 472
Galea v Galea (1990) 19 NSWLR 263
Griffiths v Kerkemeyer (1977) 139 CLR 161
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Naxakis v Western General Hospital (1999) 197 CLR 269
Purkess v Crittenden (1965) 114 CLR 164
Rosenberg v Percival (2001) 75 ALJR 734
SS Hontestroom v SS Sagaporack [1927] AC 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Van Gervan v Fenton (1992) 175 CLR 327
Wallaby Grip (BAE) Pty Ltd (In Liq) v Macleay Area Health Service (1998) 17 NSWCCR 355
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248
Wilson v Peisley (1975) 50 ALJR 207
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1 WALLWORK J: I agree with the reasons for judgment of Miller J and with the conclusions which have been reached by his Honour. There is nothing I wish to add.
2 MILLER J: The respondent suffered personal injury in a motor vehicle accident on 21 September 1990 whilst travelling as a passenger in a car which was struck from behind. Liability for negligence was admitted by the appellant and on 15 December 2000, in the District Court at Perth, the respondent was awarded the sum of $261,100 by way of damages for the personal injury and its consequences. The award was divided into a number of heads of damage and made up as follows:
Past loss of earnings $ 34,611
Interest on past loss of earnings $ 1,257
Past loss of superannuation $ 1,751
Interest on past loss of superannuation $ 64
Future loss of earning capacity $ 91,713
Future loss of superannuation $ 5,359
Past care $ 49,795
Interest on past care $ 20,378
Future care $ 24,086
Special damages $ 1,586
Future treatment costs $ 500
General damages $ 30,000
Total $261,100
3 The appellant seeks to set aside the award and substitute for it such lesser amount as the Court thinks fit, contending that the awards of damages for past and future loss of earning capacity and for past and future care were erroneous, without foundation and/or excessive. The respondent cross-appeals, contending that the awards for future loss of earning capacity, past and future care were so inordinately low as to amount to an erroneous assessment of damage in each instance.
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4 The assessment of damages by the learned trial Judge called for a careful distillation of medical evidence and the exercise of a broad general discretion in determining the extent to which awards of damage under the various heads should be discounted to take account of the appellant's pre-existing condition which ante-dated the accident of 21 September 1990. This was because the respondent, who was 39 years of age at the date of the accident, but 49 years of age at the date of trial, was born with a condition of osteogenesis imperfecta. This is a condition of abnormal fragility of the bones which causes recurring fractures on minimal trauma. It had caused the respondent to suffer many fractures throughout her life. Indeed, the respondent, in a proof of evidence which was tendered at the hearing, stated that she had suffered over 300 fractures of bones in her body by the time of trial. Professor Alex Cohen, clinical professor of medicine at the University of Western Australia, and a consultant physician and endocrinologist, in a report tendered in evidence at the trial, explained the condition of osteogenesis imperfecta as follows:
"Osteogenesis imperfecta (syn, Fragilitas Ossium) is an inherited disorder that causes a generalised decrease in bone mass (osteopenia) and makes the bones brittle. The condition is frequently associated with blue sclerae of the eyes, dental abnormalities, progressive hearing loss in over 90% of cases and a positive family history. The most severe forms cause death in utero, at birth or shortly afterward. The disease otherwise shows varying degrees of severity but tending to worsen with time and more severely in women than men, particularly after the menopause. The involvement of the bones by deformity and weakness can lead to compressive disorders as part of the natural history of the disease and such deformity, when present in multiple rib fractures may impose excessive stress upon the pulmonary and cardiac circulations. There may also be excessive laxity of the joints and affliction of deeper tissues such as the large blood vessels.
The symptoms are relevant to the repeated and readily produced fractures and the deformities therefrom. Such fractures may be tardy in their healing. Other symptoms depend on the bone structures involved in the deforming process so that nerve compressions are quite common.
The physical signs are those of the deformities themselves and the tell-tale physical appearance of the eyes, teeth and often the shape of the face which is typically 'heart-shaped'.
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- The condition is genetic and due to molecular abnormalities in the production of the tissue 'cementing' substance collagen.
The course and progress of the disease ranges from death in utero through progressive crippledom from fractures. However there are many mild cases in whom the tendency is barely perceptible.
By and large, those with extensive involvement of long bones will suffer from repeated fractures throughout life with a shortening of normal expectancy. There are however no special additional risks such as cancer."
5 It appears that in the respondent's case the diagnosis of osteogenesis imperfecta was not immediately recognised at her birth, but made shortly thereafter. Professor Cohen described the appellant's progress through life in the following terms:
"In infancy her grossly deformed and foreshortened lower limbs did not permit other than perambulation in a pram but from the age of 2 she developed the facility and agility of crawling which permitted an engagement in many of life's normal tasks and pleasures. At the age of 9 rods were inserted in both legs without much benefit but she walked with calipers for a time deferring the use of a wheel chair until the early days of high school where she remained until the age of 18.
It was with this gross degree of limb deformity and incapacity that she confronted and dealt with her life passing through an early marriage which lasted only a brief time and a subsequent one which resulted in two children. Her husband, some nine years her senior, was an insurance representative and she assisted him in his work until his untimely suicide in Adelaide in 1987 the act of which was discovered by herself. Not long after this she departed Adelaide for Perth and within a relatively short time met with and married her present husband.
Throughout this whole period Ms Flavel maintains that her overall health and strength were generally unimpaired and her outlook positive and ambitious. In particular, she denies head or neck aching of any significant degree. There had been, over the years, some three hundred fractures to the structurally weakened bones but these had been strengthened as best as possible by the supervision and treatment of Dr B C Nordin, an
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- internationally recognised specialist who had retired to Adelaide and with whom she formed a bond of friendship.
Although her overall health was reasonable prior to the accident - setting aside the formidable strains imposed by the limb deformities and her mode of locomotion - she was also prone to allergic asthma. This was severe enough to cause her to retire from work in 1985 since when she has required inhaled bronchodilator therapy in the form of Ventolin and Intal and Beclofort but no oral or parental steroids. Deafness became apparent following her pregnancies but this was to be expected since it is an established accompaniment of the disease Osteogenesis imperfecta along with defective dentition in varying degrees of severity."
6 The learned trial Judge detailed in his judgment the respondent's progress through school, employment, marriage and parenthood. Despite her congenital disability the respondent married three times, had two children and was engaged in a number of occupations prior to 21 September 1990. After the motor vehicle accident on that day she was able to seek and engage in employment for a period of five years between 1994 and 1999, but thereafter she did not work.
7 The learned trial Judge described the respondent's pre-accident condition as one of significant disability. Her main disabilities were a consequence of the osteogenesis imperfecta, but there were disabilities occasioned by two motor vehicle accidents in which she was involved in 1967 and 1976. Injuries sustained in the motor vehicle accident of 1967 resulted in her being substantially confined to a wheelchair with her left arm disabled to a fixed position. Injuries sustained in the motor vehicle accident in 1976 occasioned her serious neck and back pain which settled after a period of three or four years to sporadic back pain. A permanent consequence of the latter accident, however, was that the respondent suffered restriction of rotation of her neck. There were additional complications which were unrelated to the condition of osteogenesis imperfecta. They included a condition of asthma, hayfever and an isolated incident of depression.
8 Despite all of these complications, the learned trial Judge found the respondent to have led an active life and to have experienced a full and complete marriage to her most recent husband. Although counsel for the appellant placed emphasis upon the fact that the respondent had between 1989 and 1990 been forced to visit her general practitioner on an average
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- of once a month, the learned trial Judge concluded, nevertheless, that the records of medical treatment were quite consistent with the evidence of the respondent that she led an active life before the accident of 21 September 1990. This finding was criticised by counsel for the appellant, but I can find no inconsistency in the conclusion which the learned trial Judge reached.
9 The learned trial Judge dealt at length with the respondent's credibility. A number of issues had been raised at trial by counsel for the appellant which were said to tell against the respondent's credibility. Each of these was dealt with in turn by the learned trial Judge. His Honour discounted them as telling against the appellant's credibility. He found her to have been an honest witness and concluded that her evidence as to her life before and after the accident, the subject of the action, was substantially accurate.
10 Although counsel for the appellant sought to challenge the learned trial Judge's conclusions on the credibility of the respondent, pointing to inconsistencies in the respondent's testimony, no basis was shown for upsetting the learned trial Judge's findings in this regard. In Rosenberg v Percival (2001) 75 ALJR 734, McHugh J said (at [37]):
"As Brennan and Gaudron JJ and I said in Devries v Australian National Railways Commission, 'the trial judge had the advantage, which was denied to the judges of the Full Court, of being able to judge the true character and intelligence of the plaintiff'. "
11 His Honour added (at [41]):
"One of the consequences of the 'advantage' of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors - credibility, matters for and matters against - that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate
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- representation of an oral trial before a judge or an oral trial before a judge and jury."
- Adopting these principles, I am unable to conclude that there was any error on the part of the learned trial Judge in reaching the conclusions he did on the issue of the respondent's credibility. Once that conclusion is reached, the task of the appellant in upsetting the assessments of damage made by the learned trial Judge becomes difficult.
12 The learned trial Judge dealt with the accident of 21 September 1990 and its consequences, concluding that the respondent suffered severe soft tissue injury to the neck which resulted in a painful neck and headaches. This condition restricted the respondent's activities and caused her to be unable to continue working. It also impacted on her personal and domestic life occasioning the need for the provision of domestic services from her husband and other family members.
13 In reaching these conclusions the learned trial Judge relied upon the evidence of a neurosurgeon, Mr George T Wong. In a report tendered in evidence, Mr Wong concluded, according to the history supplied to him, that the respondent suffered cervical pain, occipital headache and pain in the interscapula region which was related to the motor vehicle accident of 1990. He was not certain that the appellant's congenital abnormality was causing any significant symptoms. He believed her motor vehicle accident related symptoms were likely to render her incapacitated for employment.
14 Mr Peter Watson, another neurosurgeon, had suggested that Mr Wong review the respondent in order to express a second opinion on the case. Mr Watson had himself considered that 50 per cent of the respondent's current symptomatology was related to the motor vehicle accident, but 50 per cent of her ongoing symptomatology, particularly the worsening of headache and cervical spine region pain, related to osteogenesis imperfecta. He described the issues in the case as "extremely complex".
15 The orthopaedic specialist who had the primary care of the respondent was Mr R A Mc William, who delivered numerous reports between 1990 and 1996, copies of which were adduced in evidence. He considered the respondent had residual problems of a soft tissue injury involving the facet joints on top of some early degenerative changes, as one would expect in a person of her age. He was hopeful in 1991 that there might be some improvement in the symptoms, but neither then nor the following year could he offer any treatment, other than advising the
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- respondent to keep her neck mobile and use anti-inflammatories and analgesics. Not surprisingly, he did not seen her again until 1996. By that time her symptoms of neck pain were still present. Mr McWilliam was of the opinion that the respondent had sustained a neck sprain on top of her pre-existing fragilitas ossium affecting the axial skeleton as a whole. The consequence was that she had suffered considerable loss of amenities of life.
16 One of the respondent's general practitioners was Dr J G N Lagan. In a report tendered at the hearing written on 5 January 1996 Dr Lagan adopted Mr McWilliam's diagnosis and expressed the opinion that the consequences included; destruction of the respondent's conjugal rights and all other social recreational pursuits, reduction in her work efficiency necessitating consideration of earlier retirement than would otherwise be the case, and a requirement for constant help at home from her husband and family. This included a requirement for home help at least twice a week.
17 Against the background of this medical evidence the learned trial Judge was, in my view, entirely justified in concluding that the respondent's activities, including her capacity for work and her capacity to engage in domestic activities, were severely restricted by reason of the accident caused injury. Counsel for the appellant challenged the learned trial Judge's acceptance of the evidence of Mr Wong, but in my view it was open to the learned trial Judge to accept the neurosurgeon's opinion. Whilst it is true that the learned trial Judge failed to give any detailed reasons as to why he preferred the opinion of one doctor over another, it is implicit in his Honour's reasons that careful consideration was given to the content of the evidence of each of the medical specialists called and in the end a selection made between them. It must be borne in mind that Mr Watson frankly suggested that a second opinion from another neurologist would assist the case.
18 It is true that Professor Alex Cohen took a different view. He considered the soft tissue neck injury sustained in the motor vehicle accident to have satisfactorily resolved well within the 10 years which had elapsed at the time of trial. In the first instance Professor Cohen had been unaware of the 1967 and 1976 motor accidents and when these were brought to his attention, he concluded that many of the respondent's symptoms had their genesis in "a much more chronic state of affairs brought particularly to light by the past court evidence".
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19 It is perhaps unfortunate that the learned trial Judge failed to make specific findings as to why some medical evidence was accepted but other medical evidence rejected. In particular, it would have been helpful for the learned trial Judge to have explained why the opinion of Mr Wong was preferred to that of Professor Cohen. Instead, the learned trial Judge simply narrated the evidence and concluded by accepting the evidence of the respondent and that of Mr Wong that the appellant's symptoms at trial were related to the 1990 accident. It seems implicit in his Honour's reasons, however, that careful consideration was given to the content of all medical reports and to the testimony at trial of those doctors who were called. It could not be suggested that his Honour did not carefully weigh up the conflicting evidence before determining that the evidence of Mr Wong was to be accepted. In any event, as I have pointed out, there was evidence supporting that of Mr Wong in the form of the evidence of Mr McWilliam and the general practitioner, Dr Lagan.
20 In Lloyd v Faraone [1989] WAR 154 it was pointed out by Kennedy J (at 165) that a trial Judge is obliged to make sufficient findings of fact in relation to conflicting medical evidence to enable an appellate court to understand the reasoning process which led to the award of damages. In that case there were insufficient findings of fact and a lack of conclusion as to what medical evidence was relied upon to ground the award of damages that was made. No specific finding was made as to the extent of the plaintiff's injuries. That is not, however, this case. The learned trial Judge's review of the medical evidence indicates clearly enough that in the end it was the opinion of Mr Wong which he accepted. There was, in any event, an abundance of additional evidence which supported the opinion of Mr Wong and justified the learned trial Judge's conclusions in relation to impairment of earning capacity and interference with personal and domestic life.
21 The respondent's work history was varied. She was first employed as a receptionist and telephonist shortly after leaving school in the United States. She appears to have worked more or less consistently in the public service until 1985 when she developed a serious asthma problem which caused her to be bedridden for five months. She had taken three months' maternity leave after the birth of her first child in May 1978 and nine months after the birth of the second child in September 1980.
22 After surviving the asthma problem in 1985 the respondent did not return to work for the Commonwealth government, but worked for her then husband who had his own insurance office. She performed secretarial and bookkeeping duties. The marriage ended tragically in
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- October 1987 when the respondent's husband committed suicide. This necessitated the respondent selling the insurance business which her husband had conducted, following which she moved to Western Australia in September 1988. It took approximately two years for the respondent to sort out the personal and financial consequences of her husband's death, but in April 1989 she married her present husband.
23 By 1991 the respondent was desirous of returning to work. Her two children were at high school level and it was her wish that they be educated at private schools. The respondent undertook a Skill Share course and was immediately employed with the Wheelchair Sports Association in the year 1994. Her duties involved mainly clerical work. She was able to transport herself to and from work in her own vehicle, manoeuvring herself in and out of a wheelchair and the vehicle. As time went by, however, she began to experience more and more difficulty in getting to and from work, particularly in relation to her transfer to and from vehicle and wheelchair. At work she did predominantly computer work, which exacerbated the neck pain she had sustained in the 1990 motor vehicle accident. She was, however, determined to cope with work and held on until October 1998 when she fractured a leg in a wheelchair accident. It took six or seven months for her to recover from this fracture, but she attempted a return to work in February 1999. By now it was necessary for her husband to take her to and from work because she was unable to transport herself. By September 1999 she was advised by her doctor to resign from work, which she did.
24 The learned trial Judge appreciated that when looking at the question of loss of earning capacity in this case it was necessary to assess the chance or prospect of the appellant earning income had she not been injured in the 1990 motor vehicle accident. His Honour made reference to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. There, Brennan and Dawson JJ (at 639) explained the approach to be taken in cases such as this:
"The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the plaintiff had not been working for some time before the trial and an evaluation of the plaintiff's earning capacity which was destroyed in consequence of the defendant's negligence. The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an
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- historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what should he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past. Lord Diplock said in Mallett v McMonagle:
'The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.' "
"Can you give us an account of your observations of her in the workplace? --- Jo always seemed to be a hard worker and was there when the need arose, never - you know, many of our workers don't start at 9.00 and finish at 5.00, it's just as things
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- need doing. There are certain times of the year that are more difficult than others and demand more attention and Jo always fulfilled that role and she was always friendly and cheerful and encompassed a lot of things in the office that - she was always doing the dishes when others perhaps didn't and things that perhaps weren't totally her role. Was a very excellent worker.
Did you ever observe her experiencing any problems in the workplace? --- Jo wasn't a person who would - she's not what I call a whinger at all, because she was always quite stalwart in her disposition, I guess, and of course at Wheelchair Sports there are many people with various disabilities but it doesn't enter into your work function and it's not an excuse for anything that you can't do, so we find that our staff and Jo particularly were very good, that there weren't any complaints. On the odd occasion you can, as you do when you work as a team, you can tell when somebody is perhaps not quite right or they're tired or perhaps they have got something that they're working through that perhaps a lot of people would have stayed home for a day off, so, yes, I was aware from time to time that Jo perhaps wasn't as good as what she made out - is how I would describe her."
26 Ms Bowen's assessment of the appellant's deteriorating performance in the final couple of years of her work was as follows:
"Were you able from your own observations to say whether in relation to her struggling and tiredness that remained the same or whether there was any change to that situation? --- Jo was very steady for a long period of time and then deteriorated quickly over the last few - you know, from the time when she finished employment to the previous couple of years before that where she needed time off, whereas before that she didn't take time off in my experience."
27 I have already pointed out that Mr Wong reached the conclusion that the symptoms the respondent suffered from the 1990 motor vehicle accident were likely to render her incapacitated for employment. This view was supported by Dr R A Parker, a general practitioner. He said:
"She started work in 1994. She persisted with the employment for 5 years and then you said that it was the catalyst that forced her retirement from work? --- That chronic neck pain was
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- wearing her down. It was unremittent, it was constant, she was living with it on a daily basis. She was becoming depressed as a consequence of, in part, that chronic neck pain that she was suffering. She showed a lot of fortitude over those years to maintain her work and employment.
So it wasn't the reduced eyesight drama that perhaps was a catalyst? --- Perhaps it was a contributor but I don't think I'm incorrect in saying that the chronic pain was a catalyst. It foreshortened her working life.
It wasn't the fracture of the right leg? --- All of these are contributing factors."
28 The learned trial Judge concluded that if the respondent had been capable of doing so she would have continued with her employment with the Wheelchair Sports Association. His Honour pointed out that since her cessation of employment with the Association there have been no supervening events which would have prevented her from working for lengthy periods. Although there was evidence of stress or anxiety attacks, his Honour thought these were of short duration and not incapacitating. He did, however, conclude:
"For the future however, there is a very significant chance that the various other conditions to which I have referred would prevent the plaintiff from working even if she had not been involved in the motor vehicle accident on 21 September 1990."
- In my view all of these conclusions were open on the evidence.
29 The appellant argues that because the respondent's neck complaints were consistent from the time of the accident up until she obtained employment with the Wheelchair Sports Association in 1994, it could not be said that the September 1990 accident had caused the respondent an incapacity for continued work. Counsel for the appellant stressed the combination of physical and psychiatric disabilities suffered by the appellant, contending that in the light of her other problems it was impossible to find that the injuries caused in the September 1990 accident were the cause of the respondent's incapacity for work.
30 In relation to psychiatric problems the respondent was treated by Dr Oleh Kay. In a report dated 10 June 1998 Dr Kay expressed the following opinion in relation to the respondent:
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- "In my opinion, with reasonable medical certainty, Ms Flavell does have genuine symptoms as a result of the motor vehicle accident, these being pain and reduced mobility, especially of her neck. The result of her problems with her neck is reduced ability with independent living and progressively increased difficulty at sustaining full time employment. In addition, Ms Flavell has evidence of a Depressive Disorder secondary to pain and loss of functioning resulting from the above. Her initial presentation was of depressive symptoms of a severity insufficient to qualify her for a DSM IV diagnosis of Major Depression. Subsequently, her symptoms have worsened, she is now receiving appropriate treatment from her general practitioner and her status is such that she probably suffers from the DSM IV diagnosis of a Depressive Disorder. Ms Flavell also clearly has difficulties in every day life resulting from Osteogenesis Imperfecta, the suicide of her second husband, the terminal illnesses of her mother and father, conflict with her sister and other issues."
- Dr Kay expressed the opinion that the respondent's depressive disorder was the result "of dual causality". He said:
"She undoubtedly had a pre-disposition for the development of a Depressive Disorder, but the pain and loss of functioning as the result of the motor vehicle accident on its own may have been sufficient to precipitate such an illness. Certainly, the current manifestations of the disorder are largely conditioned by her previous life experiences."
32 The approach taken by the trial Judge was to calculate a loss of earning capacity (including loss of superannuation benefits) over the 16-year period between age 49 and 65. Using the appropriate multiplier on the 6 per cent discount tables (543) and applying it to a net weekly loss of $563, his Honour reached a figure of $305,709 that represented economic loss for the 16-year period. In relation to loss of superannuation benefits the figure taken was $47 per week and utilising the same
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- multiplier the loss was calculated at $25,521. Each of these sums was discounted by 70 per cent for contingencies. His Honour explained why in the following passage:
"I have set out earlier in these reasons the several disabilities and health problems in which the plaintiff suffered apart from the consequences of the accident on 21 September 1990. There is a very significant chance that those health problems would have restricted the plaintiff's earnings even if not for the accident on 21 September 1990 and it is necessary to reflect that chance in the reduction for contingencies. I also bear in mind Mr Fagan's evidence that it is likely that the plaintiff would have received a pay rise of between 5% and 10%. I have concluded that an appropriate deduction for contingencies is 70 per cent."
"… the generalization, that there must be a 'scaling down' for contingencies, seems mistaken. All 'contingencies' are not adverse: all 'vicissitudes' are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad."
34 In this case, however, the learned trial Judge was not dealing with a person who had prospects or chances of advancement or increasingly remunerative employment. The facts of this case clearly demonstrated that the contingencies of life for this respondent were most certainly likely to be adverse.
35 It is true that the general rule is that the standard rate of discount for contingencies in this State will be in the vicinity of 2 per cent to 6 per cent: Foyster v Goynich [1984] WAR 80 at 81; Black v Motor Vehicle Insurance Trust [1986] WAR 32 at 34; Bowen v Tutte (1990) A
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- Torts Rep 81-043; Kember v Thackrah [2000] WASCA 198. However, this was anything but the ordinary case. The complexity of the respondent's condition from birth and by reason of subsequent developments in her life put her in an entirely different position from the normal plaintiff.
36 Because the deduction for contingencies is so much a discretionary judgment of a trial Judge, the problems arising when a challenge is made to such an assessment are formidable for the appellant. The matter was put in general terms in Gamser v The Nominal Defendant (1977) 136 CLR 145 by Aickin J at 159 in this way:
"The problems arising when a challenge is made to a trial judge's assessment of damages have been examined in this Court in two recent cases, Precision Plastics Pty Ltd v Demir and Wilson v Peisly. The judgments in those cases demonstrate the difficulties involved in the application of settled principles in this branch of the law to particular facts. I do not think that the present case depends on any matter where any difference of principle has arisen. It is sufficient to say that I regard the following observations of Barwick CJ in the latter case as apposite in the present case:
'The setting aside of an award of damages in a trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion, be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small: and therefore of itself a demonstration of error present though otherwise undisclosed. The less ponderable the elements of the damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of a trial not blemished by error or irregularity.' "
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- added. In the context of an award of damages of $260,100, these were but small components and in my view they were, in any event, justifiable allowances. They were based upon the conclusion of the learned trial Judge that the accident-caused injuries had brought the respondent's employment to an end.
38 The challenge to the allowances for both past and future gratuitous services is based upon the contention that there was no or insufficient evidence to justify a requirement of the respondent for a high level of assistance at home as a result of the accident caused injuries.
39 In relation to this head of damage the learned trial Judge understood the principles applicable to the calculation of damages for gratuitous services rendered. His Honour adopted what was said in Newman v Nugent (1992) 12 WAR 119. There, Franklyn J (at 123) pointed out the need to distinguish domestic and household services for the whole household from those which relate purely to the requirements of the plaintiff herself:
"It is clear that that sum was awarded for the services provided by the father and daughters since the accident in respect of domestic and household work previously performed by the respondent for the benefit of the whole household. It seems probable, having regard to his Honour's reasons, that it included in some part the husband's services in the garden to replace such as she might have provided, which might well have been done by way of recreation in any event. The husband did not give evidence. In my opinion his Honour has equated the family's loss of the respondent's services in performing domestic and household duties, chores and activities, both for its communal benefit and for the benefit of specific family members, with an accident-caused need of the respondent for such services to be provided to her, the need arising out of her accident-caused inability to provide such services herself. He has overlooked that the relevant need is her need for services to be provided to herself because of her accident-caused incapacity to look after herself."
- In this case it seems to me that his Honour went to considerable trouble to isolate just what it was that the respondent required for herself by way of services. In that respect his Honour accepted the respondent's own evidence on the subject. It was supported by evidence from her husband.
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40 In the result, the learned trial Judge assessed five hours per week as being the respondent's need in relation to shopping, garden work, cooking and other household requirements, with an additional eight hours per week for personal care for the respondent alone. This loss was calculated for the preceding 10 years on the basis of 13 hours per week at $12 per hour. The total arrived at was $82,992, but the learned trial Judge considered that it would be appropriate to discount that sum by 40 per cent for contingencies. He said:
"It is necessary therefore to reduce the past loss for the chance that she may have required care and assistance even if not injured in the motor vehicle accident. I assess the appropriate reduction for that chance at 40 per cent."
41 When it came to the allowance for future gratuitous services the calculation was again made on the basis of 13 hours per week at $12 per hour. An ordinary life expectation for the respondent would have been 33.73 years but his Honour accepted that there was some shortening of that life expectation. He added:
"Of greater significance in calculating the claim for future care services is the very significant chance that even if not for the accident the plaintiff would need care as a result of her other conditions. I have concluded that it is appropriate to deduct 80 per cent from this claim for these chances."
- In the result, the allowance for future gratuitous services was $24,086. The appellant contends that the learned trial Judge's allowance for both past and future gratuitous services was demonstrably erroneous in that it was unsupported by any medical evidence.
42 It may be true that no medical practitioner specified a number of hours required by the respondent for gratuitous care. There was, however, evidence in relation to the matter. Dr Lagan expressed the view in his report of 5 January 1996 that the respondent required constant help at home from her husband and family and that the situation would probably be permanent. He added that a home help was required at least twice a week. Mr McWilliam, in a report of 25 March 1996, stated that the respondent had assistance from Community Options to do house work and had considerable support from her son and daughter. He added that "this assistance has only been rendered necessary since her accident". In an earlier report of 16 January 1992, Mr McWilliam had stated that the appellant's "recreational activities" had been limited and restricted as a
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- result of the accident. This could be taken to include a range of activities about the house.
43 In my view it was open to the learned trial Judge to conclude that there was a need for gratuitous services both past and future. Although in the cross-appeal the respondent contends that the deductions for contingencies should have been 20 per cent and 40 per cent rather than the 40 per cent and 80 per cent deducted for past and future gratuitous care respectively, I can see no basis upon which the learned trial Judge's assessment should be varied. In my view his Honour rightly appreciated that there was a very significant chance that irrespective of the September 1990 accident the respondent would need care in years to come in consequence of her multitudinous problems. Although a deduction of 80 per cent for contingencies is a very high deduction, this was an exceptional case, and everything pointed to a worsening of the respondent's congenital condition in years to come. Indeed, Mr Peter Watson in his report of 9 November 1998 confirmed that the congenital disease of osteogenesis imperfecta was an abnormality "likely to deteriorate with time". Professor Cohen also thought that the disease was in its nature liable to worsen with time and more severely so in women, particularly after the menopause.
44 Although counsel for the respondent contended that the assessment for gratuitous services was flawed by reason of a lack of evidence that pre-existing health problems had worsened since the accident or would be likely to worsen, I consider the evidence to which I have referred was sufficient to establish that fact. It is true that the respondent had coped with all aspects of daily life despite her pre-September 1990 disability, but the whole history of the respondent's medical condition justified the learned trial Judge making a very substantial discount from any allowance for future gratuitous services.
45 The learned trial Judge was faced with a very complex assessment of damages. The neurosurgeon, Mr Peter Watson, had described the case as having issues which were "extremely complex" and he was undoubtedly correct about that. The difficulties facing a trial Judge in assessing damages in a case such as this cannot be underrated. It must always be remembered that it is the final award of damages in the form of a single lump sum which is appealed against. In State Government Insurance Commission v Hitchcock, unreported; SCt of WA; Library No 970089; 11 March 1997, Ipp J (at 13) said:
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- "The appropriate test on appeal, in circumstances similar to the present, was examined closely by the Full Court of the Supreme Court of Queensland in Calder v Boyne Smelters Ltd [1991] 1 Qd R 325. Cooper J, at 346, concluded:
'[T]he judgment [for damages for personal injuries] is a global award to compensate for all the detriments suffered and it is made only once by the payment of one lump sum. Thus, although an assessing judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated (see Gamser v The Nominal Defendant (1977) 136 CLR 145 per Stephen J at 149-150 with whom Gibbs J agreed at 148 and Paul v Rendell (1981) 55 ALJR 371(PC) at 376-377). It is the allocation of particular sums which discloses the process of reasoning which led to the exercise of judicial discretion which itself has given effect to in the final award in the form of a single lump sum …
What is appealed against is the total sum awarded ie the discretionary judgment as reflected in the lump sum award. Whether the appeal is successful depends upon the answer to one ultimate question. That question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt.' (See also Shephardson J at 342-343).
These principles are particularly pertinent in a case such as the present, where the damages award is relatively high and is made up of several components, the majority of which are based on discretionary considerations (cf Miller v Jennings (1954) 92 CLR 190 at 195-196). In these circumstances there is considerable room for individual choice in regard to a multitude of factors. It may well be that in regard to certain particular components of the award, the appellate tribunal might consider that the trial Judge, without acting on a wrong principle of law or misapprehending the facts, has awarded too much or too little. Where errors falling into that category lead to relatively insignificant increases or reductions in the overall sum awarded, the appeal court will not normally interfere. In regard to issues of that kind the question is whether the total sum awarded is outside the limits of a sound discretionary judgment, and not
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- whether some portion of that total sum standing alone would call for the court's intervention."
46 Seen as an overall assessment of damages, the allowance of $261,100 to the respondent seems to me to have been within the range of a sound discretionary judgment. It cannot, in my view, be said that it was either too much or too little. The individual heads of damage which were under attack on appeal were, in my view, justifiable allowances for the reasons which I have given. I would therefore dismiss the appeal and the cross-appeal in each case with costs.
47 BURCHETT AUJ: I have read in draft the reasons for judgment of Miller J. I agree with them and the orders he proposes.
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