Maher v Russell
[2022] ACTSC 297
•28 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Maher v Russell |
Citation: | [2022] ACTSC 297 |
Hearing Dates: | 25 October 2021 – 27 October 2021, 25 January 2022 |
Submissions Last Received: | 25 July 2022 |
DecisionDate: | 28 October 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [340] |
Catchwords: | DAMAGES – PERSONAL INJURY – Where defendants conceded liability for damages arising from motor vehicle accident – where plaintiff had pre-existing fibromyalgia – where plaintiff’s evidence was that following accident condition became symptomatic – only issue quantum of damages – general damages – past and future domestic assistance – where expert estimate found to not reflect plaintiff’s evidence – where basis of proposed expert calculation not explained in submissions or evidence – domestic assistance best assessed on plaintiff’s evidence as to need – consideration of appropriate hourly rate for future care – past and future economic loss – consideration of appropriate method to calculate economic loss – where plaintiff’s claim relied on comparison of earnings rather than a focus on loss of capacity – where current capacity impacted by accident and other matters – consideration of appropriate method to assess award for superannuation – consideration of claim for future out-of-pocket expenses |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 45 |
Cases Cited: | Amin v Vidal [2020] ACTSC 227; 94 MVR 285 Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33 |
Parties: | Kelly Maher (Plaintiff) Juanita Russell (First Defendant) Insurance Australia Limited Trading as NRMA Insurance (ACN: 000 016 722) (Second Defendant) |
Representation: | Counsel D Richards (Plaintiff) S Onitiri (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (Defendants) | |
File Number: | SC 361 of 2020 |
LOUKAS-KARLSSON J:
Introduction
This proceeding concerns a personal injury matter arising from a motor vehicle accident. The accident occurred on 16 October 2017 in the Australian Capital Territory when the plaintiff’s vehicle, which was stationary at a set of traffic lights, was hit from behind by a vehicle driven by the first defendant.
The speed of the vehicle was estimated at around 30 kilometres per hour. The second defendant to these proceedings is the first defendant’s insurer. The second defendant admitted liability for the accident. There is no suggestion that the plaintiff was contributorily negligent.
The sole issue in the proceeding is the appropriate quantum of damages.
The plaintiff ultimately submitted that a sum of $972,914 (plus costs as agreed or assessed) was appropriate (plaintiff’s submissions in reply dated 4 March 2022). The defendants submitted that $193,599.02 was the appropriate figure (defendants’ written submissions dated 24 January 2022). As can be seen, there is a significant gulf between the parties as to the appropriate quantum of damages, which is the background to this case in which liability was conceded, coming before the Court.
The plaintiff’s revised proposed sum, as set out in the submissions in reply, is set out as follows:
(a) General damages – 180,000
(b) Interest on general damages – 7,200
(c) Past out of pocket expenses (agreed) – 14,111
(d) Interest on past out of pocket expenses (agreed) – 1,137
(e) Future out of pocket expenses – 109,154
(f) Past domestic assistance – 62,213
(g) Interest on past assistance – 2,448
(h) Future domestic assistance – 159,109
(i) Past economic loss – 46,318
(j) Interest on past economic loss – 8,337
(k) Future economic loss – 382,887
The defendants’ sum (adopting for convenience similar headings to those used by the plaintiff) is broken down as follows:
(a) General damages – 70,000
(b) Interest on general damages – 4,500
(c) Past out of pocket expenses and interest (agreed) – 15,249.02
(d) Future out of pocket expenses – 10,000
(e) Past domestic assistance – 5,000
(f) Future domestic assistance (inc. a 30% reduction for vicissitudes) – 25,000
(g) Past economic loss – 20,000
(h) Interest on past economic loss – 5,000
(i) Future economic loss (inc. a 30% reduction for vicissitudes) – 38,850
In essence, the differences in the amounts proposed by the parties relates to four issues, namely:
(a) What award for general damages is appropriate;
(b) What award for past and future domestic assistance is appropriate;
(c) What award for future out of pocket expenses is appropriate; and
(d) What award for past and future lost earning capacity is appropriate.
Before turning to these issues, it is convenient to set out the evidence of the various witnesses in the proceeding.
Outline of the Evidence
The Plaintiff
The plaintiff gave oral evidence concerning the accident, her post-accident injuries and the impact that these injuries have had on her daily life. I found the plaintiff to be a compelling and truthful witness, who made appropriate concessions when giving evidence and did not seek to exaggerate her condition.
That finding accords with the approach taken by counsel for the defendants, who noted that the defendants did not submit that the plaintiff was not a person of credit (T367.44-47). Rather, the defendants submitted (as I will address later in these reasons) that the plaintiff made appropriate concessions and that her evidence did not support the amount of damages ultimately claimed by counsel.
The plaintiff’s evidence was that prior to the car accident she was settling into life in Canberra with her daughter and was working full time hours as a contractor with the Australian Digital Health Agency (ADHA).
The plaintiff at this time suffered from fibromyalgia, which she developed following a viral infection she contracted in 2010. The plaintiff’s evidence was that after the initial onset of symptoms from the condition (which the plaintiff described as “very intense”) she may have had some flare ups in the condition but could not recall any periods of significant symptoms prior to the accident in 2017.
The plaintiff’s evidence was that prior to the accident her condition did not affect her day-to-day life and that she had been a physically active person and enjoyed raising her daughter. This had included the plaintiff taking a family “gap-year” in 2016 where she had travelled domestically and internationally with her daughter.
The plaintiff also gave evidence that she had been diagnosed with major mental health conditions earlier in her life, namely depression and post-traumatic stress disorder, but that in the year prior to the car accident she had not required any treatment for these conditions. The plaintiff gave evidence that she did not have any symptoms from her mental health conditions in the year prior to the accident.
In her account of the accident, the plaintiff described her shock after being rear-ended while stationary at a red light. In the plaintiff’s account, immediately following the accident her daughter became very distressed and started screaming after which, understandably, the plaintiff got out of the car to attend to her.
The plaintiff’s evidence revealed that following the accident she had a lot of anxiety while driving and struggled to drive physically due to the pain that she was experiencing (T63.23-26).
The plaintiff indicated that immediately after the accident she had pain in her neck and had also injured her knee and hand as a result of the impact. She attended a general practitioner (GP) on the day of the accident and was provided with a medical certificate for three days, after which she returned to work, but was only able to work reduced hours.
The plaintiff gave a detailed description of the symptoms she has continued to suffer from since the accident.
Her evidence indicates that she has had ongoing pain in her neck and spine, reduced movement and had what she described as “almost … never-ending flare up[s] of [her] fibromyalgia aches and pains” as well as significant issues with her mental health since the accident to the date of the hearing (T58.20-27). The plaintiff also indicated that she experiences regular headaches once or twice a week (T113.9-10).
The plaintiff described the change in her condition in the following terms (at T67.27-31):
… Again, I’ve had a – I’ve gone from having fibromyalgia but not being symptomatic before the accident, to having fibromyalgia and being constantly symptomatic with more intense periods. So I have the pain from fibromyalgia all the time. It’s just the level of intensity that changes.
The plaintiff also gave evidence that following the accident she has had a weak left arm (T96.32-33) and has had difficulty sleeping due to pain and stiffness (T100.24-27). It was also apparent from her evidence that her ongoing pain has impacted how she can engage and play with her daughter (T101.18-31), her ability to maintain relationships (T102.32-37), and her ability to engage in hobbies that she previously enjoyed, such as photography (T112.17-24).
Since the accident, the plaintiff has experienced pain in her temporomandibular joint (TMJ) in her jaw. In relation to her TMJ pain, the plaintiff indicated that, similarly to her fibromyalgia, she has occasional flare ups which require treatment.
In relation to her mental health, the plaintiff indicated that she had been diagnosed with severe depressive and anxiety symptoms after the accident. The plaintiff indicated, however, that she felt like she was coming out of the worst of those conditions leading up to the hearing (T58.42-T59.2). As I will discuss further later in these reasons, this evidence is supported by the opinions of the medical experts.
The plaintiff gave evidence about the treatments she had received since the accident, including appointments with a GP, dentist, specialists and physiotherapists. There were also records of these appointments in evidence before me.
I do not understand the defendants to challenge the accuracy of the plaintiff’s recollection concerning the doctors she visited, or the records contained in the medical bundle (in relation to which doctors the plaintiff saw on which day). In those circumstances, there is no need to discuss that evidence in detail. Suffice to say, it is apparent from the plaintiff’s evidence that she has (appropriately) taken steps to see relevant medical practitioners to manage her conditions. This has, by necessity, led to the plaintiff attending a significant number of appointments with an array of practitioners following the accident.
It is also apparent that the plaintiff’s need for medical attention has varied from time to time. For example, the plaintiff gave evidence, which is broadly supported by the medical records, that she has required additional consultations during a flare up of her fibromyalgia or her TMJ pain. I will turn to discuss the matter of future medical care needs later in these reasons.
In relation to flare ups in her fibromyalgia, the plaintiff in cross-examination accepted that she experiences flare ups as a result of psychological or emotional stressors (T292.37-45). Again, this evidence is supported by the opinions of the medical experts.
Self-evidently, the symptoms the plaintiff describes had an impact on her work arrangements.
Following the accident and until she left her role at the ADHA to take up a position at the ANU in April 2018, the plaintiff’s evidence (at T56.6-9) was that she:
… was contracted to work fulltime hours. I was doing part days; I was taking time off when I needed to. I also had flexible work arrangements which mean that I could do part – work from home if I needed to which gave me the opportunity to rest through the day …
The plaintiff gave evidence that the time off and reduced hours she worked over this period was to receive treatment and recover from the accident. The plaintiff also indicated that, at this point in time, she continued to have pain in her neck and spine as well as some lower back pain and pain in her TMJ.
The plaintiff indicated that she left her job at the ADHA because in that role she was a contractor, and she wanted a role with employee benefits (and, in particular, sick leave entitlements) (T56.27-32).
After leaving the ADHA, the plaintiff worked at the ANU for approximately 10-12 months before taking up a short-term contract with the National Accreditation Authority for Translators and Interpreters (NAATI). After that contract concluded, the plaintiff worked at Radford College for a short period before departing Canberra to care for her mother in Newcastle in August 2019.
Following this, the plaintiff was again employed by NAATI. Her contract was renewed up to (and past) the date of the hearing. The plaintiff’s evidence was that she worked for NAATI under full-time contracts until 24 June 2021, when her contract was renewed for three days a week.
Despite working under full-time contracts, the plaintiff gave evidence that she continued to need time off to manage her conditions. For example, the plaintiff gave evidence that she had told her GP that in the three months leading up to 5 May 2021 she had “missed 65 hours” of work.
The plaintiff also tendered documentary evidence that generally supported those statements. In particular, I was provided with the plaintiff’s leave history for her work at NAATI between January and May 2021. The plaintiff’s evidence in relation to that document was that most of the leave related to her condition, but some of the leave in May 2021 was to help care for her mother.
As I will discuss further, later in these reasons, the reason for the reduction of the plaintiff’s work hours in June 2021 is an issue between the parties.
The plaintiff provided some context to her reduction of hours in June 2021 (at T69.39-45):
Again, on paper it looks like it is a major change going from full time to part time, but the reality for me has been that I've had full time contracts, but I haven't been able to always work on full time hours, because I've had to take time off when I've had major flare-ups, so really, the idea of going part time was to try and stabilise my work a little bit more and give everybody a bit more certainty around what I was doing on what days.
In her evidence-in-chief, the plaintiff was asked about a medical certificate prepared by her GP dated 5 May 2021 which discussed her reduction to part time hours. That certificate stated in part that:
[The plaintiff] has requested a letter regarding her transition from full time to part time work. I would support this decision for medical reasons …
It became apparent during the plaintiff’s evidence that by the time she sought this medical certificate from her GP she had already signed an employment contract for reduced hours from June 2021.
In cross-examination, (at T198-199) the plaintiff was asked about her motivations for seeking that letter from her GP in circumstances where she had already signed a contract for reduced hours with her employer. In response the plaintiff indicated that:
Plaintiff: … I didn’t give the fact that my reduction in hours would have any impact on this case. At the time that it occurred, later in talking to my lawyers we just clearly discussed that as part of my claim and I talked to Dr Ali about that I had gone part-time and had that discussed with her.
Mr Onitiri: So that consultation and that certificate that followed wasn’t because you needed it for negotiations with your employer, was it?
Plaintiff: No. I didn’t need it for negotiations with my employer … my employers were well aware … of my limitations.
Mr Onitiri: … It was only for the purpose of assisting this case, wasn’t it?
Plaintiff: It was to provide evidence that supports my reasons for going to part-time.
In cross-examination, the plaintiff was also asked whether the reduction in hours was initiated by her employer, and whether it was due to budgetary reasons caused by the pandemic. I will return to this matter (and the plaintiff’s answers to those questions) later in my reasons.
The plaintiff gave evidence that since she reduced her work hours in June 2021, she has noticed that her symptoms increase in severity throughout the week as she is working, but that she can then rest from Thursday to Sunday while managing various household tasks and caring for her daughter.
The plaintiff also gave evidence that following her reduction in work hours she continues to have:
… times when my pain levels or my fibromyalgia flare ups or my neck and back stiffness and pain flare and it doesn’t necessarily fall on my days off, so there [are] times when, even when I’m working reduced hours, that I still have to access leave to manage … that.
The plaintiff was also cross-examined in relation to the assistance that she received from her friends and daughter. I will discuss this evidence in more detail when assessing the claims for past and future assistance, however, broadly, the plaintiff’s evidence was that following the accident her daughter has helped her with various tasks around the house and she also received 1-2 days of childcare assistance (in total) referable to injuries from the accident. The plaintiff’s evidence was that she did not presently have any difficulties in caring for her daughter (T292.15-16).
There is one final matter of the plaintiff’s evidence that ought to be highlighted. Namely, that while at the ANU, the plaintiff was involved in what was referred to by the parties and the plaintiff as the “ANU incident”. For convenience, I will adopt this terminology. I note, however, that this neutral descriptor should not in any way be taken to be a minimisation of the event in question.
The plaintiff described the ANU incident in the following terms (at T60.5-17):
So four weeks after I started at the ANU, I was dealing with an employee that was the subject of some performance issues, mainly around erratic behaviour and harassment of other staff. I had had cause to meet with him a couple of times to discuss his behaviours in the workplace. Late on a Friday afternoon, I was in the building by myself and he sought me out and found me. While I was in that building, he stood between me and the exit and my access pass and phone and threatened me. I was caught in that room for probably 20 to 25 minutes trying to negotiate my way out of that room without a physical altercation. That was difficult, and after the incident occurred there was a workplace investigation at which time he was suspended. There [were] threats made in which I had to seek an anti-violence order and that issue took several months to resolve.
In cross-examination, the plaintiff gave evidence that these threats included serious threats of harm to the plaintiff and that the individual involved communicated to the plaintiff that he would kill her.
Dr Ali
Dr Ali is the plaintiff’s GP in Canberra and has treated the plaintiff since the accident. Various medical records including medical certificates written by Dr Ali were in evidence and she gave oral evidence at the hearing.
According to her evidence, Dr Ali has been a GP since 2013 and in 2015 attained her fellowship. I do not understand Dr Ali’s credentials to be challenged by the defendants.
Dr Ali has continued to treat the plaintiff in relation to her injuries after the plaintiff moved to Merimbula.
Dr Ali gave evidence that she had referred the plaintiff to various specialists over this time and gave evidence as to the general injuries that the plaintiff has had since the accident. Dr Ali’s evidence regarding the plaintiff’s injuries included the following (at T170.14-30):
She had multiple generalised aches and pains that were affecting her ability to perform her functions at work and really to manage the pain at home even. … [I]t was affecting her mental health apart from the physical aspect of it. But it was very generalised in terms of … there was shoulder pain, there hip pain, it was affecting her gait as well. And it was to the extent that she actively had had to reduce her work hours because there was no other option, it was an ongoing sort of progressive pain that wasn’t getting managed with the hours she was doing.
…
Yes, but she did have shoulder pain, neck pain, hip paid, back pain, um, even chest pain. That was just the physical aspects of it, but yeah there was the mental toll that chronic pain would take especially after a traumatic evident like a car accident with your child in the car. That obviously has an impact as well, a negative impact. When there is physical pain that is not resolving. And in fact impairing activities of daily living …
Dr Ali gave evidence that she could not recall a time when the plaintiff’s condition had been completely resolved, although she did note that the plaintiff would only visit her “when she’s in pain or has a problem and so if her physical symptoms had disappeared, it’s not something I would comment on” (at T170.41-43).
In cross-examination, Dr Ali indicated that both physical and psychological factors could exacerbate fibromyalgia. As I will come to later, this evidence is consistent across all of the medical experts.
Dr Ali was also cross-examined in relation to her note-taking practices. It is worth setting out the relevant questions and her answers in full as this evidence is relevant to the defendants’ submissions concerning general damages:
And without stepping you through each one of the notes for expediency, you would have been careful in recording your notes to note if there was a flare-up of fibromyalgia when you saw Ms Maher and also to note what you believed was connected with that flare-up, wouldn't you?---Yes. Sometimes a patient comes and they have a flare-up of their chronic condition which they are managing, but their actual issue for presenting is something completely different. So in that case, whatever the predominant issue is that would be noted, and there may or may not be a comment at the time that there is a current flare-up of the chronic condition, because that is something the patient lives with and it depends on the severity of the flare-up. So whatever the predominant issue is at the time, definitely that is noted. Side issues may or may not be noted at the time.
…
Dr Ali, you said that if it was a predominant reason for a flare-up you would note it. That's correct?---Predominant reason does not mean that other issues become irrelevant. I want to clarify that because sometimes patients with chronic debilitating conditions have actually another issue that they need to discuss. It doesn't mean their pain is less severe because they have some other condition that needs attention at that time. So if it's a side issue, it's still relevant if it's affecting their quality of life
…
… The issue the patient comes with is the issue that's discussed. If there are multiple other things happening in the life of the patient that they are not discussing at that time, it may or may not be noted. Those issues are still there and very real for the patient.
Dr Ali was also cross-examined about the medical certificate she provided to the plaintiff on 5 May 2021 in relation to her reduction in hours and, in particular, whether the plaintiff had told Dr Ali that her reduction in hours had already been decided at the time of the medical consultation. Dr Ali’s answer was, in effect, that her notes indicated that the plaintiff “had been given the okay” to change her hours but that this could have initiated by the employer or by the plaintiff (T177.45-48). In any event, Dr Ali noted that the plaintiff had told her that she had missed 65 hours of work in the three months prior to that consultation.
Dr Ali was also cross-examined about potentially supplying a medical certificate without a consultation. I was not persuaded that this cross-examination had any forensic significance. As Dr Ali’s responses demonstrated, this is not what had occurred. Rather, Dr Ali’s answers indicated that after a consultation, there was a need to change the precise language in a medical certificate to remove a reference to a particular individual but that the medical advice – that the plaintiff was unable to attend work – had not changed and as such an amended medical certificate had been issued. As the medical advice had not changed a further consultation was not necessary. I accept that evidence and reject any suggestion that any of the medical certificates supplied by Dr Ali were done so without an appropriate consultation.
Dr Eaton and Dr Burke
Dr Eaton and Dr Burke gave oral evidence in a concurrent session. Both doctors have similar experience and credentials, which can only be described as extensive. Broadly, they are both experts in occupational medicine and have each practiced for over 40 years. I do not understand either of their expertise to be called into question.
Dr Burke produced four reports for the defendants which are in evidence before me. Those reports are dated 24 January 2019, 11 March 2021, 11 March 2021 and 11 October 2021.
Dr Eaton produced a report for the plaintiff dated 20 January 2021 which is in evidence before me.
Those reports assessed the plaintiff’s condition and her long-term prognosis as a result of the accident. In their oral evidence, neither doctor identified any changes or corrections that were required to their reports.
Both doctors, in their concurrent evidence, agreed that the plaintiff was suffering from chronic fibromyalgia prior to the accident, that this condition was prone to flare ups and that psychological stressors would contribute to flare ups in her condition (T243.1-43).
Both doctors also agreed that the ANU incident would be an event that would have the potential to cause a flare up to the plaintiff’s condition (T244.22-44) and that other stressors such as home-schooling her child or family health issues would also be potential triggers (T245.4-8, 15-18).
Both doctors also agreed that at the time they examined the plaintiff she did not provide any indication that she was considering reducing her work hours (T245.28-31; T246.17). Both doctors also agreed that they would be supportive of the plaintiff undertaking a graduated return to work following a pain management program and with the support of her employer (T246.25-43; T247.1-2).
Dr Eaton’s oral evidence indicated that he had spoken with the plaintiff the week before the hearing and that her psychological and emotional condition had improved (T229.7-17). Despite this improvement, Dr Eaton gave evidence that, in his view, the plaintiff would have some reduced earning capacity into the future and that given the four years since the accident it was unlikely there would be any significant improvement in her chronic pain condition (T230.6-17).
This evidence is supported by Dr Eaton’s report, which had diagnosed that the plaintiff suffered from whiplash associated disorder and a musculoligamentous strain of the cervicothoracic and lumbosacral spine, and an aggravation of pre-existing chronic fibromyalgia/widespread pain syndrome as a result of the accident.
In contrast, Dr Burke gave evidence that in his opinion there was a “reasonable probability” that the plaintiff would be able to work on a full-time basis with periods where she would have to reduce her hours due to her symptoms. In making that assessment, Dr Burke noted that the plaintiff had been working full-time at the times that he performed his assessments (T230.38-44).
Dr Burke’s evidence was that overall, his assessment and that of Dr Eaton were not in significant conflict, and that in effect there was a minor disagreement between them as to the plaintiff’s long-term earning capacity (T231.33-41). Dr Eaton described this as a more significant disagreement.
Dr Allnutt and Dr Cohen
Dr Allnutt is a forensic psychiatrist and Dr Cohen is general psychiatrist with a speciality in psychotherapy. There was again no challenge to either of the experts’ credentials or experience, which again in both cases could only be regarded as extensive.
Dr Allnutt prepared three reports for the plaintiff dated 20 March 2019, 20 May 2020 and 6 October 2021 which were in evidence before me.
Dr Cohen prepared two reports for the defendants dated 23 December 2020 and 21 September 2021 which were in evidence before me.
Both experts indicated that they stood by the opinions contained in their reports as to the plaintiff’s psychological condition. I note that neither Dr Allnutt or Dr Cohen claimed to be experts in the treatment or management of chronic pain conditions.
In their concurrent evidence, both experts supported the proposition that the plaintiff could begin a graduated return to work (T260.1-6).
Dr Allnutt helpfully outlined what, in his expert opinion, that graduated return to work would look like, stating (at T261.23-42):
Well, graduated return to work program, by definition, is generally a - encompasses a reduction in hours, from pre-existing to reduced hours, and she’s already in reduced hours. If she’s showing improvement, or she’s experiencing some clinical symptoms, being - she’s already - in a sense, already involved in a graduated return to work program, if one considers that - you know, she had - she was, I think, previously working full-time. So, it would be, in the sense that, if she’s experiencing improvement in her symptoms, then she is likely ready to begin to gradually increase her hours. But the graduated return to work program is not necessarily - you know, it’s - in a sense it can be seen as a test.
Any graduated return to work program she does engage in would need to be done along with ongoing psychological support, and assessment, and - to see how she copes, as she goes along. And that is because of - because we don’t know whether she’s going to cope. It sounds like she might, but we don’t know. And, secondly, going to the point that was brought up earlier, that mental illness symptoms can fluctuate. So, she’s already in a graduated return to work program, in the sense that she’s working less hours, but she’s in work. And one would then gradually increase those hours, and, at the same time, monitoring her response.
(emphasis added)
Dr Cohen agreed broadly with that approach (T262.1-3). I will consider this description in more detail later in these reasons.
Dr Allnut indicated that he did not change his prognosis that the plaintiff had “some improvement but [her] condition is chronic” and that she would continue to manifest symptoms for the foreseeable future. His evidence did, however, indicate that there was a question as to how long in the future that would be. It is worth setting out his response, and the supplementary comment of Dr Cohen in full:
WITNESS ALLNUTT: No, I don’t change that opinion. The - I suppose the question is - you know, how long is the foreseeable future. But it’s – you know, it’s - she’s probably going to continue, for the next weeks to months, experiencing symptoms.
MR RICHARDS: And, Dr Cohen, quickly - briefly, do you agree?
WITNESS COHEN: Yes, I do agree. I just would also make the comment that she presented as very determined, and engaged in treatment, and I thought that that was a positive prognostic factor.
Professor Champion
Professor Champion is a specialist in rheumatology with musculoskeletal medicine and pharmacology and in pain management broadly. Professor Champion has published approximately 140 articles, many of which relate to pain management. Again, I do not understand the defendants to challenge his expertise within these fields.
Professor Champion produced three reports dated 11 June 2019, 15 June 2020 and 11 October 2021 which were in evidence before me.
By those reports, Professor Champion outlined his assessment of the plaintiff’s physical and mental condition as well as his view as to her expected work prospects. While at the time of writing the first report, the plaintiff was working full time, Professor Champion noted in his third report (which supplemented his earlier reports) the plaintiff had reduced her work hours to 22.5 hours a week (page 120, Plaintiff’s Medical Tender Bundle).
Professor Champion outlined in that report that, in his view, he “would be surprised” if the plaintiff was able to work to the age of 68. Professor Champion also noted that the reduction in work hours would continue in the “short to long term” and that while the plaintiff had indicated that she hoped to return to full-time work, in his view, he could not confirm whether full-time hours would be sustainable long term.
Professor Champion indicated in his oral evidence that he had had regard to the reports prepared by the other medical witnesses, in particular Dr Burke and that he did not wish to make any changes or corrections to any of his reports (T273.25).
Professor Champion also indicated that the difference between his conclusions and those of Dr Burke was caused by a number of matters, the most important being his use of a biopsychosocial assessment, rather than a biomedical assessment (T275.5-11).
In Professor Champions evidence, the biopsychosocial assessment, in at least some scenarios allows for better predictions to be made. For example, in his evidence about a co-authored article that was currently being peer-reviewed that he was the senior author on, Professor Champion indicated that:
… In the multivariate analysis the most important variables are proved to be – and as determinates or long term unemployability were major depressive disorder and antidepressant use. So, the limited biomedical form of assessment does not enable sufficient judgment about the reasons for important outcomes, but say similar results occurred with long term social change to client. And yet, unfortunately, the medicolegal processes are very much orientated towards a narrow biomedical paradigm.
In cross-examination evidence, Professor Champion agreed that the ANU incident could have had a significant impact and caused a flare up of the plaintiff’s fibromyalgia but indicated that there was a “very considerable difference between the physical and psychological impact of the motor vehicle accident and the [ANU incident]” (T280.7-9).
Professor Champion was asked in cross-examination whether the plaintiff had indicated to him that her employer had budgetary constraints prior to the reduction in the plaintiff’s work hours, to which he indicated that he did not recall that fact.
Dr Champion in cross-examination indicated that the plaintiff had raised some personal stressful matters with him, including the deaths of two of her friends, which was not in his report. Dr Champion also indicated that he agreed with the content of his third report, namely that the plaintiff’s functional capacity at home had improved and that the plaintiff appeared to be very reasonable in her reporting to him. As I noted above, I have come to a similar view as to the plaintiff’s oral evidence in this case.
Professor Champion also indicated in cross-examination that the plaintiff’s fibromyalgia was managed prior to the car accident and agreed that since the accident there are other stressors that have contributed to flare ups. Professor Champion importantly noted in his evidence however that, in his assessment, the car accident was “the most important factor in the ongoing … chronic pain related disability” (T283.30-32).
Mr Mifsud
Mr Mifsud is an occupational therapist who assessed the plaintiff and provided a report dated 1 April 2021. That report focused, primarily, on the assistance the plaintiff required/would require in order to manage her injuries. Mr Mifsud also gave oral evidence at the hearing.
Mr Mifsud was asked if any changes needed to be made to his report, and a small typographical error regarding the number of physiotherapy sessions the plaintiff received was corrected.
In addition to seeing the plaintiff prior to preparing his report, Mr Mifsud had a Telehealth assessment with her a couple of days before the hearing. He indicated that in his view (and based on her answers) her mental health and psychosocial symptoms had improved since he had produced his report (at T307.15-27). This accords with the views of some of the other medical experts as outlined above.
Mr Mifsud was cross-examined in relation to his assessment for the plaintiff’s future needs. In that cross-examination, Mr Mifsud conceded that some of his estimates as to the amount of capacity the plaintiff had for various categories of tasks was incorrect.
In particular, Mr Mifsud conceded that his estimate for food preparation was too low (T312.24-26) and that the plaintiff would not require assistance in hanging out clothes as she had given evidence she used a drier (T310.26-28).
Mr Mifsud also indicated that his assessment as to the amount of hours of assistance the plaintiff required for child care was a point-in-time assessment (T312.45-46).
In re-examination, Mr Mifsud indicated that the assessment in his report, that the plaintiff would require over 12 hours of commercial assistance in the future should be revised in light of the plaintiff’s oral evidence at the hearing to between five and seven hours a week (T313.14-22).
There was no similar concession made in re-examination in relation to the figures for past assistance contained in Mr Mifsud’s report.
Differences between the expert witnesses
I note that the parties advanced extensive submissions as to why the Court should prefer their expert witnesses’ evidence over the experts for the other side. I note that, in my view, the oral evidence including the concurrent evidence at the hearing overtook to some extent the earlier medical reports. I will deal with the relevant reports and expert oral evidence outlined above under each head of damages where relevant.
Where there is consensus between the experts’ oral evidence, I have taken that consensus into account in assessing the heads of damage in light of the plaintiff’s oral evidence which provided an up-to-date assessment of her actual injuries. For example, as I have discussed above, the plaintiff’s evidence at the hearing was that her health condition had improved (see, for example, [42]).
Where there is conflict between the medical expert evidence, I have preferred the evidence of Professor Champion who assessed the plaintiff on the basis of a biopsychosocial assessment. In particular, I prefer Professor Champion’s view as to the impact of the car accident on the plaintiff’s fibromyalgia over Dr Burke as Professor Champion’s evidence in that regard was consistent with the evidence of the plaintiff and Dr Ali (which I accept) as to when the plaintiff began to experience flare ups and symptoms.
Other Evidence
Also in evidence before me was a report dated 18 November 2018 from Dr Endrey-Walder, an Orthopaedic Surgeon. Dr Endrey-Walder was not required for cross-examination. In his report, Dr Endrey-Walder assessed the plaintiff’s physical condition and assessed whether those injuries were referable to the accident.
Both the plaintiff and the defendants also tendered various bundles of documents containing relevant medical and financial records and documents.
I have had regard to that documentary evidence.
Quantum of damages
As outlined above, there are four areas of disagreement between the parties. I will consider each of those areas in turn. Before doing so, I will briefly discuss the agreed costs for past medical expenses and the ANU incident.
Past Medical Expenses
In relation to past out of pocket expenses, the parties agreed on an amount of $14,111.73. The parties agreed on an interest amount of $1,137.29 as at the date of submissions earlier this year.
Given the date of judgment, it is appropriate that the interest amount is increased in line with the agreed method for assessing this interest (see plaintiff’s reply submissions at [29]) to $1,421.61 ($6,318.28 (the amount the plaintiff was out of pocket) × 0.5 × 9% × 5 years).
I will address the matter of interest generally at the end of these reasons. However, for now, it is sufficient to note that I propose to adopt interest calculations based on a 5-year period which is approximately the period of time from the accident to judgment hand down. I will, however, provide leave for the parties to file submissions on that issue if any party seeks a different calculation as the parties’ submissions only outlined the proposed method as at the date of submissions earlier this year.
This means that the total award for past out-of-pocket expenses including interest will be $15,533 (rounded to the nearest dollar).
The ANU Incident
Before turning to the four issues in dispute between the parties, it is also convenient to address one overarching issue. Namely, what appeared to be a submission from the plaintiff that but for the accident the plaintiff would not have been employed by the ANU and the ANU incident would not have occurred. The submission appears to suggest (but did not clearly state) that the defendants are also liable in negligence for any harm suffered by the plaintiff that resulted from the ANU incident.
For the reasons that follow, to the extent that any such submission was advanced, I do not accept that submission.
The submission is summarised in the plaintiff’s reply submissions at [17] where the plaintiff submitted that:
The Defendants submissions regarding her employment at the ANU is misconceived. The Plaintiff repeats paragraph [77] of her submissions dated 12 November 2021, that she would not have worked at the ANU but for the motor vehicle accident.
This submission appears to respond to and reject the defendants’ submission that “any injury, loss or damage caused by the [ANU incident] cannot be sheeted home to the defendant in these proceedings” (defendants’ written submissions at [14]).
The defendants submitted that the car accident was not a necessary condition of the ANU incident (as required by s 45(a) of the Civil Law (Wrongs) Act 2002 (ACT)), but rather the ANU incident was an “independent, deliberate and possibly criminal act committed by a third party”. In support of that submission, the defendants referred to the case of DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 (DNM Mining) at [43] where Giles JA (Santow JA and Windeyer J agreeing) stated:
It is well established that it would not avail the respondent to suggest that, but for the mining accident, his life may not have taken the course by which he was driving at a time and place coincident with the cow (see Faulkner v Keffalinos at 86; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 516; South Australian Asset Management Corporation v York Montague Ltd (1997) AC 191 at 213). …
While I accept that the plaintiff in her evidence indicated that “if I didn’t have the car accident, I would have stayed contracting, I wouldn’t have gone to the ANU” (T297.23-24), that does not mean that the car accident can be viewed as a necessary condition of the ANU incident. In accordance with the approach outlined in DNM Mining, to the extent that the plaintiff submits that the defendants are liable for any damages resulting from the ANU incident, I do not accept the plaintiff’s submission.
The ANU incident was a shocking event, and one that has had a clear and ongoing impact on the plaintiff, however I accept the defendants’ submission that it was an independent event from the car accident which is the subject of these proceedings.
In short, any blame (if blame could be established) for the ANU incident should fall on either the ANU or the staff member(s) involved, not the defendants to this proceeding.
The result of those findings is that any injuries resulting from the ANU incident must not be included in the damages assessment in this proceeding. As will become apparent, this makes the damages assessment in this case more complicated than would otherwise be the case.
General Damages
The plaintiff submitted that, considering the plaintiff’s injuries, the appropriate award for general damages is $180,000. The plaintiff further claims interest on half of this amount at a rate of 2%.
In support of that submission, the plaintiff pointed to the evidence of the various medical experts and the treating notes which indicated that the plaintiff will likely suffer injuries caused by the accident into the future. These injuries include her chronic fibromyalgia (which, as discussed above, is worse during a flare up), the loss of the range of motion in her neck and back, the plaintiff’s exhaustion/fatigue, the plaintiff’s TMJ pain, a significant loss of grip strength in her left hand and ongoing mental health conditions including residual post-traumatic stress disorder symptoms and depression and anxiety.
The plaintiff referred me to three cases which counsel submitted support the plaintiff’s proposed general damages award.
First, counsel referred me to Ryrie v Tanner (No 2) [2020] ACTSC 104 (Ryrie). In that case the plaintiff suffered lower back injuries which, on the evidence, resulted in the possible need for fusion surgery to alleviate her ongoing pain. Murrell CJ found that the surgery would significantly reduce the pain, but the plaintiff would suffer ongoing discomfort and reduced spinal movement as a result of her injuries, especially as the efficacy of the surgery would reduce over time. The plaintiff was awarded $160,000 in general damages. The plaintiff in this matter submitted that her “injuries, symptoms, and disability are worse than the plaintiff [in Ryrie]”.
Second, counsel referred me to Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207 (Rhodin). In that case, the plaintiff suffered injuries to her left arm after she slipped on ice while working. Collier J found that this accident led to the plaintiff suffering a chronic pain condition in her left arm. This condition caused the plaintiff to suffer a decline in the quality of her life, have ongoing pain in her left arm and suffer from depression as a result of the injury. Collier J awarded $150,000 for general damages. The plaintiff in this case submitted that her injuries are more significant than the injuries suffered in Rhodin.
The final case I was referred to by the plaintiff was Lewis v Woolworths Limited [2018] ACTSC 200 (Lewis). In that case the plaintiff was awarded $170,000 in general damages for injuries suffered in a workplace accident. Of this amount, $60,000 was referable to past injury and $110,00 for future injury: Lewis at [82]. Mossop J found that the accident caused the plaintiff a “significant degree of disability initially” and that she continued to suffer pain at the time of the hearing. That pain, while not at a level that prevented the plaintiff from having a superficially normal life, had affected her studies and placed limitations on the work she could perform. Mossop J found that there was some likelihood that the plaintiff would require spinal decompression and fusion surgery which he noted was “significant in terms of general damages”. The plaintiff submitted that her injuries were worse than those of the plaintiff in Lewis.
In oral submissions, counsel for the defendants submitted that a more appropriate figure for general damages was between $70,000 and $100,000 (see T396.12-14). I did not understand the defendants to submit that the plaintiff’s injuries had been exaggerated in her evidence. Rather, the defendants submitted that, first, the long-term impacts of the plaintiff’s injuries were less serious than counsel for the plaintiff had submitted, and, second, that her injuries had, in part, been caused by non-compensable events. Accordingly, the defendants submitted a lower award for general damages was warranted.
The defendants submitted that the medical evidence suggests that the plaintiff suffered a soft-tissue spinal injury with “aggravation of pre-existing degenerative change, and an exacerbation of previously quiescent [post-traumatic stress disorder]”.
In particular, the defendants submitted that the plaintiff had significant pre-existing conditions that affected her spinal region as a result of her fibromyalgia (defendants’ submissions at [36]). The defendants submitted that if the plaintiff is experiencing a continued aggravation of her symptoms but submitted that this aggravation is at least partly attributable to the incident at the ANU as well as “a number of other non-accident-related life stressors”.
I take that submission to relate to the stressors referred to by the plaintiff in her evidence, including her mother’s and brother’s health conditions, her travel to assist in caring for them, and the stress caused by the need to home school her daughter during the pandemic.
I have already set out the evidence given by the various medical experts at the hearing. That evidence supported the defendants’ submission that psychological and emotional stressors could cause a flare up of the plaintiff’s fibromyalgia.
The defendants further submitted that Dr Ali’s medical records support their submission that the flare ups in the plaintiff’s fibromyalgia were caused by non-compensable events. In particular, the defendants submitted that those records only referred to a fibromyalgia flare up on two occasions (5 July 2019 and 27 August 2019).
The 5 July 2019 record was accompanied by a notation that referred to the ongoing issues at the ANU, and the 27 August 2019 record stated:
Recent series of stressful events. Started new job then Mum fractured hip so patient resigned and went to Newcastle with daughter to help Mum manage her brother, who has a disability and is cared for at home.
The defendants correctly submitted that neither notation referred to the accident the subject of these proceedings.
I do not accept the defendants’ overall submission, however, as it does not accord with the oral evidence of Dr Ali or the plaintiff. In relation to the appropriate treatment of medical notes by trial judges, I note the warnings given in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. In those cases, Basten JA outlined the reasons suggesting that caution should be taken in relation to clinical notes, noting that they:
(a) are usually taken in furtherance of a purpose different to that for which they are used in proceedings;
(b) do not contain the questions of the health professional that elucidated the patient’s reply;
(c) are likely to be only a summary rather than a verbatim recording; and
(d) are affected by a range of factors, including fluency of language and the patient’s understanding of the purpose of the questioning.
Similar to the approach taken by McWilliam AJ in Austen v Tran [2022] ACTSC 114 at [8], “a cautious approach has been taken not to elevate clinical records to a higher status factually than other evidence given in the proceeding”. In this case, that approach tends against the submission advanced by counsel for the defendants. While it is apparent that Dr Ali’s treating records do not record many instances of fibromyalgia symptoms, the doctor’s oral evidence (and that of the plaintiff) was clear that the plaintiff has suffered from continuing periods of symptoms since the accident.
I also note that Dr Ali gave oral evidence about her notetaking practices. I have outlined that evidence at [54] above. It is worth noting that, as that evidence makes clear, Dr Ali did not always record chronic conditions in her notes. Rather, the notes reflect the primary reason the plaintiff was attending a GP. In my view, Dr Ali’s evidence on that practice was not shaken in cross-examination.
Counsel for the defendants referred me to three cases that the defendants submitted were relevant to the assessment of general damages in this case.
The first case was Carmen Utting v Ben Clarke & Insurance Australia Limited T/A NRMA Insurance [2016] ACTSC 168 (Utting). In that case the primary judge found that the plaintiff had suffered three years of significant pain and had to amend her work practices as a result of injuries from a motor vehicle accident. The primary judge found, however, that there would be some gradual improvement in the plaintiff’s symptoms over a 10-year period. The primary judge awarded $75,000 for general damages, an award that was upheld on appeal: Utting v Clarke [2017] ACTCA 22.
The second case was Cressy v Miloriad [2016] ACTSC 303 (Cressy). In that case the plaintiff was involved in a four-car collision in 2011 after which she experienced stiffness and pain in her neck, hips, back, knee and legs. There was evidence that the plaintiff had a pre-existing hip condition which would have required surgery at some stage, however the condition was asymptomatic at the time of the accident. The defendants submitted that this was similar to the facts of this case, where a pre-existing condition became symptomatic following a car accident. In Cressy, Mossop J awarded $80,000 in general damages.
The third case was Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66 (Massouras). In that case a woman in her early forties was injured due to a lift malfunction. She suffered neck and shoulder pain and headaches for six weeks after the accident, and roughly four years later learned that she had a disc protrusion which required spinal fusion surgery. Burns J awarded $90,000 for general damages. His Honour stated at [189] that:
I accept that Mrs Pattinson suffered a serious injury which required major surgery in the form of a spinal fusion of C5/6. She continues to experience recurrent neck pain and headaches. There is a risk that she may require further surgery, but that risk does not rise so high as to be a probability. Mrs Pattinson continues to experience a mild emotional reaction to her injury. It is not important whether it be characterised as an Adjustment Disorder or as a normal emotional response. The effect on Mrs Pattinson’s life from her injury is moderately severe …
That decision was subject to an appeal, but no challenge was made to the amount of general damages awarded by his Honour in respect of Mrs Pattinson: Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33 (Shipton).
The plaintiff correctly submitted that some of the cases relied on by the defendants can be distinguished from the present matter. In particular, there is not, in my view, sufficient evidence before me that would support a finding that the plaintiff’s physical injuries will gradually improve over a fixed time period as there was in Utting. Rather, the overall evidence of the experts is that the plaintiff is suffering from chronic conditions and that there is unlikely to be any significant improvement in her condition.
The defendants submitted that in this case, the plaintiff does not require surgery and, despite her injuries, continues to work as well as engage in community activities. In oral submissions, counsel for the defendants accepted that damages assessments turn on the facts of the particular case, but submitted that in terms of ranges, the decision of Massouras was a useful starting point in this case given that the plaintiff will not require surgery.
In response, the plaintiff submitted that the plaintiff will have long-lasting injuries as a result of the accident that will not be correctable with surgery. This factor, the plaintiff submitted, would tend to increase the amount of general damages that would be appropriate (T351.40-43).
I accept the defendants’ submission that the lack of surgery is a distinguishing factor in the present case. I also accept that the lack of a need for surgery is a significant factor, however it is not the only consideration to be taken into account in determining general damages. In particular, I accept the plaintiff’s submission that, on the evidence, the plaintiff will likely continue to suffer lasting physical and psychological injuries into the future.
I note that the assessment of general damages relies heavily on the impression made by the plaintiff: Tsueneaki v Stewart [2013] ACTCA 34 at [30]. As I discussed above, I found the plaintiff to be an impressive witness who did not seek to exaggerate her condition. It is apparent from her evidence that the accident has had a significant impact on her enjoyment of life and has caused her significant pain and suffering.
I broadly accept the plaintiff’s submissions concerning the extent of the injuries in the present case. I do however also accept the defendants’ submission that some of the flare ups in the plaintiff’s condition were likely caused by other stressors, in particular the incident at the ANU which can only be described as a horrific event. So much is apparent from the evidence of the medical experts and the plaintiff.
I do not think it is possible, nor do I think it is desirable, to attribute an exact percentage of the flare ups to other causes. In my view, it is apparent from the plaintiff’s evidence in particular that the accident caused the plaintiff’s underlying fibromyalgia to become symptomatic and led to a worsening in her mental health conditions. It is clear that the plaintiff will continue to suffer flare ups in the future.
In my view, taking into account the above matters the appropriate general damages award is $120,000 which, as is often the case, falls between the two positions advanced by the parties. Both the plaintiff and the defendants calculated interest on 50% their respective proposed amount at a rate of 2%. I will take the same approach. This means that interest of $6,000 (2% × $60,000 × 5 years) will be awarded for general damages.
Past Domestic Assistance
In the original written submissions, the plaintiff claimed a total of $124,426 for past domestic assistance. This claim was said to be supported by the evidence of Mr Mifsud who, in his report dated 1 April 2021, set out the number of hours of domestic assistance the plaintiff had required from 16 October 2017 to 25 October 2021 (plaintiff’s written submissions at [98]-[101]).
The plaintiff originally submitted that the figures in Mr Mifsud’s report should be used as the starting point in assessing past domestic assistance but that they should be revised down in light of Mr Mifsud’s answer in re-examination. These concessions were made in response to questions in cross-examination relating to the evidence advanced by the plaintiff herself during the hearing as to what tasks she could perform.
For convenience I have set out [99] of the plaintiff’s written submissions below:
In his report at Exhibit 1 (Plaintiff’s MB) 171 dated 1 April 2021 (from a four-hour assessment of the Plaintiff on 21 November 2020), Mr Mifsud opined that the Plaintiff required the following domestic assistance:
a. Period B - Between 16 October 2017 and 31 January 2019 (Between the accident and until terminated by the ANU – January 2019) – 14.03 hours per week (21.52 – 7.5 hours) (Exhibit 1 (Plaintiff’s MB) 208 at Pt 2 but with concession by Mr Mifsud at TP 313 at L 20 – hours reduced by 7.5 hours);
b. Period C - Between 1 February 2019 and 21 November 2020 (After terminated by the ANU) – 14.03 hours per week (21.52 – 7.5 hours) (Exhibit 1 (Plaintiff’s MB) 208 at Pt 2 but with concession by Mr Mifsud at TP 313 at L 20 – hours reduced by 7.5 hours);
c. Period D - Between 21 November 2020 and 25 October 2021 – 6 hours per week (Exhibit 1 (Plaintiff’s MB) 208 at Pt 2 but with concession by Mr Mifsud at TP 313 at L 20 – five to seven hours, say six hours).).
It is worth noting that the concession referred to by the plaintiff was in regard to future domestic assistance only. This is clearly shown by the full answer of Mr Mifsud that the plaintiff referred to (at T313.14-22). I have set out that answer and the question put to Mr Mifsud below:
MR RICHARDS: Mr Mifsud, having answered the questions and considered what has just been put to you, do you alter your opinion as to the number of hours that it's reasonable for the plaintiff to require in the future, and if so, by how much?---I would alter - given the new information, I would alter the future commercial expense number down and I would probably sit it, depending on what her living situation is like, what the house is like, and there are a number of factors that would play into it, I would say that it would be reasonable for her to receive between and five and seven hours a week of domestic assistance.
(emphasis added)
How precisely Mr Mifsud’s answer regarding future domestic assistance supported a reduction in his estimates for past assistance by 7.5 hours for each of the relevant periods was not explained by the plaintiff in either written or oral submissions.
The plaintiff submitted that the hours proposed in the submissions could be readily multiplied by the rate for domestic assistance contained in National Disability Insurance Scheme tables (NDIS tables) that applied for each of the respective time periods. Those rates were in evidence before me.
Mr Mifsud gave evidence at the hearing concerning the NDIS tables (T304.22), and I do not understand their accuracy to be challenged by the defendants. The defendants did submit, however, that a lower hourly rate of between $35-45 would be more appropriate and would align with previous decisions of this Court.
The plaintiff submitted that much of Mr Mifsud’s evidence was unchallenged by the defendants and should be accepted by the Court referring to the principles in Brown v Dunne. In particular, the plaintiff submitted that the defendants did not tender any evidence from an occupational therapist which rebutted Mr Mifsud’s opinion.
In light of comments made during the oral closing submissions, the plaintiff supplied a further revised calculation for past domestic assistance, submitting that a 50% reduction should be applied to the original calculation (set out at [145]). The new figure for past assistance now claimed by the plaintiff is $62,213 which the plaintiff submits is at the very bottom of a reasonable range. The mathematical basis for the 50% reduction was not explained in the written submissions.
The defendants submitted that $5,000 was appropriate for past domestic assistance. This figure, the defendants noted, was the same as that originally contained in the plaintiff’s statement of claim for past domestic assistance. The defendants correctly accepted, however, that the figure in the statement of claim was a provisional figure.
The defendants submitted that the Court should consider the actual assistance received by the plaintiff rather than what a medical professional deemed was “necessary”. In particular, the defendants referred to comments made by Elkaim J in Benning v Richardson [2021] ACTSC 34 (Benning) where his Honour said at [111]:
I have some difficulty with [the plaintiff’s medicolegal occupational therapist’s] recommendations for past assistance because the task I have is to assess the actual hours that were devoted to such assistance rather than the hours that were medically required.
(emphasis added)
The defendants submitted that the evidence from the plaintiff as to the actual assistance that she has received since the accident was limited to some occasional assistance from her daughter in terms of vacuuming and putting away the dishes and a friend helping watch her daughter on a few occasions.
In cross-examination, the plaintiff was asked by counsel for the defendants about the domestic assistance she received following the accident. For convenience, those answers are set out in full below:
MR ONITIRI: Yes. Ms Maher, you've given evidence about your daughter providing you with some assistance following the motor vehicle accident?--- Over the last four years? Yes?---Yes.
She was four years old at the time of the accident?---She was indeed.
And she's clearly quite capable having, on your account, given some help. You say that's under your supervision?---Yes. She holds the vacuum stick and unpacks the cutlery dish from the dishwasher.
And some of that, it would be fair to characterise it as her doing some housework around the house as part of her contribution?---I believe that's what I suggested.
…
I'll rephrase it. You gave some evidence yesterday about people looking after your daughter when you had medical appointments?---Yes.
Other than that assistance, you haven't required any assistance with child care, have you?---I have paid babysitters to look after my daughter for certain things, yes.
…
So is it fair to say when you've required assistance it's been when you've had to be somewhere for an appointment, not because you can't look after your daughter?---That's right. I have on occasions had a neighbour that came and took my daughter for the day on a particular day when I was incredibly unwell, and that's just sort of happened organically as things have unfolded.
And that's been, what, one or two days?---I think so.
The defendants also referred to the Court of Appeal decision in Shipton, submitting that in that case awards for domestic assistance were reduced where the facts relied on in the expert reports were contradicted by the evidence of the plaintiff.
In my view, the position in Shipton is slightly more complicated than adverted to in the defendants’ submissions. First, in that case the primary judge had limited the admissibility of the statements made by the plaintiff to the expert: Shipton [201], [219]. No such objection was advanced by the defendants in this case. Second, the plaintiff in Shipton had given oral evidence that was inconsistent with the position in the expert reports: see Shipton at [219]. In this case, while the plaintiff’s evidence, as I will come to, does not support the large claim put forward by the plaintiff’s counsel, the plaintiff’s answers in examination in chief and cross-examination were not inconsistent with the facts underpinning Mr Mifsud’s original report.
To the contrary, the evidence of the plaintiff was largely consistent (with the facts underpinning Mr Mifsud’s estimates albeit with a few additional concessions by the plaintiff about her capabilities at the relevant time). Nevertheless, I accept the defendants’ submission that the ultimate issue for the Court is what assistance the plaintiff actually received.
Ultimately, the defendants submitted that there was no evidence to support the plaintiff’s claim for either $124,426 or $62,213 and that the Court should draw a Jones v Dunkel inference from the fact that Ms Trudy Horn, being the person mentioned in the statement of particulars as having provided the relevant domestic assistance along with the plaintiff’s daughter, was not called to give evidence.
The plaintiff in the reply submissions submitted that the defendants are not entitled to a Jones v Dunkel inference as the defendants “did not put to the Plaintiff that she did not receive assistance from Ms Horne or from the Plaintiff’s daughter …”.
As is apparent from the sections from the transcript extracted above, counsel for the defendants did question the plaintiff concerning the amount of assistance she received from her friend and her daughter. I do not take the defendants to be submitting that no assistance was provided, merely that the amount of assistance provided to the plaintiff was less than the amount of assistance Mr Mifsud indicated in his evidence that he thought the plaintiff would have required over that period.
In my view is not appropriate to draw a Jones v Dunkel inference that Ms Horn’s evidence would not have assisted the plaintiff’s case. It is not required in circumstances where the plaintiff’s evidence does not rise to a level to support the number of hours of past domestic assistance estimated in Mr Mifsud’s report or, to the extent his oral evidence supported a 7.5 hour reduction in those figures, those revised figures. Nor does the evidence of the plaintiff support the claim for 50% of those estimates.
Instead, what is apparent from the plaintiff’s oral evidence is that the plaintiff received some assistance from her daughter and her friend. This assistance was of the form of some limited childcare assistance, as well as assistance with various household chores such as vacuuming and stacking the dishwasher.
In my view, I should prefer the plaintiff’s evidence concerning the amount and type of assistance that she required during the relevant period, over the estimates found in Mr Mifsud’s report.
This is so for two reasons. First, it became apparent in Mr Mifsud’s cross-examination that at least some of the assumptions underlying his calculations for past assistance were incorrect, in that the plaintiff had been able to perform some of the tasks that he claimed she required assistance for. As I have already explained, in his re-examination Mr Mifsud did not discuss past assistance. In my view, Mr Mifsud’s evidence does not rise above an assessment of what he estimated the plaintiff’s needs to be.
This is not a critique of the way Mr Mifsud conducted his examination of the plaintiff nor a critique of the way the plaintiff answered his questions. Rather, it demonstrates the inexact science in making medicolegal estimates of the amount of assistance required.
Second, as outlined by Elkaim J in Benning, the question I must assess in relation to past domestic assistance is the amount of assistance the plaintiff actually received, rather than the assistance that may have been recommended by an expert. It should be noted that the purpose of damages are to place the plaintiff in the position she would have been in but for the accident, not to provide her with a windfall gain for assistance that she never actually received.
In light of that finding, it is not necessary to discuss the evidence of Mr Mifsud in relation to past assistance further.
In my view, the plaintiff’s evidence does not permit an exact calculation of the number of hours of assistance the plaintiff received. In particular, there was no evidence from the plaintiff as to the precise amount of assistance she required over the relevant period.
In relation to the childcare assistance, the defendants submitted that this assistance did not relate to the injuries sustained from the accident. Rather, they submitted that “the child minding appears to have been for treatment unrelated to any compensable injuries”. I do not accept that submission.
Counsel for the defendants cross-examined the plaintiff regarding the childcare assistance provided by her friend. The plaintiff’s responses to those questions clearly indicated that there were days (likely in the range of 1-2 days over the four-year period) where she was feeling very unwell and required assistance to care for her child. In light of that evidence, I am prepared to find, on the balance of probabilities, that some of the hours of childcare assistance the plaintiff received are compensable.
I note, in particular, that the plaintiff made clear concessions where the childcare assistance was for unrelated medical appointments (see T291-292). Despite those concessions, the plaintiff maintained that there were 1-2 days of assistance referable to the accident. In light of my findings concerning the plaintiff’s credibility, I see no reason to not accept that evidence.
The defendants’ proposed figure aligns with the plaintiff receiving approximately 100 hours of assistance over four years (or roughly one hour a fortnight). Based on the plaintiff’s evidence, I think the defendants’ proposed calculation for past domestic assistance is probably at a lower end of an appropriate buffer.
In my view, I should therefore award slightly more than the defendants’ proposed figure to account for periods where the plaintiff likely required more than one hour a fortnight of assistance and for the childcare assistance she received.
Having regard to the evidence of the plaintiff as to the assistance she actually received over the period, in my view, the appropriate award for past domestic assistance is $8,000 including interest.
Future Domestic Assistance
In relation to future domestic assistance, the plaintiff revised the claim to $159,109 in reply submissions (at [7]). This reflected a 50% reduction on the amount originally contained in her written submissions. Again, in a similar manner to the approach to past assistance, the precise rationale underpinning the 50% reduction was not explained.
The way that the plaintiff arrived at the original figure was set out in the written submissions at [103]-[104].
Relevantly, the plaintiff’s original calculation relied on the oral evidence of Mr Mifsud (in particular his comment in re-examination that I have set out above at [93]) that the plaintiff will require 5-7 hours of assistance per week for the rest of her life (estimated at 38 years and reduced to 30 years in accordance with the approach taken in Pidcock v Milosis [2019] ACTSC 209 at [106] (Pidcock)).
In my view, it is appropriate to reduce the assistance to a 30-year period in accordance with the approach taken in Pidcock, although for reasons I will explain I do not accept the plaintiff’s proposed calculation.
Using this estimate, the plaintiff calculated the assistance at 6 hours per week (in the middle of the range). This figure was itself a reduction from Mr Mifsud’s original calculation contained in his report dated 1 April 2021. In that report, Mr Mifsud estimated that the plaintiff would require 12 hours and 27 minutes of paid assistance each week.
It is worth discussing briefly how Mr Mifsud calculated his original figure which can be found in his report of 1 April 2021. This is because it is that original figure that underpins the plaintiff’s most recent revised figure.
Mr Mifsud outlined his method for calculating the number of hours of domestic assistance needed in his report at pages 27-28. In short, Mr Mifsud relied on data from the 2006 Australian Bureau of Statistics Time Use Survey outlining the number of hours that men and women on average spend on domestic tasks each week. These hours were added together to create a “total minutes per task” figure for various categories of domestic tasks. This approach seems to assume that households are made up of one woman and one man performing domestic tasks, although that was not explained in the report.
It is worth noting that there is no evidence before me that adding these figures together produces the amount of housework of an “average” household or that the plaintiff’s household is equivalent to this “average” household.
Based on responses from the plaintiff as to what tasks she could (and could not) perform at different times, Mr Mifsud then estimated what percentage of each category of tasks the plaintiff could perform. There is no clear explanation in Mr Mifsud’s report or in his oral evidence as to how he reached the particular percentage figures for each category.
By multiplying these estimated percentages by the ”total minutes per task” figure, Mr Mifsud then calculated how many hours a week the plaintiff spent on each respective task. By taking the difference between the Time Use Survey figure and this calculation, Mr Mifsud estimated how many hours per week of assistance the plaintiff would require in the future, arriving at an original figure of 12 hours and 27 minutes a week.
Counsel for the defendants took Mr Mifsud to several matters in cross-examination. These matters included the evidence of the plaintiff concerning her use of a dryer rather than hanging out clothes (see T310.19-32) and Mr Mifsud’s calculation of the percentage completed for food preparation (see T312.10-26). Mr Mifsud was also cross-examined regarding his estimate of the plaintiff’s need for childcare assistance (T312.30-47).
Mr Mifsud conceded that his percentage estimates of the amount of work completed for the “food preparation” category may have been low in his original table.
In re-examination, Mr Mifsud indicated that an estimate of between 5 and 7 hours of assistance a week would be a better figure.
There was no explanation underpinning Mr Mifsud’s revised estimate of 5-7 hours, nor was any clear basis provided in either set of the plaintiff’s written submissions to support the figure. Instead, the plaintiff simply relied on that assessment to claim 6 hours per week for future assistance which was then reduced by 50% in the reply submissions.
I note that expert evidence is admissible only where (inter alia) there is some “demonstration of examination of the scientific or other intellectual basis of the conclusion reached” by the expert: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85]. Refshauge J expressly followed that approach in R v WR (No 3) [2010] ACTSC 89 at [47]. Such an approach is necessary to establish that the opinion advanced by the expert is based on their specialised training, study or experience: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [32], [37]; SLS v The Queen [2014] VSCA 31; 42 VR 64 at [212]; White v Logen Pty Ltd as Trustee for Byrn Family Trust [2014] NSWCA 159 at [56].
In my view, there was no explained process of reasoning that supports the revised estimate put forward by Mr Mifsud in his oral evidence or the proposed 50% reduction of that estimate. Accordingly, in my view that approach should be rejected. Independent to that reason for rejecting the plaintiff’s proposed approach, in my view, and in accordance with the approach of Elkaim J in Benning, I should again prefer the evidence of the plaintiff as to the assistance she has required to date where that evidence conflicts with a medical expert’s estimate as to the needs of the plaintiff in the future.
The defendants submitted that the appropriate starting point for future assistance was $36,330 which they calculated on the following basis:
At most an allowance of one-hour per week for a further 30 years would be appropriate, which at $35 per hour the rate commonly adopted by this court in such matters, would amount to an award of $36,330 (applying the necessary 3% discount). Such an award would reflect the minimal assistance actually likely to be required and that attributable to the subject accident as opposed to the ANU incident and other past or future aggravating events.
The defendants then submitted that this figure should be reduced by 30% to account for vicissitudes. I will discuss this submission further later in these reasons.
The defendants submitted that their figure better accounted for the plaintiff’s evidence as to what assistance she actually required as opposed to the “Rolls-Royce standard” that they submitted underpinned Mr Mifsud’s assessment: see Benning at [116]. The core of the defendants’ submission effectively seems to be that given the plaintiff’s current requirements, the three hours a week claimed for future assistance is excessive to the plaintiff’s demonstrated needs. For the reasons that follow, I accept that submission.
In my view, the evidence as to the assistance the plaintiff currently requires does not support the plaintiff’s claim for three hours of ongoing assistance in the future. Instead, in my view, the plaintiff will require between one and three hours of domestic assistance a week in the future, depending on whether the plaintiff is experiencing a flare up in her underlying conditions.
In Oliver the primary judge had, in deciding the appropriate buffer, factored into the assessment, the amount of damages that would have been payable for a specified loss of earning capacity: this matter was discussed by the Court of Appeal see [36]. That approach was not criticised by the Court of Appeal. It is apparent from the Court of Appeal judgment, that such estimates may be used as one factor in the buffer but are not determinative of the issue.
Applying the principles in Oliver, the plaintiff submitted that a mathematical approach to calculating future economic loss is available in this case. For reasons I will come to, I do not accept that submission.
Plaintiff’s counsel submitted that the plaintiff is presently only working three days a week, and these reduced hours are indicative of her future lost earning capacity. In support of this submission the plaintiff relied on Professor Champion’s reports, which it was submitted demonstrated that the accident had directly and significantly impacted the plaintiff’s capacity to earn income. The plaintiff noted that in those reports Professor Champion had indicated that it was unlikely the plaintiff would work until 68 years of age and that as such her claim was a conservative one.
The plaintiff submitted that a simple comparison between her current net income and her net income pre-accident would account for this lost capacity and submitted that the plaintiff should be awarded $646 per week for 17 years (until she reaches 68 years of age) discounted by 15% for vicissitudes. Applying the relevant 3% multiplier, and accounting for vicissitudes, the plaintiff therefore clamed $382,887 for future economic loss.
I pause to note that the plaintiff’s proposed approach may lead to the same error I discussed above, in that it compares earnings directly rather than focusing on loss of capacity first and then assessing the economic value of that lost capacity.
However, for the reasons that follow, there is no need to assess what the actual economic value of a 40% reduction in earning capacity of the plaintiff is as, in my view, this is a case where damages for future economic loss should be assessed as a buffer. In the result there is no need to consider that question further.
The defendants submitted that damages for future economic loss should instead be awarded as a buffer for the following reasons. First, that the plaintiff’s work hours were reduced (at least in part) on account of her employer’s budgetary constraints. Second, the plaintiff’s evidence indicated that if she was offered full-time work she would “do [her] absolute best to push through regardless of [her] symptoms”. Third, that there was some possibility the plaintiff’s earning capacity would increase if she completed a pain management course. Fourth, that the ANU incident has had at least some impact on the plaintiff’s ability to work and this cannot be easily disentangled from the impact from the car accident. I interpolate to note the evidence of Professor Champion that the ANU incident was significant, but that the car accident was of greater significance. That also accords with the evidence of the plaintiff that she suffered from symptoms and flare ups following the car accident. Fifth, that while the plaintiff may require some days off each year to manage her health conditions, it is not possible to precisely calculate how many days a year will be needed.
Ultimately, the defendants submitted that a buffer of $50,000 for future economic loss plus $5,500 for superannuation was appropriate (roughly equivalent to six months of the plaintiff’s earnings pre-accident). The defendants further submitted that this buffer should be reduced by 30% for vicissitudes.
I accept the defendants’ submission that a buffer is a more appropriate approach to take to future economic loss in this proceeding. In my view, consistent with the approach I have taken above in relation to past economic loss, it is not possible to take a purely mathematical approach to future economic loss.
In particular, I accept the defendants’ submission that there are multiple contributing causes to the plaintiff’s current reduction in work hours. Given that finding, in my view, it is not possible to say on the balance of probabilities that the plaintiff has a precise fixed and ongoing reduced earning capacity which is necessary to perform the plaintiff’s proposed calculation.
In particular, I do not accept that the evidence supports the plaintiff’s counsel’s submission that the three days a week the plaintiff currently works reflects her current, and future, earning capacity.
On the plaintiff’s evidence, it is apparent that at least part of the reason she is currently only working three days a week is due to her employer’s budgetary constraints. For example, in cross examination the plaintiff was questioned extensively about discussions she had with her employer when negotiating her contract for work after June 2021. This evidence relevantly included the following discussion:
MR ONITIRI: … [From the e]nd of 2020 to you executing the agreement in March [2021], that's when the discussions occurred. During those discussions it was made very clear to you by NAATI that after June 2021 there would not be fulltime work available to you because of budgetary constraints?---In the discussions that we had during those periods we were talking about funding arrangements. We were talking about the business – having to put the business case to the CEO to consider my ongoing employer and what that might look like, how that would work for me. Of course, we discussed budgetary restraints around labour where HR – there was certainly not an occasion where NAATI came to me and said we're going to cut your hours, here sign this. It was a much more involved process than that. And I would say that as a result of – as things have unfolded, like every business, we've got constraints with budgets. And so now there is part-time work available and I'm working part-time.
So those particulars are wrong. There's not fulltime work still available?---No, there's not fulltime work available now.
Ms Maher, one final question on that, when you executed the contract on 29 March, you knew then that there wouldn't be fulltime work available because of budgetary constraints after June 2021, didn't you?---Again, I believe that the decision – well the conversations around were much more nuance than that in terms of it was a mutual agreement. And again, from March through to the end of June, I continued to work fulltime. …
The defendants submitted that the Court should draw a Jones v Dunkel inference from the fact that the plaintiff did not call evidence from her employer as to why her hours were reduced. In my view, in circumstances where the plaintiff has given clear evidence that there were multiple contributing factors to her reduction in working hours, including that her employer did not have the money to employ her full-time, I am not persuaded there is a need to draw such an inference.
The plaintiff’s evidence supports the defendants’ submission that at least part of the reason for the reduction in her working hours was the plaintiff’s employer’s budgetary situation. I do not however accept that this evidence shows that this was the only reason. In particular, the plaintiff’s evidence established that these conversations also addressed her work capacity and that she had needed to reduce her hours of work from time to time following the accident to manage her condition.
Nevertheless, that finding is necessarily fatal to the plaintiff’s proposed approach which relies on her current three-day work week being tied directly to her reduced earning capacity.
The plaintiff submitted that whether there was employment available with her current employer is irrelevant in determining the plaintiff’s future capacity to earn. I partly accept that submission. It is true that the ultimate question is what the plaintiff’s capacity is. However, the plaintiff’s case in regard to future economic loss was based to a large extent on her reduction in work from five days to three days a week. It became apparent that this reduction is not solely referable to the plaintiff’s capacity and indeed there are aspects of the plaintiff’s evidence and that of the medical practitioners that do necessarily not support such a finding.
In particular, it is apparent from the plaintiff’s evidence that she is open to returning to work full-time and believes that she may, at some point in the future, be able to return to full-time work. I note that prior to her current contract period, the plaintiff was employed under full-time contracts and took leave during flare ups to help manage her symptoms. The plaintiff in her evidence indicated that this is something she could see herself working towards in the future (see, for example, T205.1-40). This evidence tends against counsel for the plaintiff’s submission that this Court with mathematical certainty can assess the plaintiff’s future earning capacity as 60% of her pre-accident capacity.
I note that both Dr Eaton and Dr Burke were also supportive in their evidence of the plaintiff making a graduated return to work following her completion of a pain management course, with appropriate support from her employer (see generally T246.19-43). That the experts support this approach, however, does not establish that the plaintiff has regained her pre-accident earning capacity.
Indeed, the medical experts indicated that a graduated return to work would need to be carefully managed and that the plaintiff would likely require support from both her employer and from medical professionals. I note that the plaintiff’s employer has been supportive of the plaintiff when she has needed to take time off or adjust her hours to manage her conditions.
As is apparent from the evidence, the plaintiff adjusted her working patterns following the accident to manage her health conditions. This has included periods of time where she has had to work reduced hours or take periods of time off to attend appointments. In my view, on the balance of probabilities the plaintiff has some reduced earning capacity and this reduction in capacity will continue into the foreseeable future.
It follows that, in my view, the plaintiff will have periods of varying work capacity as she manages her ongoing medical conditions. This also supports the use of a buffer calculation rather than a more mathematical approach.
The defendants’ proposed buffer amount of $50,000 was referable to their submission that, based on the plaintiff’s work practice since the accident, the plaintiff will likely be able to work full-time with some allowance needed for her to take periods of leave during a flare up of her condition. I do not accept that submission which does not accord with the plaintiff’s or the experts’ oral evidence that she may at some point attempt a graduated return to full-time work.
The evidence of the experts and the plaintiff does not rise to the level to support the defendants’ submission that the plaintiff is presently able to return to full-time work. In particular, the evidence of Dr Allnutt as to what a return to work might look like (with which Dr Cohen agreed) suggests that any return should be gradual, with ongoing assistance and support provided to the plaintiff by both medical experts and her employer and her progress being carefully monitored.
Dr Allnutt’s suggestion that a graduated return to work could best be viewed as a “test” was not inconsistent with the evidence of the other medical experts.
In my view, it is apparent from the evidence that the plaintiff presently has some reduced earning capacity, but not to the level of two days a week as submitted by the plaintiff, and there remains some possibility, perhaps even a good possibility, that she may be able to increase her work hours, from her current three days a week, at some stage in the future.
The evidence is not clear, however, that a graduated return to work would necessarily be to full-time hours or would be sustainable. In that regard, I again note the evidence of Professor Champion that full-time work may not be sustainable in the long term. As outlined by Dr Allnutt and Dr Cohen it would be necessary for the plaintiff to increase her hours over time while assessing how she is managing her symptoms. While Dr Burke was of the view in his reports that the plaintiff could work full-time, it was apparent from his oral evidence that he again would support a graduated return to work rather than an immediate return to full-time hours.
The evidence also indicates that even when the plaintiff increases her work hours, it is likely that during flare ups she will need to reduce her work hours to attend to medical appointments and due to pain caused by her physical conditions. Indeed, this was the view of the defendants’ expert, Dr Burke. In coming to the appropriate buffer amount, I consider that this ongoing need for time off is a relevant factor.
In accordance with the approach in Oliver, I think it is helpful to consider, in assessing a buffer for future economic loss, the figure of future economic loss that would be awarded under the mathematical approach for one day of reduced earning capacity a week. That is not to say that I accept that this is a precise account of the plaintiff’s lost earning capacity, but rather that it is one factor to consider in assessing the appropriate buffer.
Taking the plaintiff’s pre-accident salary of $1,753 net per week, yields a net daily income of $350.6. Multiplying this by the 3% multiplier for 17 years (the multiplier put forward by the plaintiff) yields approximately $244,473.
In making my assessment of the appropriate buffer I take this figure into account. To this I then account for the matters I discussed above concerning how the plaintiff’s capacity may improve in the future. I also factor into my assessment other matters that may have impacted her reduced earning capacity (including the ANU incident). In making my assessment, I also take into account the fact that, in my view of the evidence, even if the plaintiff is able to return to work full time at some point in the future it is likely (as the defendants submitted) that the plaintiff will need time off work to manage any flare ups and to attend appointments and that it is possible that full time work would not be sustainable in the long term.
In my view the appropriate buffer to award for future economic loss is $175,000. That will incorporate a discount for vicissitudes of 15% which I will now discuss.
As I outlined above, the defendants submitted that a 30% discount for vicissitudes was appropriate, with reference to the decision of Hauraki. As I have already discussed that decision concerned a markedly different scenario where there was evidence before the Court concerning the likely suicide risk of the plaintiff.
In my view, this is not a case where something more than the “usual” vicissitudes discount of 15% should be applied. While I accept that prior to the accident the plaintiff had asymptomatic fibromyalgia, there is no evidence before me that would enable me to estimate the likelihood that this condition would otherwise have become symptomatic but for the accident. The “standard” 15% discount accounts for a wide array of circumstances and in my view captures the present scenario and evidence.
There was also an issue between the parties as to whether vicissitudes could be applied to a buffer. The plaintiff submitted by reference to Oliver at [58] that where a buffer is used to assess future economic loss, no discount for vicissitudes is allowed, as they are factored into the buffer. The defendants submitted that that paragraph should instead be read as authority that in that particular case vicissitudes had been factored into the buffer, rather than authority that vicissitudes could not be factored in onto a buffer.
In my view, this is a distinction with little practical difference. Whether the percentage is applied within a buffer or onto a buffer amount, the result is the same. In this case, I have factored the 15% reduction into the buffer. That is not to say, however, that I accept the plaintiff’s submission that a Court could never apply a discount for vicissitudes to a buffer. Instead, the approach taken by the Court of Appeal in Oliver was that in that particular case vicissitudes had been incorporated into the buffer such that no further discount was needed.
I turn now to consider the issue of superannuation.
In my view, it is better to account for superannuation outside of the buffer calculated above. I note that such an approach is not necessary: see SMA v John XXIII College (No 2) [2020] ACTSC 211 at [296], while the decision in SMA v John XXIII College was appealed, the Court of Appeal also accounted for superannuation within the buffer: John XXII College v SMA [2022] ACTCA 32 at [191], [192(f)]. However, in my view, accounting for superannuation outside of the buffer better enables the basis for the buffer to be explained.
This is particularly the case where, as discussed below, different superannuation percentages have been awarded by this Court for future economic loss. Were superannuation to simply be included in the buffer (and without a clear statement of the percentage allowed for superannuation) this uncertainty would make it difficult if not impossible to accurately calculate how much was actually awarded for future economic loss.
The plaintiff’s submissions did not address the question of superannuation. The defendants’ submissions allowed for 11% to be awarded as superannuation for future economic loss.
I note that previous decisions of this Court have allowed differing percentages for superannuation for future economic loss. For example, McWilliam AsJ awarded 13% in Amin. 13% was also awarded by Collier J in Rhodin and Elkaim J in Lee at [124]. In contrast, 11.5% was awarded in Stanford v Dermejian [2020] ACTSC 151 and Hall. In Steed v McDougall [2019] ACTSC 36, I allowed 11% for superannuation on both past and future economic loss. In Oliver the Court of Appeal allowed 14% for superannuation for future economic loss (at [71]), the same percentage that had been awarded by the primary judge.
It is apparent that the defendants’ proposed 11% falls within the range of percentages awarded by this Court in recent years. There being no submission from the plaintiff that a higher percentage should be awarded, I will award $19,250 (11% × $175,000) for superannuation for future economic loss.
Disposition
The plaintiff will be awarded damages as outlined in the summary table below. My preliminary view on costs is that costs will follow the event. However, if either party seeks a different costs order, the parties will have leave to file short written submissions on the issue of costs. Any outstanding issues of costs will, subject to further order, be dealt with on the papers.
Category Damages Awarded ($) Reference Paragraph Past medical expenses and interest (agreed) 15,533 [105] General damages 120,000 [144] Interest on general damages 6,000 [144] Past domestic assistance (including interest) 8,000 [177] Future domestic assistance 79,555 [209] Future medical expenses 40,699 [256] Past economic loss 35,000 [276] Interest on past economic loss 7,875 [292] Future economic loss 175,000 [326] Superannuation for past and future economic loss 3,850 + 19,250 = 23,100 [283], [336] Total $510, 762
As I discussed above, the parties will also have leave to file short submissions in relation to any of the interest calculations if they seek a different period or wish to raise an issue with the calculations. In that regard, the damages award is a preliminary one and will be stayed pending any submissions concerning interest being filed. Any adjustment to the interest calculations will be dealt with on the papers.
Following an enquiry from my chambers and shortly prior to judgment delivery, the plaintiff’s representatives indicated that they may seek redactions in relation to a matter referred to in the judgment. I will permit the parties to provide short written submissions on any redactions they seek and the basis for such redactions to my chambers.
I make the following orders:
1.Judgment for the plaintiff in the sum of $510,762.
2.The second defendant is to pay the plaintiff’s costs of the proceeding on a party-party basis.
3.The operation of order 1 be stayed for 7 days and, if any submissions are filed pursuant to order 5 until further order.
4.The operation of order 2 be stayed until further order to permit the parties to provide any further written submission as outlined below.
5.The parties have leave to file and serve written submissions limited to 2 pages in length in relation to any of the interest calculations within 7 days from the date of this judgment.
6.The parties have leave to file and serve written submissions limited to 5 pages in length in relation to costs within 14 days from the date of this judgment.
7.The parties have leave to file and serve written submissions in reply limited to 2 pages in length in relation to costs 5 days after the deadline in order 6.
8.Subject to any further order or direction, in the event that any written submissions are filed the Court will address the issue of costs and any change to the interest awards on the papers.
9.Subject to further order or direction, the judgment is to be published only to the parties and their legal representatives.
10.The parties have leave to provide written submissions limited to 5 pages in length to the chambers of Loukas-Karlsson J concerning any redactions that are sought by 5.00pm on 2 November 2022.
| I certify that the preceding three hundred and forty [340] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Andrew Ray Date: 28 October 2022 |
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