Layt, Christopher Damien v Marhaba, Rubie
[1996] FCA 583
•20 MAY 1996
CATCHWORDS
APPEAL - appeal from decision of Full Court of Supreme Court of Australian Capital Territory - dismissal by that Court of appeal from Master of Supreme Court - only question whether award of damages for personal injury manifestly excessive - approach of this Court to second appeal against exercise of discretion - plaintiff injured in motor accident - 21 years of age at time of injury - some unsatisfactory features of plaintiff's work history - analysis of evidence and other material.
CHRISTOPHER DAMIEN LAYT v RUBIE MARHABA
NO. AG 59 OF 1995
CORAM: SHEPPARD, WILCOX, EINFELD, FOSTER and SACKVILLE JJ
PLACE: SYDNEY
DATE: 20 MAY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. AG 59 of 1995
)
GENERAL DIVISION )
On Appeal from the Full Court of the Supreme Court
of the Australian Capital Territory
BETWEEN: CHRISTOPHER DAMIEN LAYT
Applicant
AND: RUBIE MARHABA
Respondent
MINUTES OF ORDER
CORAM: SHEPPARD, WILCOX, EINFELD, FOSTER and SACKVILLE JJ
PLACE: SYDNEY
DATE: 20 MAY 1996
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant pay the respondent's costs of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. AG 59 of 1995
)
GENERAL DIVISION )
On Appeal from the Full Court of the Supreme Court
of the Australian Capital Territory
BETWEEN:CHRISTOPHER DAMIEN LAYT
Applicant
AND:RUBIE MARHABA
Respondent
CORAM: SHEPPARD, WILCOX, EINFELD, FOSTER and SACKVILLE JJ
PLACE: SYDNEY
DATE: 20 MAY 1996
REASONS FOR JUDGMENT
SHEPPARD J: This is an appeal from a judgment of a Full Court of the Supreme Court of the Australian Capital Territory. It in turn dealt with an appeal to it from an assessment of damages by Master Hogan of the Supreme Court. The Master's judgment was dated 24 February 1995 and that of the Full Court, 14 September 1995. The Full Court dismissed the appeal. The Master directed entry of judgment in the sum of $273,081 made up of a number of components. These included a sum of $38,000 for past loss of income on which was awarded a sum of $8000 for interest and $150,000 for future loss of income. It is unnecessary to refer to the remaining components of the award because no challenge has been made by the appellant here in relation to them. The two amounts which make up the total of the award which are challenged are the amounts of $38,000 for past loss of income and $150,000 for future loss of income. In the submission of the appellant, the amounts awarded in respect of these two heads of damage were manifestly excessive.
The Full Court of the Australian Capital Territory in its joint judgment said, amongst other things, that it was the Master's view that, although the plaintiff was less than reliable as a witness, that assessment did not imply that she was not good at her job or that she had an insecure future in the hospitality industry. The Court said that the Master had identified the real issue as being whether the plaintiff had really suffered the disabilities of which she complained both in her evidence and to various doctors. The defendant had suggested that her presentation was at least to a substantial degree fabricated. It was open to the Master, having duly noticed the legitimate criticisms of the plaintiff's evidence, to have accepted her complaints as genuine. That was the finding which the Master made. That finding was based upon the Master's assessment not only of the plaintiff as a witness but also of those witnesses who gave evidence supporting the plaintiff's claimed level of disability.
The Court went on to say that it was not open to it to set aside those findings unless it formed the view that they were inconsistent with facts incontrovertibly established by the evidence or based on evidence which was glaringly improbable. Reference was made to the decision of the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472. The Court concluded that the Master's findings as to the plaintiff's level of disability and her pre-accident work history did not warrant any such criticism with the consequence that it was not appropriate for the Court to adopt a contrary view.
Before coming to the matters which have been emphasised to us by counsel for the appellant this morning, it is appropriate to make reference to the fact that this is a second appeal from the exercise of a discretion by a judicial officer. In this respect it is apposite to refer to what Barwick CJ said in Baffski v Brewis (1976) 51 ALJR 170, namely:
"Where there have been concurrent findings of fact or concurrent views as to the exercise of a discretion an appellant has in this court [the High Court] at least a difficult task in persuading it that nonetheless it ought to set aside such findings or that exercise of discretion. The court must necessarily give weight to such concurrent findings so of course in a proper case it is able to depart from them."
That passage was cited by Mason J (as he then was) in The Commonwealth v Introvigne (1982) 150 CLR 258 at 274. His Honour went on to say:
"The approach was not inconsistent with Warren v Coombes which had particular reference to the responsibility of an intermediate court of appeal in reviewing the finding of fact made at first instance."
Reference may also be made to the judgment of Gibbs CJ in Introvigne (at 262). In my opinion, we should approach this case with that consideration in mind.
The principal attack that has been made on the Master's judgment, because that is what counsel for the appellant has been constrained to do, is that there was no medical evidence or no satisfactory medical evidence to warrant the conclusion that the respondent, that is to say, the plaintiff in the action, would continue to be disabled even to any extent for the whole of her working life. The Master was said not to have allowed properly or sufficiently for the circumstance that recovery might or indeed was likely to occur. The argument took us, of course, to the relevant passages in the Master's judgment, and at the risk of perhaps citing too much I find it necessary to refer to a good deal of what the Master said.
The plaintiff's injuries, which disabled her, were principally a pain which she suffered in her neck and disability which she suffered in her lower spine. It seems to be the question of the extent of the disability and the nature of the injury in the lower spine which was the nub of the problem between the parties before the Master.
The Master said that the only doctor who gave evidence and was cross-examined, was Dr Guirguis. He is a general practitioner. The Master said that he continued to treat the plaintiff - that is to say, the respondent - up to the time of the hearing. He agreed with the diagnosis of a Dr Lee of post-traumatic stress order. Dr Guirguis thought that massage that the plaintiff was receiving would be helpful to relieve anxiety and stress. He also thought that the complex of her symptoms and complaints was such that they were probably genuine and such as would be difficult for her to simulate. Her magnification of her symptoms he attributed to the depression rather than to exaggeration. The Master said that he accepted that opinion and added that when asked about the prognosis expressed by Dr Andrews, a neurologist, that given the right support and motivation a slow and eventual recovery could be expected, Dr Guirguis responded, "Yes, eventually recovery, but I don't know when."
Dr Guirguis said in the course of his cross-examination:
"Q.Do you disagree with Dr Andrews' opinion also expressed in September this year, 'Given the right support and motivation I think we can expect a slow and eventual recovery?
A.Yes, eventually recovery, but I don't know when. It may take months. It may take years.
Q.Well, she's likely to be substantially better within a period of a few years, is she not?
A.That's something in future. I can't answer this question.
Q.You just don't know?
A.True."
Dr Andrews was not called to give evidence, but his reports were in evidence before the Master. The conclusion of what I believe is his last report on 2 September 1994, was:
"I think the treatment now should be concentrated on the rehabilitation and taking objective measurements of back function with Dr Corry's three-dimensional dynometry."
Importantly Dr Andrews said:
"Given the right support and motivation I think we can expect a slow and eventual recovery."
That is the passage to which Dr Guirguis had referred in his oral evidence. Against the background of that evidence the Master proceeded to his task.
It should be said that there was a substantial attack on the credit of the respondent by counsel who then appeared for the now appellant. The attack was based upon what was claimed to be an unsatisfactory work history created by a series of incidents involving a failure by the respondent to observe punctuality in her employment. There were some other matters. It is plain that at times the respondent gave answers to these questions which were misleading - the word used by the Master - and, indeed, one might say untrue. Her credit thus was substantially attacked. The Master was well aware of this, as
appears from a number of the things he said in the course of his remarks.
He said that the accident happened in March 1991. The respondent resumed work at the Hayman Island Resort in April 1991. She had been given earlier warnings before the accident concerning her punctuality, and the Master said that there was another written report, this being after the accident, by a Mr Clauson of the Hayman Island management on 1 November after she had arrived for duty one hour late. She attributed that to failing to be notified about the need to be on duty an hour early. Mr Clauson gave evidence, so the Master said, that he had asked her to be on duty by 8 o'clock. His evidence was accepted, but Mr Clauson said also that she was a very good waitress and "apart from minor discrepancies I would think she was a good employee."
Shortly before the accident in March 1991 the respondent had received a written and favourable reference from a supervisor who was leaving Hayman Island. The Master said that, although there was no formal dismissal for misconduct, the plaintiff said she had a discussion with the personnel manager and resigned. There are documents and records from Hayman Island in evidence and we have been referred to those. I do not find it necessary to comment further on them.
The Master said eventually that the real significance "of all this evidence" about the respondent's employment history was the light it shed on her credibility. He said he accepted that she was capable of giving misleading evidence and that it was necessary to examine her evidence with care and in the light of other evidence, but did not think that it demonstrated that she was not good at her job or that she had an insecure future in the hospitality industry.
The Master went on to deal with the respondent's present employment and said that the principal issue identified by counsel for the defendant was the extent of her loss of income earning capacity. That depended in part upon the reliability of the medical opinions based as they were upon the truthfulness and accuracy of the respondent's complaints to the doctors. It also depended on an assessment of what her employment history would have been had she not been injured.
The Master continued:
"Despite the legitimate criticism that was made of her reliability as a witness when she was speaking about her employment history, I think that in general she was not simulating or consciously exaggerating in her complaints to the doctors. Some of the radiographic evidence did indicate abnormality at the level of L5/-S1. It did not demonstrate interference with the nerve roots at that level or any abnormality in the sacroiliac area. But it is notorious that damage can be done to tissues in those areas which is not demonstrable by radiographic evidence. Although she could have co-operated more fully in Dr Corry's first rehabilitation programme, she willingly underwent such treatment as she was advised to have.
The change in her lifestyle was so marked following the accident that I am sure that she was not pretending her pain.
There is also no doubt that continuing pain, the failure of treatments to alleviate it and the restrictions on her activities, resulted in a post traumatic stress disorder identified by Dr Lee and Dr Guirguis and confirmed by the findings of Dr May and Dr Ashman."
The Master said that it might be conceded that the extent of some of her complaints was functional, but in the light of her history these were no less real to her. He said that he found himself in agreement with Dr Guirguis that the complex or her symptoms and complaints and their consistency over a number of years was such as to make it probable that her complaints were genuine. He said:
"In summary, therefore, almost four years ago this vital, energetic and attractive young lady, then only 21 years of age, suffered an injury to her neck and lower back which was mainly soft tissue in nature, although some pathology was caused to the lumbo-sacral disc."
The Master said that the respondent might get better "to some extent". If she did, no-one could say when it would happen. It was probable that if recovery did take place, it would be slow.
The Master then went on to attribute figures to the various components of the award. Coming to economic loss, he said an accountant's report calculated her past economic loss on the basis that, had the accident not happened, she would have remained in constant employment at Hayman Island or some
similar resort. On that basis her loss calculated to 7 November 1994 was $42,484.
The Master said that he did not think that the assumption underlying that calculation was warranted. He had no difficulty in accepting that since the accident the respondent had worked as often as she could. But even in her evidence she did not claim that she had or even wanted a permanent position at Hayman Island. It was a pleasant place to work but her tenure was not secure for disciplinary reasons.
He referred to the fact that she enjoyed breaks from time to time. He said as a matter of judgment, and bringing the loss up to date - I interpose to say that his judgment was reserved for a period of about three months and no adjustment seems to have been made to the accountant's figures for that period - he would allow on that basis in round figures $60,000 as the net amount that the respondent might have earned from which about $22,000 in actual net earnings should be deducted so that her loss was $38,000.
He then referred to the accountant's report on future economic loss which was commissioned on the assumption that but for the accident, the respondent would have continued to work until age 65 as a waitress at Hayman Island. The Master said: "Resisting with difficulty the temptation to use flamboyant language, I comment simply that the evidence does not support such an assumption. Nor does common sense."
The Master then considered a number of possibilities. He said that, as a starting point had she not been injured and still been working at Hayman Island, her income earning capacity would have been of the order of $350 net per week. The present value of a loss of $250 per week, the Master said, thus discounting that figure of $350 by $100, was $305,938 over 40 years allowing an interest rate of 3 per cent. The $100 may have reflected - I am not quite sure about this - the fact that $100 per week was found to be the extent of the respondent's earning capacity at the date the Master gave his judgment.
He continued:
"There must be taken into account the possibilities that she might not have been in constant employment, that she might not have worked to anything like the age of 65, that she might in 5, 10 or 15 years recover to the point where she could work full time again at some suitable form of employment, and the usual contingencies of life.
On the other hand, it is obvious that there will be a substantial diminution in her income earning capacity for a substantial period and some diminution for the whole of her working life.
As a matter of discretionary judgment I award $150,000 for loss of future income earning capacity."
The Master said it was probable that the respondent would not have been in permanent employment at Hayman Island for long enough to qualify for any substantial employer-financed superannuation and that he had taken the future loss of such benefits in the future into account in deciding her loss of income earning capacity.
The real question we have to grapple with - not forgetting what has been earlier said about the nature of this appeal - is whether the sum of $150,000, dealing first of all with future economic loss, is manifestly excessive. That is the only basis, so it seems to me, upon which an interference with the award could be justified. Having read carefully the judgment both of the Full Court of the Supreme Court and of the Master, I am unable to detect in the approach the Master took, or in the figures that he arrived at, that quality of error which must be present before a Court such as this is justified in interfering.
As the Full Court remarked, the fact that judges sitting on an appeal from the Master's judgment might not themselves have awarded as much as the Master did is not the question. The question is whether the amount is manifestly excessive and thus appealable. Dealing with the question of loss of earning capacity by any young person, and after all she was only 24 years of age at the date that the matter was tried - she was less than 21 I think at the time of the accident - is a particularly difficult exercise.
One's experience of life teaches one that a person of the respondent's age has very often not settled into a pattern that will be a life long pattern and that there are sometimes to be found in people of that age unreliabilities and indeed other undesirable qualities which disappear as a person matures. That was a matter that the Master plainly took into account. Another matter that is plain on the face of what he said is that he found that the respondent had underlying all the problems which were relied upon by the appellant, a good personality, and he thought, so it seems to me on the face of what he said, that fundamentally she was well motivated and unlikely to be the style of person who would do little during her life. In other words, she had a future.
The extent of the effect of the injuries in future was difficult to judge. The Master had the benefit of the medical evidence to which I have referred and did the best he could with it. The matter was peculiarly one for him, he having seen the respondent in the witness box and being in a position to make a judgment on all the material facts and matters that had to be weighed up in making a decision. I am quite unable to say that I regard the amount awarded as manifestly excessive.
I have been more troubled about the amount awarded for past economic loss. It seems to me that a proper approach might have warranted the awarding of a somewhat lesser sum, but then I ask myself, how much less. Having reflected upon what the Master said and the fact that he took the view that the respondent did the best she could during the period
between the accident and the date of hearing, I do not feel disposed to interfere with that amount either.
For the reasons I have given I would dismiss the appeal.
WILCOX J: I agree with everything that has been said by the presiding judge. I simply add one comment: counsel for the appellant took us to some calculations in which we were invited to compare the loss of income assumed over various periods of time. The starting point for those calculations was the earnings of the respondent at the time of her accident. The problem about that approach was that at the time she was still only 20 years of age and working in a job as a waitress at a resort. It seems to me inherently unlikely that that level of income could be regarded as representing anything like her long term earning potential.
In making that comment I do not criticise counsel for that approach because those were the only figures available and indeed they were the figures that were looked at by the Master, but I think the exercise emphasises the point that was made by the learned presiding judge, that when one is talking particularly of young people who have not yet reached their potential, everything depends upon the assessment of that person by the tribunal of fact.
The point that was made by the High Court in Devries should not be regarded in my opinion as being limited to matters of credibility. Wherever the personality or characteristics of the individual plaintiff, particularly in a personal injuries case, forms an important factor in making a judgment, then in my opinion, the trial court has an inestimable advantage over an appellate court.
In this particular case the Master made what he called an exercise in judgment in assessing the financial detriment to the plaintiff of the injury. Necessarily he could only rely on his impression of her with a heavy element of assessment, even guesswork, involved, but he had the great advantage of seeing her and hearing her cross-examined. That is an advantage which no appellate court can capture. In my opinion the assessment that was made was within the range open to the Master and I share the view that the appeal should be dismissed.
EINFELD J: I agree in the orders proposed by the learned presiding judge and agree with his and Wilcox J's reasons.
FOSTER J: Yes, I also agree with the orders proposed. I have nothing to add.
SACKVILLE J: I also agree with the judgment of the learned presiding judge and I agree with the additional observations that have been made by Wilcox J.
SHEPPARD J: In those circumstances then the appeal will be dismissed with costs.
I certify that this and the fifteen (15) preceding pages are a true copy of the reasons for the judgments herein of the members of the Court.
Associate
Dated: 20 May 1996
APPEARANCES
Counsel for the Applicant: B.M.J. Toohey QC
Solicitors for the Applicant: Mallesons Stephen Jaques
Counsel for the Respondent: D.A. Wheelahan QC and
P.J. Mooney
Solicitors for the Respondent: Snedden Hall & Gallop
Date of Hearing: 20 May 1996
Place of Hearing: Sydney
Date of Judgment: 20 May 1996
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