Marcelle Kelly v Alex Culakovski
[2014] VSCA 305
•26 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2014 0096 | |
| MARCELLE KELLY | Appellant |
| v | |
| ALEX CULAKOVSKI | Respondent |
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JUDGES: | NEAVE, BEACH and KYROU JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 November 2014 | |
DATE OF JUDGMENT: | 26 November 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 305 | |
JUDGMENT APPEALED FROM: | [2014] VCC 950 (Judge Smith) | |
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ACCIDENT COMPENSATION – Appeal – Damages – Personal injury – Assessment of damages for personal injury – Relevance of appellant’s reliability as a witness to the assessment of damages – Loss of earnings – Loss of earning capacity – Medical and like expenses.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P A Jewell QC with Mr S R McCredie | Lennon Mazzeo |
| For the Respondent | Mr D Masel SC with Ms R L Kaye | Lander & Rogers |
NEAVE JA
BEACH JA
KYROU JA:
Introduction
On 28 August 2009, the appellant was standing on a footpath outside premises situated at 947 Burke Road, Camberwell, when a marble façade fell from the wall of the premises and struck her on the back of her head. At the time of the accident, the premises were owned and occupied by the respondent.
Following the accident, the appellant commenced a proceeding against the respondent in the County Court, claiming that she had suffered injury as a result of the accident and that such injury was caused by the negligence of the respondent. Ultimately the respondent admitted liability, and the matter proceeded as an assessment.
On 16 June 2014, the matter came on for hearing before a judge of the County Court. The trial lasted seven days. On 18 July 2014, the judge delivered reasons for judgment[1] and entered judgment for the appellant in the sum of $265,711 (being damages assessed in the amount of $256,700[2] together with damages in the nature of interest fixed at $9,011).
[1]Kelly v Culakovski [2014] VCC 950 (‘Reasons’).
[2]While the version of the Reasons in the appeal book suggests the judge assessed the appellant’s damages in the total sum of $240,700, judgment was in fact entered for $256,700 after an arithmetic error in the judge’s calculation of the appellant’s loss of earnings was identified and corrected.
The appellant appeals to this Court in relation to the judge’s assessment of her damages. The appellant’s grounds of appeal are as follows:
1.The learned trial judge erred in finding that the accident-related exacerbation of her pre-injury condition was not substantial and [that] led to an unreasonably low assessment of damages under all heads which was not open and/or against the weight of the evidence.
2.The learned trial judge failed to adequately set out the reasons for or make sufficient findings in relation to the plaintiff’s pre-injury and post injury condition to support the award of damages made under each head.
3A.The learned trial judge erred in concluding the plaintiff’s evidence was exaggerated and was unsupported by the evidence.
3B. The learned trial judge impermissibly drew an inference against the plaintiff’s evidence as to the extent of her post-injury disability, impairment and incapacity based on the failure to call as witnesses others who had holidayed with her when her evidence was corroborated by the unchallenged evidence of her husband and there was no other contrary evidence to be preferred.
3C.The learned trial judge impermissibly drew an inference against the plaintiff’s evidence concerning her pre and post-accident work history based on the failure to call as witnesses anyone employed at the Chadstone store when there was unchallenged corroborating evidence of the work history and no contrary evidence to be preferred.
4.The learned trial judge’s finding that the exacerbation of the plaintiff’s pre-injury condition had not materially contributed to any incapacity for the period from November 2012 to the date of judgment was not open and against the weight of the evidence and was, in any case, inconsistent with his finding that the plaintiff has suffered a moderate reduction in earning capacity.
5A.The learned trial judge’s finding in respect of incapacity that but for the accident the plaintiff would have chosen not to work and would instead have cared for her children until some future date when they required less care was not open and unsupported by the evidence.
5B. Further and alternatively the learned trial judge failed to take into account evidence that but for her injury the plaintiff was likely to have been paid for full- time work even if she did not always engage in such work full-time.
6. The learned trial judge erred in finding there was no evidence that:
(a) Pharmaceutical expenses were greater after the accident than before it.
(b)Any expense had been incurred in respect of additional attendances with the general practitioner as a result of the injury.
(c) Additional massage expense had been incurred as a result of the injury.
(d)Expenses categorised as “other medical expenses” at [131] of the Reasons were identified.
7. The learned trial judge applied the wrong test in rejecting Pilate’s and physiotherapy expenses.
At the commencement of the hearing of the appeal, the respondent conceded that the judge erred in his assessment of the appellant’s damages in failing to allow expenses claimed by the appellant under the heading ‘other medical expenses’. The respondent conceded that these medical and like expenses, claimed in the sum of $6,234.80, should have been allowed (see ground 6(d)). Further, the respondent conceded that the judge should have allowed something for ‘additional pharmaceutical expenses’ and ‘additional attendances with the general practitioner’ (see ground 6(a) and (b)). It was the respondent’s contention that the judge should have allowed an additional amount in the range $6,000 to $10,000 for the medical and like expenses referred to in paragraphs (a), (b) and (d) of ground 6. To that extent, the respondent invited this Court to increase the appellant’s damages, but otherwise dismiss the appeal.
The trial
The appellant gave evidence at trial. She also called her husband, Michael Kelly, her brother and general manager of her employer, Travis Trewarne, Katrina Marchioni (a comparable employee in respect of the appellant’s earnings), and Amanda Dobell (one of the appellant’s co-workers after the accident). The appellant also called Dr Dianne Marchant (a general practitioner), Dr Richard Peppard (a neurologist), Dr Richard Sullivan (an anaesthetist and pain management specialist), Dr Peter Gaitanis (a psychologist) and Mr Justin Moar (a physiotherapist) all of whom had treated the appellant.
The only witness called by the respondent was a consultant neurosurgeon, Miss Elizabeth Lewis. Miss Lewis had examined the appellant on behalf of the respondent on 15 February 2012 and 2 April 2014.
Various reports prepared by Dr Marchant, Dr Peppard, Dr Sullivan, Dr Gaitanis, Mr Moar and Miss Lewis were tendered. In addition reports were tendered from Dr Neels Du Toit (a physician who treated the appellant) and Dr David Weissman (a consultant psychiatrist who examined the appellant at the request of the appellant’s solicitors on 2 August 2012 and 21 February 2014).
Other documents were tendered, including photographs, a notice of past benefits from Medicare, documents purporting to be summaries of the appellant’s income and wages, a pay summary, radiology reports, records of Ambulance Victoria, letters passing between medical practitioners[3] and an anatomical drawing depicting the trapezius muscle. Additionally, the appellant tendered a document (‘exhibit T’) that purported to set out details of the appellant’s medical and other expenses incurred as a result of her injuries and details of the appellant’s hours worked, amounts paid, yearly income and tax paid.
[3]Including a letter from a neurologist (Dr David Prentice) to Dr Marchant dated 1 April 2009 and a letter from Dr Peppard to a medical practitioner not called at trial (Dr Dumitru Popescu) dated 22 May 2006.
In addition to the documents to which we have referred, the appellant tendered a piece of the marble that fell on her, and the respondent tendered DVD surveillance of the appellant carried out in August 2012 and December 2013.
The appellant’s background
The circumstances of the appellant’s background were not relevantly in dispute at trial, save for the extent and seriousness of a pre-accident migraine condition from which the appellant suffered, and an issue as to whether, before the accident, the appellant worked full-time or part-time.
The appellant was born on 22 December 1974 and was 34 years’ old at the time of the accident. She was 39 years of age at the time of trial. The appellant learnt to ski at the age of two and later competed in school ski competitions. When aged 20, the appellant changed from skiing to snowboarding to further her sporting ambitions. From 1997, for six years, she spent January and February of each year snowboarding overseas. At one time, the appellant had hopes of competing in the Winter Olympics as a snowboarder.
The appellant continued to snowboard, and in the early 2000s met her husband through that sport. They married in August 2007. The appellant gave evidence that, before the accident, in addition to snowboarding, she also played golf, tennis, swam weekly and ran daily.
The appellant’s family were, and had been since the 1930s, engaged in a significant jewellery business, Trewarne Jewellers. The appellant commenced working part-time in the family business while she was still at school. She completed VCE in 1992, and then worked for six months in the family business, before spending 11 months overseas on a working holiday. Upon her return to Australia, the appellant again took up work in the family business. In 1997, she became qualified as a gemmologist, being certified as a diamond technician and grader. About five years later, the appellant completed necessary course work to become a qualified jewellery valuer.
In May 2008, the appellant gave birth to her first daughter. At the time of the accident, the appellant’s daughter was 15 months of age.
The evidence of the appellant’s pre-accident migraine condition
The appellant gave evidence that she commenced to suffer from headaches at about the age of ten. She said she would get a headache and take a tablet called Mersyndol which would put her to sleep for about eight hours. She would then wake up headache free. Later on, the drug Imigran became available. The appellant said this tablet greatly improved her headache condition. Specifically, the appellant said:
I didn’t have to spend a day in bed and I could just – usually I would wake up in the early hours of the morning with half my head kind of in a state of headache and you’d take the tablet, I would go back to bed for a couple of hours, wake up fine.
In evidence-in-chief, the appellant was asked and answered the following questions:
How frequently did you suffer episodes of migrainous headache, as well as you can recall? – – – Up to once a fortnight.
When you say up to once a fortnight, do you mean it could be less frequently? – – – It could be less frequent.
On 10 July 2006, the appellant had her first Botox injection as part of the treatment for her migraine headaches. The appellant gave evidence that up to that time she had controlled her headaches with tablets, but she did not like having to take medication all the time. At the time of her first Botox injection, the appellant said she was having migraines once a fortnight. The appellant was asked and answered the following questions about the effect of her initial treatment with Botox:
What was the effect of the treatment like for your headaches? – – – It was fantastic. I didn’t have to take one tablet for the whole 12 weeks and then the headaches came back a little bit again.
So when you say you didn’t have to take medication for the 12 weeks, did you have headaches in that period? – – – I didn’t – I didn’t have one headache.
So you were symptom free then for about three months? – – – Yes.
When you had the repeat Botox injections after July of 2006, on each occasion was it the same or did you have a different reaction? – – – No. Each occasion, it was the same. It was fantastic.
The appellant then gave evidence that during her pregnancy with her first daughter, and for a time after delivery, the appellant had a period where she did not suffer from migrainous headaches. However, the headaches eventually returned ‘just as they were before’. The appellant resumed Botox treatment and had injections of Botox in April and July of 2009. The appellant said that these Botox injections had the same effect as the earlier ones, that is, ‘no headaches’.
In cross-examination, the appellant referred to both migraines and headaches, saying that before she received her first Botox injection she suffered migraines up to once a fortnight as well as other ‘small headaches’. The appellant said that she could still work and still exercise when suffering from these headaches: it was the migraines that disabled her.
In re-examination, the appellant described the smaller headaches as ‘tension headaches’. The appellant was asked and answered the following question:
At that time, that’s before the Botox injections, how frequently were you getting the tension-type headaches? – – – Frequent enough like – all the time. I’m not sure. Like, whether it’s once every four days or once every three days but I would have small headaches a lot of the time.
The appellant’s husband gave evidence that the appellant was ‘basically a very fit outdoorsy person’ prior to the accident. Asked about any problems associated with ‘headaches and the like’, the appellant’s husband said:
She had a lot of migraines, she’s always had – always had migraines.
On 22 May 2006, three years before the accident, and two months before the first Botox injection, Dr Peppard wrote to the appellant’s then general practitioner, Dr Dumitru Popescu in the following terms:
Thank you for referring this pleasant 31 year old woman with a long history of migraine dating to the age of ten. She had frequent headache through late childhood and adolescence. Her menstrual periods did not start until she was about seventeen. They did not seem to influence the frequency or severity of the headaches … .
She has tried Sandomigran without benefit and with a constant feeling of tiredness.
She gets a headache most days which starts with tightness along the upper border of the trapezius in her shoulders, spreading to the upper posterior cervical and occipital region and then settling in the temporal region. If it lodges on the right side the headache may be severe and she may require Imigran. With the Imigran she feels tired and has some tightness in her neck but often the most severe headaches are stopped. If the headache is on the left side it can be less severe. Mild-to-moderate headaches occur most days and may be partially controlled with Panadol and Nurofen.
Massage, acupuncture and swimming seem to loosen the feeling in the muscles of her neck and shoulders and improve her headache tendency … .
She has common migraine superimposed on some tension-type headache symptoms … .
Dr Popescu did not give evidence at trial. The judge said that he would have expected Dr Popescu to know of the appellant’s ‘general health in the years leading up to May 2006, of the extent of her problems leading up to that time, her complaints concerning headaches or migraines, and of any treatment provided for such complaints’.[4]
[4]Reasons [20].
On 1 April 2009, approximately five months before the accident, Dr Prentice (the neurologist who administered the April 2009 Botox injection to the appellant) reported to Dr Marchant (who became the appellant’s general practitioner in about February 2008):
Many thanks for your referral of this very nice 34 year old woman for ongoing management of her headaches. She has suffered from migraines since the age of ten and now has problems with chronic daily headache, with a strong cervicogenic component, but some migrainous features and she still has a fairly good response to Imigran for acute treatment. She has been on Deralin in the past, which she feels was of some benefit and was having regular Botox injections every three to four months up until August 2007. She stopped the injections to have a baby and her headaches improved substantially during her pregnancy … .
Marcelle tells me that she has seen multiple specialists about her headaches in the past and has also had acupuncture, osteopathy and chiropractic treatment and had scans in the past, which were all normal … .
She had quite marked cervical muscle spasm, particularly on the right side and there was tenderness over the upper sternomastoid and lower trapezius muscles … .
In summary, Marcelle has the problem of chronic daily headache, with features of common migraine and cervicogenic and tension type headache as well. She has responded well to Botox injections in the past and was agreeable to further treatment. I have administered 50 units across her frontotemporal regions today, 5-10 units in the lower right trapezius and upper sternocleidomastoid and 5 units either side in the occipital and sub-occipital regions. I have given Marcelle a script for Deralin 10 mg bd and I have also given her a script for Imigran nasal spray to see if this is more effective than the Imigran tablets, which tend to make her nauseous … .
In his reasons for judgment, the judge said that he considered that Dr Marchant and Dr Peppard were important witnesses because they had treated the appellant both before and after the accident. The respondent contended that the opinions expressed by Dr Peppard in May 2006 and Dr Prentice in April 2009 were important because they provided a contemporaneous description of the appellant’s migraine headaches. Further, the respondent submitted to the judge that these descriptions were inconsistent with the appellant’s evidence. At trial, the appellant contended that the opinions were merely ‘snapshots’ of the appellant’s condition at the dates upon which the reports were written. The judge did not agree.[5] Before this Court, the appellant advanced a different argument, saying that when one properly understood the appellant’s evidence concerning migraines on the one hand and headaches on the other hand, there was no inconsistency between the appellant’s evidence and the histories recorded by Dr Peppard and Dr Prentice. We will return to this matter later.
[5]Reasons [51].
The evidence of the appellant’s pre-accident work history
The appellant gave evidence that prior to the accident she was working in the family jewellery business (Trewarne Jewellers) on a full-time basis. As the judge noted, the appellant was adamant that for many years prior to the accident she had worked for Trewarne on a full-time basis, and that this was corroborated by the evidence of her brother, Travis Trewarne.[6]
[6]Reasons [89].
The appellant gave detailed evidence about the work she did shortly prior to the accident setting up a new shop in Chadstone. The appellant was asked and answered the following question:
What responsibilities, if any, were you to have at the Chadstone shop – – – I was going to run it, help choose the stock, value jewellery. I was going to be … the onsite diamond grader, gemmologist, valuer, the only one there as well and … hopefully sell a lot of big diamonds.
This evidence was corroborated by the appellant’s brother, the managing director of Trewarne Jewellers, who said:
Well, Marcelle had kind of trained up with the previous location and taken over the management of that store, we also had a second store – that was at the Chadstone store – we also had a second store selling just under licence from Pandora, she was also involved in managing that, and we were closing the original store and planning to reopen the new store with Marcelle as in the management position … [that is, as the store manager].
The appellant also gave evidence that some of her work before the accident was performed from home. There was a considerable amount of paperwork involved that could be performed by the appellant at home. In cross-examination, the appellant was asked and answered the following question:
So the working full-time was a little bit of home, a little bit of the kiosk and a little bit of the other shops, yes? – – – Well, it was a lot of home because at that stage I was doing 25 or more hours of stock numbers a week.
No witness gave evidence that before the accident the appellant only worked part-time. The only evidence that cast doubt upon the evidence of the appellant and her brother on this issue was to be found in the history of a report written by Dr Gaitanis and in the history recorded by Miss Lewis. According to the first report of Miss Lewis, the appellant gave a history that she ‘works in a family jewellery business and has always worked part-time’. Dr Gaitanis reported (in or after June 2013[7]) that:
At the time of injury, Ms Kelly had been working part-time for the family jewellery business.
[7]The report of Dr Gaitanis was undated but, from its contents must have been written in or after June 2013.
The judge described the histories taken by Miss Lewis and Dr Gaitanis as ‘puzzling’.[8] That said, the judge ultimately concluded that he was not satisfied that the appellant was working full-time at the date of the accident. The appellant complains about this finding, about which we will say more below.
[8]Reasons [90].
After the accident
Following the accident, the appellant was taken to Epworth Hospital. A CT scan of her brain was performed. No abnormality was detected. A scalp haematoma was diagnosed and the appellant was discharged.
On 31 August 2009, the appellant attended a general practitioner and was referred for an x-ray of her cervical and thoracic spine. No abnormality was detected. On 7 September, the appellant re-attended the clinic she had attended on 31 August and saw Dr Marchant. The appellant gave a history of extreme pain, ‘couldn’t move’ and was wearing a cervical collar provided by a physiotherapist. The appellant was extremely tearful and presented with significant cervical muscle spasm and limited movement. Dr Marchant prescribed Feldene, Panadeine Forte and Diazepam, and wrote a letter to an insurance company explaining the need for an upgrade to business class for a pre-planned trip to Thailand in that month. The evidence disclosed that this was the first of 17 overseas or interstate trips taken by the appellant between the time of the accident and the time of trial. The judge summarised this travel as follows:
a)Within approximately two weeks of the accident, she travelled to Thailand with her husband and sixteen-month old baby for ten days. Shortly after her return, she told Dr Marchant that she had got on very well.
(b)Shortly after her return from Thailand, she and her baby flew to the Gold Coast. The evidence did not disclose for how long.
(c)In February 2010, she flew to the United States with her husband and baby and stayed at a ski resort, Jackson Hole, for ten days. Her evidence, and that of her husband, was that she rarely skied and then only on easy runs.
(d)In June 2010, she holidayed on the Gold Coast. The evidence did not disclose for how long or with whom.
(e) In October 2010, she travelled to Byron Bay for her sister’s wedding.
(f)In March 2011, she flew to Hong Kong with her brother, Travis, to attend a jewellery trade fair.
(g)In April 2011, she flew to Perth to attend her brother-in-law’s wedding.
(h)In June 2011, she flew to Thailand with her husband and two daughters, who would then have been aged nine months and three years respectively.
(i)In September 2011, she holidayed at the Gold Coast for about one week, presumably with her husband and daughters.
(j)In December 2011, she travelled with her husband and daughters (then aged three-and-a-half years and fifteen months) to Europe for about five weeks, where they stayed at various ski resorts in Germany and in Austria, including Innsbruck, St Anton and Oberlech. Again, her evidence was that she skied very little on that holiday.
(k)In June 2012, and again in August 2012, she and her family holidayed at Mount Buller, a ski resort in Victoria.
(l)Later in August 2012, she holidayed for nine days at Palm Cove, in Far North Queensland.
(m)In February 2013, she and her husband and friends holidayed at a ski resort in Japan for two weeks.
(n) In April 2013, she holidayed at the Gold Coast with her family.
(o) In July 2013, she holidayed at Mount Buller with her family.
(p) In September 2013, she holidayed in Bali with her family.
(q)In January 2014, she told Dr Weissman of recently attending a wedding in Palm Beach, North Sydney.
(r)She gave evidence that she had arranged a holiday at Mount Buller in July 2014.[9]
[9]Reasons [59].
In summary, the appellant gave evidence at trial that she had suffered a significant and debilitating aggravation of her pre-existing headaches and migraines, and had developed debilitating neck pain. The appellant had a Botox injection in October 2009. She then fell pregnant and gave birth to her second daughter in September 2010. No Botox injections were administered during this period (Botox being contra-indicated during pregnancy). After the birth of her second daughter, the appellant had two further Botox injections in 2010, four in 2011 and then approximately five per year from 2013. The evidence discloses that the frequency of the appellant’s Botox injections and the quantity administered has been greater since the accident than it was before the accident. Further, the appellant’s evidence, and the evidence of her treating medical practitioners, was that the Botox treatment has not been as effective since the accident as it was before the accident.
As a result of her increased symptoms, the appellant has had bilateral cervical median nerve blocks performed in April 2012, December 2012, April 2013, August 2013, January 2014 and May 2014. Additionally, radiofrequency treatment has been performed in October 2012 and May 2014. The results of this treatment (nerve blocks and radiofrequency treatment) has been mixed.
In addition to the Botox injections and the radiofrequency treatments, the appellant gave evidence that as a result of the accident she has tried and engaged in various other forms of treatment and activity that she finds helpful. These have included physiotherapy, massage and Pilates. While she used to have massages before the accident, these were said by the appellant to have been ‘for pleasure’. Whereas the appellant said that the massages she has received since the accident provide relief of tension, but are ‘not pleasurable’.
Since the accident, the appellant has been referred to a psychologist (Dr Gaitanis). Dr Gaitanis first saw the appellant in November 2012. He saw her on two further occasions in 2013 and two further occasions in 2014. As the judge noted, the appellant has not been referred to, or treated by, a psychiatrist.
The appellant did not return to work for a period of some months following the accident. In the lead up to Christmas 2009, the appellant said she thought she worked two shifts lasting about three hours with migraines and increased neck pain. She stopped doing the data entry work at home. From the start of 2010 to 31 October 2012, the appellant said that the maximum number of hours she worked per week was about 11. She had difficulty with this work. For periods after the accident it would appear that the appellant may sometimes have only performed three hours’ work per week. The appellant’s evidence about her difficulties at work was corroborated by the evidence of Amanda Dobell, an employee at Trewarne Jewellery’s Southland store.
The appellant gave evidence of an improvement in her condition in May 2014, shortly before trial. At the time of trial, this had resulted in a decrease in the amount of medication the appellant said she was required to take. However, the appellant’s evidence was that she continued to suffer from symptoms involving migraine headaches and neck pain causing her to be seriously disabled in a way that she was not disabled before the accident. The appellant has not worked since October 2012.
The medical evidence
The medical evidence called by the parties at trial was relevant to the issues of:
(a)the nature of the appellant’s pre-accident migraine condition and headaches;
(b)the nature and extent of the appellant’s condition subsequent to the accident;
(c)the appellant’s prognosis; and
(d)the extent to which the accident was a cause of the appellant’s post-accident condition (including the extent to which the appellant’s post-accident condition and prognosis was affected or made worse by the accident).
As in many personal injury cases of this type, the accuracy and reliability of the medical evidence is dependent upon the accuracy and the reliability of the histories given by the plaintiff (appellant) to the doctors. To the extent that the appellant’s reliability as a historian was undermined at trial, any medical opinion expressed that was premised upon the acceptance of such history is also undermined.
At trial, the judge was faced with competing opinions as to the extent of the appellant’s disability and the extent to which any condition from which she was suffering was caused by the accident. On the one hand, the judge had the evidence of Dr Marchant and Dr Peppard, both of whom the judge described as important witnesses because they had treated the appellant both before and after the accident.[10] The judge dealt with and summarised the evidence of Dr Marchant and Dr Peppard in the following terms:
Reports of Dr Marchant of March 2011, May 2013, March 2014 and May 2014 were tendered. In addition, Dr Marchant gave oral evidence. Dr Marchant was of the view that Mrs Kelly’s headaches were considerably worse after the accident and that her ability to work was much reduced. In March 2013, she considered Mrs Kelly had no capacity for work. More recently, she considered she had a capacity to work four hours per week. Further, she considered that the overall effect of her restricted work, domestic and social activities had had a devastating effect on her psychological status. I note however that Mrs Kelly has never been referred to a psychiatrist or been prescribed anti-depressant medication.
Mrs Kelly had reported to Dr Peppard that, after the accident, the effect of Botox treatment was partial, with an improvement in migraines, but still experiencing constant, dull pain at the side of her head and more prominent neck pain. In his January 2011 report, Dr Peppard stated that it was likely that her headache tendency was significantly exacerbated by her head injury. In his report of July 2013, he stated that from the time of the accident, her headache, migraine tendency, neck tightness and pain had all been major problems. He said he had no record of her having neck pain or tightness before the accident. This statement appears to be inconsistent with his letter of 22 May 2006. Nevertheless I accept that Dr Peppard found that her condition overall was worse after the accident, and his recollection was that her neck pain was more persistent after the accident rather than episodic as it was before.
In his report of June 2014, he opined:
“Marcelle Kelly had a significant and sustained increase in her headache and neck pain following the injury she sustained on 28 August 2009. She had a significant migraine tendency prior to this but was functioning very well both in her work as a mother, in running a household and in her job outside the home with the assistance of these treatments. Following the accident there had been a marked impairment of her function in all of these areas.”[11]
[10]Reasons [55].
[11]Reasons [56]–[58] (footnotes omitted).
On the other hand, the judge had the evidence called by the respondent from Miss Lewis. Miss Lewis gave evidence that, from a physical point of view the appellant had recovered from her injuries. Miss Lewis also expressed the opinion that the appellant’s diagnosis was ‘post-traumatic exacerbation of migraine headache and possible post-traumatic psychiatric disorder’. Miss Lewis said it was impossible to quantify the contribution of the accident to the appellant’s migraine headaches. However, Miss Lewis, having taken the history that the appellant always worked part-time, said that the appellant was ‘capable of continuing to work part-time’.
The judge’s reasons
The judge commenced his reasons by identifying the issue in dispute being one ‘as to the extent of injuries suffered by [the appellant] in the accident and the expenses and loss of earnings attributable to it’.[12] The judge then set out relevant background matters, a description of the accident and a description of relevant matters and treatment following the accident.
[12]Reasons [4].
The judge then noted that it was not disputed that the appellant suffered a blow to the head with a resultant haematoma and neck pain.[13] The judge then set out the parties’ cases in the following terms:
Mrs Kelly‘s case was that, whilst she had suffered long-term migraine problems before the accident, her condition had not significantly interfered with her life in terms of employment and recreational activities. Essentially, her case was that she had suffered a significant and debilitating aggravation of her pre-existing headaches and migraines and had developed debilitating neck pain.
The defendant’s case was that Mrs Kelly had suffered from a significant underlying chronic condition involving headaches, migraines and neck pain prior to the accident and that the aggravation of that condition was limited in duration to a period of about six months following the accident. Thereafter, the defendant submitted Mrs Kelly’s symptoms have been attributable to her pre-existing, underlying condition.[14]
[13]Reasons [43].
[14]Reasons [45]–[46].
The judge then dealt with the appellant’s pre-existing migraine/headache condition in the following terms:
I accept that Mrs Kelly’s pre-existing, underlying condition was a significant one. She had been prescribed a variety of medications for it for more than twenty years. However, I accept that the condition had not prevented her from leading a relatively active and satisfying lifestyle. I accept that:
(a)She had been able to complete her education up to Year 12 and had been able to obtain the jewellery qualifications referred to previously.
(b)She had been able to participate in snow sports from an early age and had continued to do so right up to the time of the accident and at a relatively high standard.
(c)Soon after completion of her schooling, she had been able to travel to Europe, where she either worked or holidayed for about a year.
(d)Upon her return to Australia, she had worked at a ski resort for the winter season.
(e)She had been able to work for Trewarne for more than a decade before the accident.[15]
[15]Reasons [48].
The judge then extracted the opinions expressed by Dr Peppard and Dr Prentice in their letters of 22 May 2006 and 1 April 2009, to which I have already referred.
In respect of these opinions, the judge said:
Counsel for Mrs Kelly submitted that these reports were merely “snapshots” of her condition as at the dates of those reports. I disagree. These were reports setting out the histories given to the respective specialists by Mrs Kelly in May 2006 and April 2009. These were given well prior to the accident and any contemplated legal proceedings. The histories given were consistent. I consider they were provided to those doctors honestly by her. The picture painted is, I consider, of a woman with significant symptoms of daily headaches, migraines and cervicogenic involvement.
I do not accept that Mrs Kelly only suffered from neck problems after the accident, and particularly note the observation by Dr Prentice of cervical muscle spasm on the right side when he saw her some months earlier.
I find that Mrs Kelly’s chronic, underlying, pre-accident condition was of considerable significance to her. Notwithstanding, and to her credit, she appears to have made every effort to live as full a life as she could.[16]
[16]Reasons [51]–[53].
Next, the judge dealt with the evidence of Dr Marchant and Dr Peppard in passages we have extracted above, before turning to the appellant’s post-accident international and domestic travel. Having identified the travel in the terms to which we have already referred, the judge said:
The defendant submitted that these holidays put Mrs Kelly’s complaints of increased pain and incapacity since the accident into some perspective. I agree.
I consider that international and interstate travel can be hard work and stressful for anyone and especially so if travelling with two very young children. I accept the defendant’s submission that her willingness to travel as she has done indicates that she has, in the main, enjoyed those holidays and been keen to embark on further trips. I accept that Mrs Kelly was probably better able to cope with longer trips by flying business class rather than economy class.
I do not accept that the fact of such travel amounts to proof that there has been little wrong with Mrs Kelly since the accident or that there has been no exacerbation of her pre-accident condition. However, I do consider that Mrs Kelly has, to an extent, exaggerated the extent of that exacerbation.[17]
[17]Reasons [60]–[62].
The respondent did not suggest at trial that the appellant was deliberately untruthful in her evidence. Rather, at trial, the respondent submitted that the appellant had been shown to be an unreliable witness. The pre-accident histories recorded by Dr Prentice and Dr Peppard were said to be inconsistent with the appellant’s evidence as to the severity of her pre-accident condition. The appellant’s extensive travel since the accident was said to tell against the proposition that the appellant was significantly or seriously disabled as a result of the accident. Additionally, a history given by the appellant to Dr Weissman was said to call into question the appellant’s reliability as a witness. The judge said:
The history provided by her to Dr Marchant on 7 September 2009 of extreme pain and being unable to move since her discharge from Epworth Hospital on the day of the accident is, in my opinion, not consistent with her journeys to Thailand and to the Gold Coast in September and October 2009. I note Dr du Toit’s finding, in April 2010, that she had good and adequate range of cervical spine flexion and extension, with discomfort only at the end range of those movements.
In August 2012, Mrs Kelly was seen by Dr Weissman, psychiatrist, at the request of her solicitors. She told him that she had a permanent headache after the accident and that she required “around the clock care” for almost one year at home. I consider that that history was a gross exaggeration.
Dr Marchant, Dr Peppard, Dr Sullivan and Dr Gaitanis were largely unaware of the extent of Mrs Kelly’s post-accident travel.
Dr Sullivan saw Mrs Kelly for the first time in February 2012. She told him that she had had about three months of continuous migrainous headache after the accident. He was not told of her holidays in Thailand and the Gold Coast in that period. I find it most unlikely that she would have embarked on those trips in the midst of a three-month migraine.
In April 2012, Dr Sullivan apparently had no knowledge of Mrs Kelly’s five-week holiday in Germany and Austria just a few months earlier. At the time he wrote his report of May 2013, he had no knowledge of her further holidays at Mount Buller, Palm Cove, Japan or the Gold Coast.
Dr Gaitanis was Mrs Kelly’s treating psychologist. He saw her initially on referral from Dr Sullivan in November 2012, nearly three-and-a-half years after the accident, and then on five further occasions between that time and March 2014. He made no reference in either of his reports or in his clinical notes to any of her travel or holiday activities over that period. He said that the opinions expressed by him were based on a belief that she largely stayed at home. He said he was surprised that she had travelled extensively over the period that he had been seeing her. Later in his evidence, he said that he might have been aware of a ski trip.
Dr Gaitanis had expressed an opinion in both of his reports that Mrs Kelly’s “social activities have remained limited as she finds it difficult to manage the pain for extended periods away from home”. In cross-examination, he was asked what social activities he was referring to. He said that he only had a note that her attendances at a mother’s group had dropped off.
Dr Gaitanis’ lack of knowledge concerning Mrs Kelly’s lifestyle and activities gives me little confidence in his opinions as to the extent of her psychological or physical problems, the degree to which they relate to the accident and as to her capacity for work. I place little weight on his opinions.
Dr Peppard knew nothing of Mrs Kelly’s extensive travels. For instance, he saw her on 2 December 2011 and again on 13 February 2012. He knew nothing of her five-week holiday in Germany and Austria in the interim.
Dr Marchant had been aware of Mrs Kelly’s intended trip to Thailand in September 2009. She was told by Mrs Kelly that she had got on very well and had had a good time in Thailand. There was also mention in her clinical notes in October 2009 of Mrs Kelly having a break in Queensland with her daughter. She was unaware of any other travel by Mrs Kelly since.
Travel was obviously a relatively large and important part of Mrs Kelly’s life between August 2009 and the present. The lack of knowledge of her treating general practitioner and specialists of her holiday activities is puzzling. I am not satisfied that it can be explained merely by Mrs Kelly thinking such matters were irrelevant to those treating her. For example, Dr Gaitanis was advised about a reduction of mother’s group activities. It is difficult to accept that Mrs Kelly considered that a reduction in these activities might be relevant but not her extensive travel activities, if they had presented any problems for her.
I am left with the conclusion that any problems experienced by her during those holidays were relatively minor, not of sufficient consequence to mention to those treating her, and not sufficient to deter her from further travel.[18]
[18]Reasons [63]–[74] (footnotes omitted).
The judge then concluded:
Taking all of the evidence into account, I am satisfied that Mrs Kelly’s headaches and neck pain have been, to an extent, worse since the accident. Notwithstanding her extensive travel, and allowing for the fact that she has had two small children to raise, I am satisfied that her recreational and employment activities have been reduced to an extent since 2009 by reason of an exacerbation of her headaches and neck pain. Mrs Kelly carries the onus of establishing the degree to which those pre-existing symptoms have been exacerbated. Whilst I accept there has been an exacerbation, I am not convinced that degree is substantial.[19]
[19]Reasons [75].
In the result, the judge assessed the appellant’s pain and suffering damages in the sum of $90,000, rejected the appellant’s claim for past loss of earnings, assessed the appellant’s loss of earning capacity at 20% of a total loss, which the judge discounted by 15% for vicissitudes, so as to produce an amount of $136,000, and then allowed $30,700 for past and future medical and like expenses – making a total assessment of $256,700.
The judge’s findings about the appellant, the basis of the assessment and the judge’s reasons: grounds 1, 2 and 3A
In grounds 1, 2 and 3A the appellant complains that:
(a)the judge erred in finding that the accident related exacerbation of her pre-accident condition was not substantial;
(b)the judge failed to give adequate reasons for his findings in relation to the appellant’s pre-accident and post-accident condition; and
(c)the judge erred in concluding that the appellant’s evidence was exaggerated and/or unsupported by the evidence.
The assessment of damages in this case was heavily dependent upon the reliability of the appellant’s evidence. As with many cases of this kind, the determination of precisely what injury and consequences had been suffered by the appellant as a result of the accident fell to be assessed by a close examination of the appellant and her evidence. As we have already said, the medical evidence, based as it was on histories given by the appellant, was only as good as the appellant’s evidence. While this Court is obliged (in the context of the grounds of appeal pursued by the appellant) to conduct a real review of the trial and to substitute its own conclusion for any conclusion or finding of the trial judge that is shown to be erroneous, proper allowance must be made for the advantages of the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of the case.[20]
[20]Fox v Percy (2003) 214 CLR 118, 125–128 [23]–[28] (Gleeson CJ, Gummow and Kirby JJ). See also Filipovski v Ogemi Services Pty Ltd (2009) 25 VR 316, 341 [109] (Neave JA, with whom Buchanan JA agreed).
The judge found that the appellant had ‘to an extent’ exaggerated the extent of the accident related exacerbation of her condition.[21] He supported this conclusion by reference to the pre-accident histories contained in the May 2006 letter written by Dr Peppard and April 2009 letter written by Dr Prentice. The judge also supported his conclusion by reference to the histories given to Dr Marchant on 7 September 2009 (extreme pain and being unable to move since discharge from hospital on the day of the accident) and Dr Weissman in August 2012 (required ‘around the clock care’ for almost one year at home). Plainly, the history given to Dr Weissman was, as the judge said ‘a gross exaggeration’.[22]
[21]Reasons [62].
[22]Reasons [64].
The appellant took issue with the judge’s conclusions that the May 2006 letter of Dr Peppard and April 2009 letter of Dr Prentice painted a picture of a person ‘with significant symptoms of daily headaches, migraines and cervicogenic involvement’.[23] The appellant took issue with the judge’s use of the word ‘daily’, pointing out that the May 2006 letter of Dr Peppard referred to headache ‘most days’. There is nothing in this complaint. The letter from Dr Prentice refers to ‘chronic daily headache, with a strong cervicogenic component’ and ‘chronic daily headache, with features of common migraine and cervicogenic and tension-type headache as well’.
[23]Reasons [51].
In argument before this Court, senior counsel for the appellant[24] sought to distinguish between the appellant’s references in evidence to headaches on the one hand and to migraines on the other hand. It is true that in some answers given in cross-examination, the appellant distinguishes between tension headaches and migraines. However, this was not a distinction made in evidence-in-chief, nor was any such distinction relied upon at trial as an explanation for the histories given in the May 2006 and April 2009 letters.
[24]Who did not appear for the appellant at trial.
As part of her complaints about the inadequacy of the judge’s assessment of her damages, the appellant takes issue with the judge’s treatment of the evidence concerning her post-accident travel. Specifically, the appellant submits that the judge failed to have proper regard for her evidence and the evidence given by her husband as to difficulties the appellant had on each of the holidays taken. There is nothing in this complaint. A significant part of this complaint depends upon the acceptance of the appellant’s description of these holidays. The judge, having seen the appellant, was entitled not to accept the entirety of the appellant’s description of her difficulties. While the appellant’s evidence about her post-accident travel was, to some extent, corroborated by her husband, on an analysis of the whole of the evidence, the judge was entitled to conclude that the very fact of the post-accident travel ‘put [the appellant’s] complaints of increased pain and incapacity since the accident into some perspective’.[25] We are not persuaded that there was anything unbalanced in the judge’s treatment of the post-accident travel issue.
[25]Reasons [60].
Ultimately, the judge concluded that the appellant’s pre-accident migraine/headache condition was worse than the appellant described it in evidence. He also concluded that the appellant’s post-accident condition was not as bad as she would have had him believe. He supported these conclusions by reference to descriptions of the appellant’s pre-accident condition made prior to the accident and by reference to statements the appellant made to doctors and in evidence that he considered overstated the correct position. Some of the exaggerations (for example the history given to Dr Weissman of the need for around the clock care) were more easily demonstrable than others. The judge, having had the benefit of seeing the appellant give her evidence, was in the best position to determine just how reliable the appellant’s evidence was. We see no error in the judge’s approach to the appellant’s evidence, nor in relation to the judge’s conclusions about it. Further, the judge’s reasons more than adequately disclose a path of reasoning to the conclusions he made about the appellant’s evidence, and thus the basis upon which the assessment of the appellant’s damages was to be performed.
To the extent that the appellant made complaint about the failure by the judge to identify with precision the actual injury sustained as a result of the accident and some more precise finding as to the duration for which any particular level of symptoms or disability would last, such complaint must be rejected. This was a difficult case where the evidence did not permit of great precision so far as such issues were concerned. The judge’s conclusions have to be seen in the light of the medical evidence which was (in large part) accepting of the fact of an aggravation or a worsening of the appellant’s condition, premised on an acceptance of the appellant’s histories and what she told her treating practitioners from time to time. The precision of the judge’s findings has to be examined and considered in the light of the evidence as a whole. When one undertakes that examination, one sees that there was no inadequacy in the judge’s reasons.
Failure to call witnesses who holidayed with the appellant: ground 3B
In ground 3B, complaint is made that the judge impermissibly drew an inference against the appellant as to the extent of her post-injury disability, impairment and incapacity based upon the failure to call as witnesses others who had holidayed with the appellant. In support of this complaint, it was submitted that the appellant’s evidence of her post-accident disability, impairment and incapacity was corroborated by the unchallenged evidence of the appellant’s husband and there was no other contrary evidence to be preferred.
While it is true that the appellant’s husband was not cross-examined at trial, his evidence only went so far in corroboration of the appellant’s evidence. At base, it was the appellant’s description of her pre-accident and post-accident problems that fell to be considered and accepted or rejected by the judge. That, as we have said, was a matter heavily dependent upon how the appellant presented in giving her evidence and also upon a comparison between that evidence and evidence external to the appellant, including relevant evidence in contemporaneous documents (such as the May 2006 and the April 2009 letters of Dr Peppard and Dr Prentice).
The only part of the judgment to which ground 3B relates is paragraph [82] of the Reasons. The judge said:
I accept that Mrs Kelly’s skiing and snowboarding activities have been reduced somewhat by reason of the exacerbation of her pre-existing condition. However, I am not satisfied that she has barely skied on her holidays to ski resorts in the United States, Europe and Japan. She holidayed in Japan with a number of other couples, none of whom were called to give evidence. There was no evidence that such persons were unavailable to give evidence.[26]
[26]Reasons [82].
While one might accept that the last sentence of paragraph [82] of the Reasons suggests that the judge inferred that the evidence of those whom the appellant and her husband holidayed with in Japan would not have assisted the appellant’s case, there is no basis for concluding that the judge then used that inference so as to reject some aspect of the appellant’s evidence. The judge’s reasons do not fall to be construed in the same way one might construe a statute. In our view, the last sentence of paragraph [82] was no more than an observation of the fact. The judge was entitled to make this observation, particularly as the appellant’s husband’s evidence about the trip to Japan was limited to the following answer given in evidence-in-chief:
The last one that we went on we went to a place called Furano which is on the northern island of Japan. We left the girls with my parents and we went for two weeks with two other couples and another fellow, and I spent the days riding around with this other group of gentlemen. Marcelle again would come out for lunch and she spent most of the days with the – there was a couple of other women who came along who both tried learning snowboarding but weren’t overly fond of it and they spent a lot of time again shopping or I think they went to the onsens and those sorts of things as well.
In these circumstances, there is nothing in ground 3B. Further, and in any event, even if the judge did use the appellant’s failure to call as witnesses one of the other people who holidayed with her in Japan in February 2013, we are not persuaded that this made any material difference to the judge’s ultimate conclusions or to the assessment of damages.
Loss of earnings and loss of earning capacity: grounds 3C, 4, 5A and 5B
In grounds 3C, 4, 5A and 5B, various complaints are made concerning the judge’s treatment of the appellant’s claims for loss of earnings and loss of earning capacity. Specifically, the appellant contends that:
(a)the judge erred in not accepting her evidence, and the evidence of her brother, that at the time of the accident the appellant was in full-time employment and expected to remain in full-time employment;
(b)the judge erred in not making any allowance for loss of earnings for the period from November 2012 to the date of trial (judgment);
(c)the judge erred in his findings, in relation to the appellant’s claims for past loss of earnings and future loss of earning capacity, in concluding that the appellant would not have worked while she had the care of young children; and
(d)the judge erred in not taking into account evidence that, but for her injury, the appellant was likely to have been paid for full-time work even if she did not always engage in such full-time work.
In our view there is some substance in the first three of the appellant’s complaints, but no substance in the fourth complaint. In respect of loss of earnings and loss of earning capacity, the judge said:
I accept that at times before the birth of her daughter, Mrs Kelly did work full-time for Trewarne. However, it is clear that she only worked two to three days per week at the previous Chadstone store, at least from the birth of her daughter. Although she may have done some work from home, I am not satisfied that she was working full-time at the date of the accident, nor that it was her intention to return to work full-time, at least whilst she had a young family.
Nevertheless, it is probable that she would have returned to longer hours once her children became more independent. It is clear that Mrs Kelly and her husband (a partner in a law firm in Melbourne) were relatively comfortable financially. Unlike some young mothers, she probably did not need to work.
Mrs Kelly makes no claim for loss of earnings between the date of the accident and 31 October 2012 (during which time she received her full salary from Trewarne). She claims that, since that date, she has only been able to work on a very limited basis from her home, performing some data entry work for Trewarne. Her evidence was that she works about three hours per week and is paid $30 per hour gross.
…
Assessment of loss of earnings in this case is not an easy task. Notwithstanding, I have come to the conclusion that, in calculating her loss, I should take into account the following:
(a)There was a genuine risk that the improvement in her pre-accident condition by Botox treatments may not have continued indefinitely. In the event that that occurred, there was a real prospect that she would not have been able to continue working or, at least, not on a full-time basis.
(b)With two young children, I find it likely that, regardless of the accident, Mrs Kelly would have chosen not to work for a time until they were older and required less direct care.
(c)Notwithstanding her exacerbated symptoms, there is a real prospect that her recent improvement will continue and Mrs Kelly may return in the future to full-time work with Trewarne or at least to longer working hours than those currently engaged in by her.
(d)Mrs Kelly’s extensive travel since August 2009 does cause me to conclude that she has a greater working capacity than that currently exercised by her.
In all of the circumstances I am not satisfied that Mrs Kelly has established a loss of earnings for the period from November 2012 until the present. Regardless of the accident, I am not satisfied that she would have returned to substantial working hours in that period with Trewarne or any other employer. I am not satisfied that she would earned more than she has in fact earned between November 2012 and the present.
With regard to the future, I note that Mrs Kelly is currently aged thirty-nine, and is married with two daughters aged six and three. There was no evidence from her or her husband as to whether or not they had plans for any further children. However, she is at an age where she and her husband might well contemplate additional children. I consider that the age of her two children and the prospect of further children will impact on the likelihood of her returning to full-time employment, and would have done so regardless of the accident.
But for the accident, I consider she would have returned at some stage to full-time work with Trewarne or possibly another jewellery business. I consider it likely that she would still have been affected by her pre-existing chronic condition, in that she would have been required to take some time off work as a consequence of headaches and migraines.
In determining the reduction in her earning capacity, I do not consider that a precise mathematical calculation is possible. Mrs Kelly carries the burden of establishing the extent of her loss. Regardless of the difficulty in assessing the value of a loss, the Court is required to do the best it can.
I find, on the balance of probabilities, that as a consequence of injuries from the accident, Mrs Kelly has suffered a moderate reduction in earning capacity. I accept that she has suffered from more headaches and migraines since the accident and that these, had she been attempting to work full-time, would have resulted in her taking more time off work than would otherwise have been the case. However, I do not accept that such injuries would have prevented her from working in effectively a full-time position with Trewarne after November 2012.
In coming to my assessment of Mrs Kelly’s loss of earning capacity, whilst I am satisfied her earning capacity has been reduced, I am not satisfied that reduction is more than about 20 per cent.
…
[The appellant’s submissions] were based upon an assumption that Mrs Kelly currently had virtually no earning capacity. I am not satisfied this is so. I consider that she is capable of working considerably more hours than she is currently working. I consider that she has effectively made a lifestyle choice to reduce her hours of work to a few hours per week from home, enabling her to care for her young children and manage the family home.
I accept that it is appropriate to commence with a starting figure of $1,039 per week (Ms Marchioni’s wage including superannuation) as reflecting Mrs Kelly’s earning capacity but for the exacerbation of her condition resulting from the accident. A loss of 20 per cent of that amount is approximately $208 per week. Applying the agreed multiplier to age 65 (768.7), a gross loss of $160,000 is calculated. From this, I consider a reduction of 15 per cent should be made to reflect the normal vicissitudes of life. I assess her future loss of earnings at $136,000.[27]
[27]Reasons [95]–[97], [110]–[116] and [120]–[121] (footnotes omitted).
In our view, the judge was wrong to conclude that the appellant was only working part-time at the time of the accident. The correct conclusion on the evidence was that the appellant worked two to three days (or part-time) in one of the family business’s stores, but also did substantial work from home, making her effectively a full-time employee of the business. Because the business was a family business, it would seem that the appellant had more freedom to travel and take time off for family reasons. That said, such a conclusion does not detract from the evidence which, when taken as a whole, compelled a finding that the appellant was, in essence, working full-time at the time of the accident, and that she was also intending to continue to work full-time.
Further, the failure to call witnesses employed at the Chadstone store did not provide a sound basis for doubting the conclusion that the appellant was effectively a full-time employee. The references to part-time employment in the history sections of the reports of Miss Lewis and Dr Gaitanis should be understood to be a reference to the appellant’s in-store employment being only for part of each week. Such a construction of these histories was also consistent with the appellant’s brother’s evidence. Indeed, the appellant’s brother’s description of the appellant’s work status went some way to explaining the histories recorded by Miss Lewis and Dr Gaitanis (part-time in the store, together with significant paper work at home, equating to full-time employment).
Additionally, to hold against the appellant on the issue of whether she was a full-time or part-time employee required a conclusion beyond saying that the appellant was an unreliable witness. To disbelieve the appellant on this issue would have required a finding that the appellant was not truthful. At trial, the respondent was not prepared to submit to the judge that the appellant was deliberately untruthful – and the judge made no such finding.
In our view, the judge erred in not allowing an amount for past loss of earnings from November 2012. Consistently with the judge’s findings as to future loss of earning capacity, one might have thought that the judge would allow 20% of the period from November 2012 to the time of trial (judgment). The evidence was that the appellant was working full-time with a 15 month old child at the time of the accident. The evidence disclosed that the appellant wanted to continue to work full-time, and had sufficient family support for any necessary child care that needed to be performed in respect of her children. Further, the appellant’s brother’s evidence supported the proposition that, so far as the appellant’s employer was concerned, but for the accident, the appellant would have worked full-time after the accident.
In argument, the respondent contended that the judge was, in any event, correct to award nothing for past loss of earnings because even if the appellant had a loss of earning capacity of 20%, the fact that she did not exercise her remaining capacity (80%) demonstrated that she had chosen not to work, and therefore she should receive no damages for past loss of earnings. We reject this submission. It proceeds on a false premise. The appellant claimed to be effectively totally disabled from November 2012 to the time of trial. But this does not preclude her from recovering damages for the 20 % past loss of earning capacity which she did suffer, according to the judge’s findings about the extent of the appellant’s accident-related disability.
That said, we see no error in relation to the judge’s treatment of future loss of earning capacity. While the judge’s reasons about future loss of earning capacity include reference to the appellant’s children and an assertion that the appellant would have chosen not to work for a time until they were older, he did assume that the appellant would have returned to full-time work at some stage. In substance the judge’s assessment of the appellant’s future loss of earning capacity was made on the basis of his Honour’s findings that the appellant had suffered only a partial loss of earning capacity. The 20% figure selected reflected that partial loss.
It follows from what we have said that, in our view, an allowance should have been made by the judge in respect of the appellant’s loss of earnings between November 2012 and the time of trial. At trial, there was no dispute about the relevant figures. As the judge described it:
[The appellant] claims that, but for the accident, she would have earned $982.38 per week after tax and that superannuation of $111.71 would have been paid on her behalf by Trewarne. For the 90 weeks from 31 October 2012, she claims $98,468.10, less the amount she has actually earned with her part-time employment of $5,790, a total of $92,678.10 in respect of the past. The defendant conceded the accuracy of the calculation but not liability to pay such amount.[28]
[28]Reasons [98].
Accepting the bases that the judge adopted for the assessment of the appellant’s damages, we would allow 20% of the figure of $98,468.10, less the amount actually earned ($5,790). Accordingly, we would increase the judge’s assessment in respect of past loss of earnings by the amount of $14,000. For reasons already given, we would not alter the judge’s assessment in respect of future loss of earning capacity.
During the hearing of this appeal, both sides made submissions as to the course this Court should take should the appellant establish error. Ultimately, the debate centred upon the question of the type of error that might be established. Both sides accepted that if this Court found that the assessment of one or more heads of damages was affected by some error of fact or law then, if this Court was prepared to reassess the relevant component, bearing in mind the judge’s conclusions about the reliability of the appellant as a witness and any other conclusions not shown to be wrong, the Court should, in the interests of efficiency,[29] make the necessary alterations to the judge’s assessment.[30] In the circumstances, in our view it would be appropriate to allow the appeal for the purpose of adding to the judge’s assessment of damages, the amount conceded by the respondent in respect of ‘other medical expenses’, additional general practitioner visits and additional pharmaceutical expenses, together with any other adjustment to the award of damages that might be necessitated by the existence of error.[31]
[29]Cf ss 7(1) and 8(1) of the Civil Procedure Act 2010.
[30]The question might have been different if this Court was to conclude that the judge’s conclusions with respect to the reliability of the appellant as a witness were attended with error. Re-assessing the appellant’s damages in those circumstances would likely have been very difficult as this Court has not had the benefit of seeing and hearing the appellant.
[31]We should say for the sake of completeness that the re-assessment of one or more components of the appellant’s damages because the judge’s assessment has been found to be affected by error does not depart in any way from, and is in fact consistent with, the principles referred to and discussed by this Court in CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505 at 508-9.
Medical and like expenses: grounds 6 and 7
In grounds 6 and 7, the appellant makes complaint about the judge’s treatment of her claims for pharmaceutical expenses, additional attendances with the general practitioner, massage expenses, ‘other medical expenses’, physiotherapy expenses and Pilates expenses. The respondent concedes that a sum in the range $6,000 to $10,000 should be added to the judge’s assessment for ‘other medical expenses’ and additional pharmaceutical expenses and general practitioner costs. The judge dealt with these claims as follows:
With regard to massages, Mrs Kelly had such treatment regularly before the accident. Her evidence was that these earlier massages were merely for enjoyment. In contrast, I note the history provided by her to Dr Peppard in May 2006 that “massage, acupuncture and swimming seem to loosen the feeling in the muscles of her neck and shoulders and improve her headache tendency”. I am not satisfied that Mrs Kelly has established that massage expenses were incurred as a consequence of injuries sustained in the accident.
Expenses relating to Pilates exercise classes are claimed – 88 visits in the past from May 2011 and ongoing. Pilates exercises are undertaken by many persons in the community regardless of injuries. There seems little doubt that they are seen as beneficial in achieving and maintaining general fitness. Although Mrs Kelly apparently did not partake in such classes before the accident, she may well have benefited from them had she done so. I am not satisfied that the need for those classes arises from injuries sustained in the accident.
On the same basis, I am not satisfied that the need for ongoing physiotherapy relates to the exacerbation of her condition in the accident. That is not to say the Mrs Kelly may not find physiotherapy treatment useful currently or in the future.
…
With regard to expenses relating to visits to her general practitioner, Mrs Kelly relies upon the evidence of Dr Marchant that in the two years prior to the accident, she had attended on fourteen occasions whilst in the two years following the accident, she attended on twenty occasions. I note further, that in the five months of 2014, she has attended on only three occasions. There was no evidence as to precisely what any of these attendances related. I am not satisfied that it has been established that there have been additional attendances relating to the exacerbation of injuries in the accident.
In the Particulars of Special Damage dated 18 June 2014 filed on behalf of Mrs Kelly, an amount of $6,234.80 is claimed for “Medical – Other” expenses. These other expenses were not identified in evidence and I am unable to be satisfied that they related to injuries sustained by her in the accident.
Likewise, an amount of $3,851 is claimed for “Rehabilitation Expenses”. These were not identified in evidence. I am not satisfied as to what they relate.
Mrs Kelly claims $4,063 for past pharmaceutical expenses based on 75 per cent of the total spent of $5,418. There was no evidence as to what expenses were incurred by her prior to the accident. There was no evidentiary basis for attributing 75 per cent of her incurred expenses to injuries sustained in the accident. There was no evidence that her pharmaceutical expenses were any more after the accident than before it. I make no allowance under this head.[32]
Amounts claimed for ‘other medical expenses’, additional general practitioner visits and additional pharmaceutical expenses
[32]Reasons [124]–[125] and [130]–[133].
At trial, the appellant claimed past general practitioner visits in the sum of $1,196, past pharmaceutical expenses of $4,063.70 and ‘other medical expenses’ at $6,234.80. Additionally, the appellant claimed future general practitioner visits in the sum of $19,524 (one visit at $20 per week for life) and future pharmaceutical expenses in exactly the same total amount.
Consistently with the judge’s findings, the ‘other medical expenses’ should have been allowed in full and the amounts for additional general practitioner visits and pharmaceutical expenses should have been allowed in part so as to conform with the judge’s finding of a 20% loss of earnings over the appellant’s working life, and the judge’s allowance for nerve block treatments over the balance of the appellant’s life. While one cannot be precise about the amounts that should be allowed in respect of pharmaceutical and GP expenses, accepting that the appellant has an ongoing need for additional treatment, we would allow the sum of $20,000 in respect of the appellant’s claims for additional GP visits (past and future), additional pharmaceutical expenses (past and future), and the expenses claimed by the appellant under the heading ‘other medical expenses’.
Physiotherapy
At trial, the appellant claimed past physiotherapy expenses in the sum of $1,331.[33] The appellant then claimed for nine months of physiotherapy treatment every three weeks into the future at the rate of $85 per treatment ($1,020). The physiotherapy claim was well supported by the medical evidence and, consistently with the judge’s findings as to injury, should have been allowed, at least in part, notwithstanding the judge’s conclusion that the appellant had neck problems prior to the accident. Again, it is impossible to approach this task with any precision.
[33]The claim for past physiotherapy was rolled-up with past chiropractic treatment in a total amount of $1,573. However, only $192 of that amount related to chiropractic treatment.
Doing the best we can, we would allow $2,000 for past and future physiotherapy expenses, the need for which was created by the accident. While the respondent submitted at trial that physiotherapy was probably required by reason of the pre-existing condition, and not by reason of any exacerbation caused by the accident, the respondent also submitted that if there was any exacerbation that was caused by the accident then ‘the defendant [did] not quibble with the reasonableness of the physiotherapy’.
Massage and Pilates
At trial, the appellant claimed the cost of Pilates under the heading ‘Rehabilitation Expenses’. Past Pilates was claimed in the sum of $3,851 and a claim was made for the future on the basis of $80 per week ($78,096). Past massage expenses were claimed in the sum of $5,424.55, and a claim was made for the future ($30 per week) in the sum of $29,286. There was medical support for these treatments/activities as being reasonably necessary, and beneficial. The real question was to what extent the appellant’s accident related condition was causative of a need for the appellant to undertake this sort of treatment/activity. Dr Sullivan was directly supportive of the claims for massage and Pilates. He said:
The massage is sought for treatment of her ongoing pain problems sustained as a consequence of the aforementioned injuries [injuries suffered on 28 August 2009 when the appellant was struck by debris falling from the premises].
…
[the appellant’s] need for a functional restorative programme of a rehabilitative nature [in the form of Pilates or similar exercise] is a direct consequence of the injuries sustained.
In our view, the judge was wrong to disallow the claims for massage and Pilates. In disallowing the claim for massages, the judge referred to the fact that the appellant had massages before the accident ‘merely for enjoyment’. In disallowing the Pilates claim, the judge said that ‘Pilates exercises are undertaken by many persons in the community regardless of injuries’. It may be that, in making these statements, the judge’s task of assessing whether the accident had created a reasonable need for the appellant to engage in these activities or undertake this treatment in accordance with the medical evidence tendered by the appellant was overlooked.
Consistently with the judge’s findings as to an aggravation requiring ongoing treatment, some allowance should have been made for massage and Pilates in accordance with the medical evidence. Dr Peppard’s view as to the utility of massage and Pilates for the treatment of the appellant’s condition was that there might be utility in this treatment for up to 20 years. That said, any allowance under these headings has to take into account the appellant’s pre-accident condition and the needs that condition would likely have generated had the accident not occurred.
Again, the medical evidence does not enable one to assess the amounts that should be allowed under these headings with any great precision. While the claim for massage expenses is greater than the claim for Pilates, it should be remembered that Pilates exercises can from time to time be done without the need for the involvement of another person (thus obviating any incurring of expense). The value of a dollar per week using a 5% discount rate[34] is $666.
[34]See s 28I of the Wrongs Act 1958.
Doing the best we can, we would allow $5,000 in total for past massage and past Pilates. For the future, we would allow a total of $30 per week (again for total massage and Pilates expenses) for 20 years making a total of $20,000. One could adjust this figure upwards on the basis that more Pilates and massage might be needed, or downwards on the basis that some of the massage and Pilates might not be accident related. In the end, as we have said, there can be no great precision about the matter. $25,000 represents our best assessment, on the evidence, consistent with the judge’s findings, as to the appropriate amount that should be awarded in respect of the appellant’s accident related need for the massage and Pilates treatment.
Conclusion
It follows from what we have said, that we would allow the appeal and reassess the appellant’s damages by adding to the judge’s assessment an amount of $14,000 for past loss of earnings and an additional $47,000 for medical and like expenses, making a total assessment of the appellant’s damages of $317,700.
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