Player v Avery - [2022] WASCA 147

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PLAYER -v- AVERY [2022] WASCA 147
CORAM:   MURPHY JA
MITCHELL JA
VAUGHAN JA

HEARD:   18 OCTOBER 2022
DELIVERED          :   18 NOVEMBER 2022
FILE NO/S:   CACV 59 of 2021
BETWEEN:   GAIL FRANCES PLAYER
Appellant
AND
ANITA FAY AVERY
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   VERNON DCJ
Citation: AVERY -v- PLAYER [2021] WADC 69
File Number            :   CIV 1269 of 2017

Catchwords:

Negligence - Personal injury - Car crash - Where defendant accepted liability - Appeal and cross‑appeal on quantum of damages - Plaintiff receiving income protection policy payments - Whether judge erred in award of interest on past economic loss - Whether judge erred in failing to provide adequate reasons for making a global award for future economic loss when plaintiff was fit for pre‑accident employment - Whether judge erred in assessing past loss of earning capacity - Whether judge erred in making no award for past and future loss of superannuation when plaintiff was company director - Whether judge erred in failing to award adequate travel expenses

Legislation:

Supreme Court Act 1935 (WA), s 32

Result:

Appeal allowed in part
Cross-appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	D R Clyne
Respondent	:	J J Sheldrick

Solicitors:

Appellant	:	Moray & Agnew Lawyers
Respondent	:	JDK Legal Services

Case(s) referred to in decision(s):

Allen v O'Donnell [2021] QSC 63
Avery v Player [2021] WADC 69
Batchelor v Burke (1981) 148 CLR 448
Bennett v Jones [1977] 2 NSWLR 355
Browne v Browne [2019] WASCA 1
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Cullen v Trappell (1980) 146 CLR 17
DL v The Queen [2018] HCA 26; (2018) 266 CLR 1
Drazic v Churcher [1992] SASC 3654
Encev v Encev (Unreported, VSC, 24 November 1997)
Evans v Port of Brisbane Authority (1992) Aust Torts Reports 81-169
Evans v Port of Brisbane Authority (1992) Aust Torts Reports 81-181
Fire & All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427
Firth v Sutton (No 2) [2010] NSWCA 109
G v O [2018] WASCA 211; (2018) 53 WAR 393
Graham v Baker (1961) 106 CLR 340
Greenslade v Hiew [2022] WASCA 47
Haines v Bendall (1991) 172 CLR 60
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
Hird v Gibson [1973] Qd R 14
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jackson v Reid (1993) Aust Torts Reports 81-214
Jones v Schiffman [1971] HCA 52; (1971) 124 CLR 303
Joyce v Anderson (2020) 91 MVR 334
Kavanagh v Akhtar (1998) 45 NSWLR 588
L v P [2022] WASCA 40
Laird v Smith [1996] ACTSC 50
Manser v Spry (1994) 181 CLR 428
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
New South Wales v Davies (1998) 43 NSWLR 182
Pave Wealth Services Pty Ltd v Jones [2021] WASCA 7
Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1981] HCA 3; (1981) 145 CLR 625
PKT Technologies Pty Ltd v Peter Vogel Instruments Pty Ltd [2019] FCAFC 216; (2019) 376 ALR 55
Province Leader of the Oceania Brothers v Lawrence [2021] WASCA 77
Rayney v The State of Western Australia [No 4] [2022] WASCA 44
Redding v Lee (1983) 151 CLR 117
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (No 29) [2021] NSWSC 483
Skelton v Collins [1993] QSC 422
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
Swick Nominees Pty Ltd v LeRoi International Inc [No 2] [2015] WASCA 35; (2015) 48 WAR 376
The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15
Wilson v Arwon Finance Pty Ltd [2020] WASCA 137
Wolgast v Connolly's News [2008] QSC 97
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

MURPHY & VAUGHAN JJA:

Introduction

This is an appeal and cross-appeal from a decision of Vernon DCJ in relation to an action for damages brought at first instance by Ms Anita Fay Avery (Ms Avery) against Ms Gail Frances Player (Ms Player) in respect of a motor vehicle accident. Ms Player did not dispute liability, and the primary proceedings concerned quantum only. The judge awarded $845,449 damages to Ms Avery, pursuant to reasons published on 2 July 2021.[1]
[1] Avery v Player [2021] WADC 69 (primary decision).
The accident occurred on 15 November 2014 when Ms Player missed a stop sign and ran into Ms Avery's car. After being hit by Ms Player's car, Ms Avery's car hit a bridge, flipped in the air and then rolled up to seven times. Ms Avery was subjected to significant forces in the accident.[2] Ms Avery and her husband were both injured in the accident. Ms Avery and her husband, who was a psychologist, separated in April 2016, and were involved in ongoing Family Court proceedings.
[2] Primary decision [17] - [18].
The judge awarded damages as outlined below:[3]
[3] Primary decision [314] read with [238] - [239].

Non-pecuniary loss

$131,400

Past loss of earning capacity for the period 15 November 2014 to 30 June 2019

$350,000

Past loss of superannuation

Nil

Past medical expenses $43,662

Past travel expenses $9,387

Future loss of earning capacity $150,000

Future loss of superannuation Nil

Future medical expenses $60,000

Future travel expenses $3,000

Interest to date of judgment $98,000

Total

$845,449

Both parties appeal the judgment on quantum. For the reasons which follow, the appeal should be allowed in part and the cross‑appeal should be dismissed.

The primary proceedings

Ms Avery was 50 years old at the date of the accident. Prior to the accident Ms Avery worked as a physiotherapist.
Ms Avery claimed that she suffered the following injuries, which required treatment:[4]
1.Bilateral lower brachial plexopathy and peripheral nerve injuries (collectively 'the brachial plexus injury').[5]
2.Soft tissue injuries to the cervical and lumbar spine.
3.Post-traumatic stress disorder.
[4] Primary decision [2]; statement of claim, BB 84 - 87.
[5] The 'brachial plexus' is a network of nerves, arising from the spine at the base of the neck, from which arise the nerves supplying the arm, forearm and hand, and parts of the shoulder girdle: Martin EA, Concise Medical Dictionary (8^th ed, 2010), 94 - 95.
As a result of the accident, Ms Avery also claimed that she suffered the following permanent residual disabilities, requiring treatment:[6]
1.Pain, restricted and loss of strength in the arms, hands and wrists.
2.Pain and restricted mobility of the jaw, cervical spine, shoulders, elbows, back and left hip.
3.A central disc bulge with radial fissure at L4/5.
4.Headaches.
5.Depression.
6.Anxiety disorder.
7.Post-traumatic stress disorder.
8.Disrupted sleep pattern.
[6] Primary decision [2]; statement of claim, BB 84 - 87.
Ms Avery also claimed that as a result of the accident she suffered disruption of her social, employment and household duties.[7]
[7] Primary decision [2]; statement of claim, BB 84 - 87.
Ms Avery claimed that she suffered loss of past and future earning capacity by reason of the 'brachial plexopathy injury' (sic - brachial plexus injury) and the psychological injury. She accepted that there was no evidence that any other injuries interfered with her capacity to work.[8] She claimed that she had been totally, alternatively, partially incapacitated for work in her pre-accident occupation as a physiotherapist.[9] Ms Avery claimed loss of earning capacity on the basis of her pre‑accident earnings, which included earnings from a company of which she and her husband had been directors and shareholders - N V Jones & Associates Pty Ltd (trading as Avery Jones Walters (AJW)). Both Ms Avery and her husband operated their respective practices (physiotherapy and psychologist practices) through AJW.[10]
[8] Primary decision [3].
[9] Primary decision [2]; statement of claim, BB 84 - 87.
[10] Primary decision [174], [201].
Ms Avery also claimed interest from 1 December 2014 at a rate of 3% per annum on past losses.[11] She claimed the entitlement to interest despite the fact that since the accident, she had received $84,000 per annum before tax, or $7,000 per month, from an income protection policy.[12]
[11] Primary decision [300].
[12] Primary decision [301].
Ms Player mostly conceded that Ms Avery had suffered the injuries claimed, however she contended that Ms Avery had recovered from the majority of the injuries by around the middle of 2017. Ms Player accepted that Ms Avery had suffered the brachial plexus injury, and that the consequential loss of strength in her arms, hands and wrists prevented Ms Player from working as a physiotherapist. However, she contended that Ms Avery was fit to return to work as a physiotherapist by September 2017, or at least by 1 July 2018.[13]
[13] Primary decision [4] - [5].
Ms Player did not dispute that Ms Avery suffered post‑traumatic stress disorder for some time after the accident, however she contended that the depression and anxiety were the result of the breakdown of Ms Avery's marriage, and not the accident.[14]
[14] Primary decision [6].
In relation to lost earning capacity, Ms Player submitted that Ms Avery's income from AJW for the two years prior to the accident was not a proper basis for assessing Ms Avery's lost earning capacity to the extent that it was derived from earnings from her husband's psychologist practice. Ms Player also submitted that Ms Avery had some income earning capacity in administrative work, and had failed to mitigate her loss by seeking such employment.[15]
[15] Primary decision [8].
Ms Player did not dispute that the income protection policy did not preclude an award for lost earning capacity, but contended that she should not be awarded interest because Ms Avery was not out of pocket to the extent that she was receiving income protection policy payments.[16] Ms Player also disputed Ms Avery's other claims, including for lost superannuation, gratuitous services, travel expenses and medical expenses.[17]
[16] Primary decision [301], the defendant relying on Batchelor v Burke (1981) 148 CLR 448.
[17] Primary decision [9].

The issues at trial

The judge said that the issues for determination were:[18]
[18] Primary decision [10].
1.has the plaintiff recovered from the effects of the brachial plexus injury;
2.if so when did the plaintiff recover from that injury sufficiently to return to work as a physiotherapist;
3.if the plaintiff continues to suffer from the brachial plexus injury, does that prevent her from returning to work as a physiotherapist, or limit her capacity to work in that occupation;
4.does the plaintiff suffer from ongoing psychological injuries as a result of the accident that prevent her from returning to work as a physiotherapist in any event;
5.if the brachial plexus injury or the psychological injuries prevent the plaintiff from returning to work as a physiotherapist, does the plaintiff have any other capacity for work, and, if so, what capacity; and
6.on what basis should any loss of earning capacity be calculated, and the assessment of damages for loss of earning capacity; and
7.the assessment of the plaintiff's claims for past and future lost superannuation, gratuitous services, travel expenses, and medical expenses, and interest on past loss of income.

Background[19]

[19] Primary decision [16], [18], [173] - [183], [190] - [192].

Ms Avery was born on 24 September 1964.
Ms Avery began practising as a physiotherapist in 1986. She commenced her own practice in 1991. At around that time, she completed a TAFE course on how to run a small business. From 1993, she worked full‑time in partnership with another physiotherapist in Whitfords.
In 1996, Ms Avery married Nigel Jones, and her two daughters were born in 1997 and 1999 respectively.
Between 2000 and 2007, she operated her own physiotherapy practice in Joondalup, initially employing two physiotherapists and a couple of staff from the Whitfords practice.
From 2007, Ms Avery and her husband were directors and shareholders of AJW.[20] Ms Avery's husband was a psychologist.[21]
[20] Primary decision [174], accepted by judge at [196].
[21] Primary decision [173] - [174], accepted by judge at [196].
From 2007, Ms Avery and her husband ran their respective physiotherapy and psychology businesses through AJW. The businesses operated from premises in Warwick which Ms Avery and her husband had purchased. Another psychologist, Ms Walters, also worked at the practice. Ms Avery was the only physiotherapist working in the Warwick practice.
In addition to the income derived from her physiotherapy practice, Ms Avery derived income amounting to $60,000 per annum by way of distribution from the profits of the business of AJW, part of which was derived from the psychology practice of her husband and the other psychologist.
At the time of the accident, Ms Avery worked around 15 ‑ 20 hours a week (around two days a week). Prior to the accident, Ms Avery intended to increase her working days to three days a week for the period 1 January 2015 - 31 December 2016, and then four days a week for the period 1 January 2017 onwards.
After the accident, the business of AJW ceased to function as a result of the inability of both Ms Avery and her husband to work following the accident. AJW was wound up and the property at Warwick was sold.
Ms Avery notified the registering authority of her accident in March 2015, and ceased to be registered as a physiotherapist from the end of 2015.
Ms Avery and her husband separated in April 2016, in relation to which they were involved in continuing Family Court proceedings.

Primary decision and findings by judge

Injuries and disabilities

Brachial plexus injury

The judge found that Ms Avery's occupation as a physiotherapist pre‑accident was physically demanding, and involved the need for at least normal strength in her hands and wrists.[22]
[22] Primary decision [23].
The judge found that Ms Avery suffered a brachial plexus injury in the accident and was expected to recover by approximately the beginning of 2017, and that that injury prevented her from working as a physiotherapist until that time.[23]
[23] Primary decision [82].
The judge accepted the evidence of Mr O'Beirne (Ms Avery's treating surgeon)[24] that, in November 2017, Ms Avery was experiencing a 'double crush' from the brachial plexus injury as well as compression of the ulna nerve at these sites. The judge found that she had needed the two operations undertaken by Mr O'Beirne in December 2017 and June 2018 to rectify this.[25]
[24] Primary decision [36] - [55].
[25] Primary decision [43] - [48], [84].
The judge found, in accordance with the evidence of Mr O'Beirne and Dr Grainger (a consultant neurologist called on behalf of Ms Player), that Ms Avery had made a full recovery from the symptoms after the surgeries by 31 December 2018, and that she was able to perform a number of tasks inconsistent with her complaints of physical disability. The judge did not accept Dr Harper's evidence to the contrary.[26]
[26] Primary decision [85] - [90].
The judge found that Ms Avery's evidence as to the ongoing nature of her symptoms after 31 December 2018 was not credible.[27]
[27] Primary decision [91].
The judge nevertheless accepted that, after four years of inaction, Ms Avery would have been required to build up her physical capacity in order to resume physiotherapy work. Her Honour allowed a further period of six months for this. With this additional allowance of six months after 31 December 2018, the judge concluded that Ms Avery was not physically prevented beyond 30 June 2019 (at the latest) from working as a physiotherapist for up to four days a week.[28]

Psychiatric injury

[28] Primary decision [92].

The judge found that the plaintiff was suffering symptoms of anxiety prior to the accident, which was aggravated by the accident.[29] The judge found that Ms Avery developed symptoms of post-traumatic stress disorder after the accident.[30] The judge also found that Ms Avery suffered symptoms of depression, in conjunction with the PTSD, due to her ongoing physical symptoms and inability to work, and these were causally connected to the accident.[31]
[29] Primary decision [144].
[30] Primary decision [141].
[31] Primary decision [142].
The judge found that, in 2017 and 2018, Ms Avery was being successfully treated for any psychiatric injury as a result of the accident.[32] The judge found that, by the beginning of January 2018, Ms Avery had recovered from the psychiatric injuries she experienced as a result of the accident, being depression, post-traumatic stress disorder, and the aggravation of her pre-existing anxiety.[33]
[32] Primary decision [137].
[33] Primary decision [144].
The judge further found that any ongoing psychiatric symptoms which Ms Avery experienced after December 2018 (when she recovered from the brachial plexus injury), which could have prevented her from working in any employment, were not causally connected to the accident.[34]

Lower back and cervical spine

[34] Primary decision [146].

The judge found that:[35]
1.As a result of the accident, Ms Avery suffered, and will continue to suffer, pain in the lumbar and cervical regions of her spine as a result of the aggravation of an asymptomatic degeneration, including an asymptomatic annular tear in the L4/5 disc.
2.Ms Avery finds temporary relief from her symptoms from the pain relief procedures performed by her pain management physician (Dr Finch) and neurosurgeon (Dr Holthouse) from time to time.
3.Ms Avery will continue to require these pain relief procedures for the next 10 years, subject to them remaining effective, at which time Ms Avery will be left with a level of discomfort that will decrease her loss of enjoyment of life.
[35] Primary decision [168].
The judge also found that Ms Avery's lumbar and cervical pain did not prevent her from working as a physiotherapist.[36]

Loss of income earning capacity

[36] Primary decision [168.2].

The judge accepted the evidence of Mr Parry (a vocational rehabilitation provider) that Ms Avery's age (being over 50) and her lengthy period of unemployment were significant barriers to returning to employment in the open job market, particularly if she commenced a new type of employment where experience was lacking.[37]

AJW

[37] Primary decision [187], [199].

The judge found that in relation to the operation of AJW:[38]
1.The administrative work performed by Ms Avery in the Warwick practice was limited to checking financial data entered by staff, and liaising with the accountant when required. This administrative work did not exceed 10% of the time Ms Avery spent working, and was less than two hours a week.
2.There was no agreement that (1) Ms Avery would be paid a specific hourly rate for administrative work at the practice, or (2) that she would work any particular number of hours in the practice.
3.There was no evidence that Ms Avery had sufficient skills to be employed as a practice manager or in an administrative capacity.
4.There was an annual distribution of AJW's profits to Ms Avery and her husband, and this did not vary significantly from year to year.
5.Part of AJW's annual distribution of profits reflected Ms Avery's net earnings, but the balance of the distributed profits were not related to the administrative or other work Ms Avery did for the practice.

Breakdown of the marriage

[38] Primary decision [200].

In examination‑in‑chief, Ms Avery was asked to comment on the suggestion that her real problem for which she was seeking psychological help was the divorce rather than the accident. Ms Avery said that, if it were not for the accident, she would not have got a divorce from her husband. Ms Avery said that a head injury sustained by her husband in the accident 'changed him'.[39]
[39] Primary decision [99].

The judge observed:[40]
[Ms Avery] submitted that [her] lost income earning capacity should be calculated by reference to her actual income prior to the accident. [Ms Avery] submitted firstly that the evidence was that the distribution of salary to [her] from [AJW] was not a distribution of profits but a fair assessment for the work she was doing, and that if there is a loss which is not related to her income generating capacity it was an incidental loss for which [Ms Avery] should be compensated.
[Ms Avery] also submitted that, to the extent that [her] income earning potential as part of the business may have been higher than as a physiotherapist, the divorce from her husband should be ignored because there were no problems in the marriage beforehand, and the marriage would not have come to an end but for the accident.
[40] Primary decision [201] - [202].
The judge found that Ms Avery suffered significant stress as a result of the breakdown of her marriage, the subsequent Family Court proceedings and financial difficulties.[41] However, the judge found that there was a lack of evidence to support the allegation that the head injuries suffered by Ms Avery's husband had a material impact on his mental state or his attitude to his marriage. The judge further held that, even if there were such a material impact, it would not have a causal connection with the injuries suffered by Ms Avery as a result of the accident.[42]
[41] Primary decision [139].
[42] Primary decision [140].
The judge said that there was no basis upon which to make a finding that the marriage came to an end as a result of the accident.[43] She found that had the accident not occurred, it was at least more likely than not that the business relationship would have come to an end after the acrimonious breakdown of the marriage.[44]

The significance, if any, of past earnings from AJW

[43] Primary decision [211].

[44] Primary decision [210].

Ms Avery had relied on the evidence of AJW's accountant, Ms Goldfinch, in support of the claim for loss of earning capacities in connection with the earnings from AJW.[45]
[45] Primary decision [193] - [194].
Ms Avery also tendered the financial statements of AJW for the period 2010 to 2014.[46]
[46] Primary decision [195].
The judge said:[47]
[47] Primary decision [204] - [213].
A plaintiff is to be compensated for loss of earning capacity, not actual loss of earnings. In order to recover damages for loss of earning capacity the plaintiff must establish that:
1.the plaintiff's earning capacity has been diminished by reason of the negligence caused injury; and
2.the diminution of earning capacity is, or may be, productive of financial loss.
…
As was recognised in Husher there are circumstances in which the actual income earned prior to the accident is not a good guide to the income earning capacity lost as a result of the injuries the plaintiff suffered in the accident. This is such a case.
Had the husband continued in practice after the accident, and they had remained married, given his significantly greater role in generating income for the company, as is evidenced by the company accounts, and given that the other person working in the practice was also a psychologist, it is more likely than not that the business would have continued and [Ms Avery] would have continued to receive a share of the profits excluding the proportion received from her work as a physiotherapist. There is no evidence that, in those circumstances, [Ms Avery] would have been unable to carry on the small amount of administrative work she performed for AJW for any period as a result of any injury suffered in the accident. Accordingly, [Ms Avery's] injuries did not impair her ability to generate income in that way.
Had the accident not occurred, it is (at least) more likely than not that the business relationship would have come to an end, after the acrimonious breakdown of her relationship with her husband. The distribution of the business proceeds would be a matter for agreement or the determination of the Family Court.
As I have already said, there is no basis on which I can make any finding that the marriage came to an end as a result of the accident, and even if I were to make a finding that the marriage ended as a result of injuries suffered by the husband in the accident, that would not be the result of any injury to [Ms Avery] in the accident.
If [Ms Avery's] husband was unable to continue practice as a result of injuries he suffered in the accident, as [she] said, the loss of that income would be the result of his injuries, for which he would be entitled to compensation, and not [Ms Avery].
Accordingly, I consider that [Ms Avery's] average income from AJW in the two financial years before the accident, is not a proper basis for the calculation of the plaintiff's loss of income earning capacity. (footnotes omitted)
The judge accordingly rejected Ms Goldfinch's evidence and said:[48]
For the reasons referred to in [216] ‑ [225] above, I find that Ms Goldfinch's figures significantly inflate the portion of the plaintiff's income which is said to derive from her work as a physiotherapist. I do not accept Ms Goldfinch's calculations of income reflect the plaintiff's income earning capacity from her work as a physiotherapist.
This finding puts me in the position of having to make what I can of the other evidence led at trial, in order to arrive at a fair assessment of the plaintiff's loss under this heading.

Work as a physiotherapist

[48] Primary decision [226] - [227].

The judge found that it was likely that if Ms Avery had not been injured in the accident, then, in the event of the breakdown of her marriage and corresponding business partnership, she would have practised physiotherapy independently rather than as an employee.[49]
[49] Primary decision [229].
Prior to the accident, Ms Avery was working 15 ‑ 20 hours over two days a week. The judge accepted that if it were not for the accident, Ms Avery would have worked three days a week from January 2015 until the end of 2016, and thereafter four days a week.[50]
[50] Primary decision [197].
The judge accepted that Ms Avery would need to re-register as a physiotherapist, and that this could be achieved by 30 June 2019, ie, within the six‑month period after 31 December 2018 which the judge had allowed for Ms Avery to build up her physical capacity to resume the work of a physiotherapist.[51]

Assessment of past loss of earning capacity

[51] Primary decision [199].

The judge found that it was reasonable to assess Ms Avery's income for two, three and four days a week as follows:[52]
[52] Primary decision [236], see also [233] - [235].

2 days

3 days

4 days

Average Gross

$63,974

$31,987 x 3

= $95,961

$31,987 x 4

= $127,948

Average non-car expenses

$13,949

$13,949 + (20% x

$31,987) = $20,346

$13,949 + (20% x

$63,974) = $26,744

Average net income before tax being average gross income less average non-car expenses

$50,025

$75,615

$101,204

Total income before tax less $12,172 car expenses

$37,853

$63,443

$89,032

Tax payable

$3,849

$12,166

$20,482

Annual income after tax[53]

$46,176 (rounded to the nearest $1,000: $46,000)

$63,449 (rounded to the nearest $1,000: $63,000)

$80,722 (rounded to the nearest $1,000: $81,000)

[53] Rounded to the nearest $1,000 by the judge to calculate the past loss of income: primary decision [237].

The judge made the findings based on (1) documentary evidence of the income of the physiotherapy business between the 2010 ‑ 2011 and 2013 ‑ 2014 financial years,[54] (2) average car expenses, deducted from gross income, being $12,172,[55] (3) a finding that the rate of expenses (excluding car expenses) was 20% of Ms Avery's gross income,[56] and (4) marginal tax rates at the relevant time.[57]
[54] Primary decision [230].
[55] Primary decision [232].
[56] Primary decision [234].
[57] Primary decision [235].
The judge calculated the estimate of Ms Avery's past loss of income from the date of accident to 30 June 2019 as follows:[58]
[58] Primary decision [238].

Period of working[59] Number of days working Calculation of pay

15 November 2014 - 31 December 2014 2 days 2 days a week at $46,000 per annum/$885 per week x 6.5 weeks
= $5,752

1 January 2015 - 31 December 2016 3 days 3 days a week at $63,000 per annum x 2 years = $126,000

1 January 2017 - 30 June 2019 4 days 4 days a week at $81,000 per annum x 2.5 years = $202,500

Total (15 November 2014 - 30 June 2019) $334,252
[59] It appears the judge based these dates on the evidence that Ms Avery was working 15 - 20 hours a week at the time of the accident (primary decision [177] - [178]), and Ms Avery's pleading regarding her expected future working days (particulars of damages pursuant to r 45(c)(3) District Court Rules, par 1.4; BB 91).

Therefore, the judge estimated Ms Avery's past loss of income earning capacity up to 30 June 2019 to be $350,000.[60]

Loss of future income earning capacity

Global award

[60] Primary decision [238] - [239].

It was not in dispute, and the judge found, that the usual retirement age for a woman of the plaintiff's age would be 67 years, and the plaintiff's life expectancy would be 84.25 years.[61]
[61] Primary decision [16].
However, the judge said that given her earlier findings, she would make 'no calculation' for loss of future earning capacity.[62]
[62] Primary decision [240]. The judge found the plaintiff was physically able to return to work as a physiotherapist at the latest by 30 June 2019, and that she would have obtained her registration to practise as a physiotherapist by then: primary decision [92], [199].
The judge nevertheless found it appropriate to make a 'global award' of $150,000 to allow for the prospect that Ms Avery 'may have had difficulty re-establishing a practice after a significant time out of practice … that she may be required to seek work as an employed physiotherapist and suffer from a likely diminishment of her competitiveness in the workforce as a result of the length of time she had been out of the workforce as a result of those injuries'.[63]
[63] Primary decision [241] - [242].
The judge said that if, contrary to her findings, she had concluded that Ms Avery had been unable to work in the future as a physiotherapist, she would have allowed the claim at the rate of $81,000 net per annum (the four‑day week amount) for a period of 11 years to age 67. This would result in a discounted figure of $638,847 which she would further have discounted by 5% to take into account the contingencies of life. This would have resulted in an award of approximately $607,000.[64]

Superannuation

[64] Primary decision [243].

The judge made no finding for past loss of superannuation on the basis that, as Ms Avery worked in a self-employed capacity, she would not have received superannuation as an employee.[65]
[65] Primary decision [245].
The judge also said:[66]
The prospect that the plaintiff may have been unable to re‑establish her practice and would need to seek employment as a physiotherapist, with a resultant payment of superannuation, is taken into account in assessing the global amount [$150,000 for loss of future earning capacity].

Travel expenses

[66] Primary decision [246].

The judge found Ms Avery could claim travel expenses for necessary treatment at a rate of 46 cents per kilometre.[67]
[67] Primary decision [290] - [291].
The judge found, based on Ms Player's submissions and Skelton v Collins,[68] it was not reasonable to claim travel expenses to visit the same general practitioner in Joondalup after Ms Avery moved to Halls Head, which was a round trip of 200 km. Her Honour limited the award for each visit to the general practitioner to 40 km per round trip.[69] The judge found, and it was not disputed by the defendant, that it was reasonable to claim travel expenses to visit her general practitioner for the time she briefly lived in Mosman Park.[70]
[68] Skelton v Collins [1993] QSC 422.
[69] Primary decision [291] - [293].
[70] Primary decision [294].
The judge disallowed the travel costs to one physiotherapist, as her Honour found there was no evidence to suggest it was reasonable to attend the particular physiotherapist which was far from her home.[71] The judge did not allow the travel costs to the other physiotherapist as the physiotherapy was not attributable to injuries suffered in the accident.[72]
[71] Primary decision [281], [295].
[72] Primary decision [280], [295].
The judge found it was reasonable for Ms Avery to see the same psychologist she saw from April 2015 until January 2018, even after moving house further away.[73]
[73] Primary decision [296]. The judge found earlier that Ms Avery was more likely than not fully recovered from the psychiatric injuries from the accident by January 2018: primary decision [145].
The judge awarded $9,387 for past travel expenses.[74]
[74] Primary decision [297] - [298].
The judge also awarded $3,000 for future travel expenses to pain specialists and a general practitioner.[75]

Interest on past loss

[75] Primary decision [299].

The judge found that Ms Avery's income protection policy contained terms to the effect that:[76]
1.The person entitled to the benefit of the policy will be paid a monthly benefit if the person insured (who is usually but not necessarily the same person) is totally disabled through injury or sickness.
2.The person insured is totally disabled if, because of an injury or sickness, he or she is unable to perform at least one income‑producing duty of his or her occupation, is not working and is under the regular care and attendance of a medical practitioner.
3.The monthly benefit payable is based on a percentage (up to 75%) of the person insured's average income when the policy was applied for and if the information given at that time is correct, the amount would not go down if the person insured's actual income goes down.
4.The benefit will not be reduced by any amounts which are received from other sources such as worker's compensation, social security, other disability policies or superannuation.
[76] Primary decision [308].
In the context of the plaintiff's income protection policy, the judge referred to Batchelor and said:[77]
Essentially then the question of whether [to exercise] the discretion to award interest on the past loss of earnings depends on the level of connection between the payment and the lost income and whether it can be described as too collateral or remote to be taken into account when considering whether the plaintiff has suffered any practical detriment by the loss of earnings.
[77] Primary decision [307], referring to Batchelor.
The judge found, that unlike in Batchelor, there was no requirement under Ms Avery's income protection insurance policy to repay the amount received to the insurer. The judge also found that the amount to be paid was not attached to the policy holder's actual income earning capacity, and did not reflect Ms Avery's income earning capacity as a physiotherapist.[78]
[78] Primary decision [308] - [309].
The judge accordingly allowed interest and adopted half the applicable rate of interest whilst the losses were accruing, and the full rate of interest when the losses were complete.[79]
[79] Primary decision [304], [311]. The applicable rate of interest under s 32 of the Supreme Court Act is 6%: primary decision [304].

Ms Player's appeal - grounds of appeal, the parties' submissions and disposition

Ground 1 - interest

Ground 1 alleges, in effect, that the learned trial judge was wrong in law, alternatively wrong in the exercise of her discretion, in awarding Ms Avery the sum of $90,531.00 in respect of interest on past economic loss in circumstances where that calculation was not based on her actual financial loss, by reason of the income protection policy payments.

Ms Player's submissions

Ms Player submitted that the judge erred in distinguishing Batchelor.[80] Ms Player submitted that, in Haines v Bendall,[81] the court upheld Batchelor in determining that no interest should be payable on past lost earnings which had been replaced by payment of worker's compensation.[82] Ms Player submitted, in effect, that the approach in Haines should have been followed.[83]
[80] Appellant's submissions, pars 1 - 11; WB 7 - 10.
[81] Haines v Bendall (1991) 172 CLR 60.
[82] Appellant's submissions, par 14; WB 10.
[83] Appellant's submissions, pars 13 - 14, 19; WB 10, 12.
Ms Player submitted that the Court in Haines found, in effect, that when a person receives the benefit of payment for non-economic loss before judgment, it must be taken into account in ascertaining the amount on which interest should be awarded. That is so even if the payment was compensation for future loss and damage, and that not accounting for it would not conform to the compensatory principle that the award of damages and interest should restore, rather than improve, the plaintiff's condition.[84]
[84] Appellant's submissions, par 18; WB 11 - 12, citing Haines (72 - 73). The payment in Haines concerned a statutory worker's compensation payment.
Ms Player submitted, in effect, that Haines is authority for the proposition that when a plaintiff 'enjoys' a sum of money for personal injury, whether repayable or not, the court has held that the discretion to award interest should not be exercised in respect of that money.[85] Ms Player submitted that Haines has been followed in several Australian jurisdictions to the same effect.[86]
[85] Appellant's submissions, par 19; WB 12.
[86] Appellant's submissions, pars 20 - 22; WB 12 - 13.
Further, Ms Player submitted:
1.interest may be awarded on 'real' and not theoretical past losses;[87]
2.the power to award interest is discretionary, the exercise of which is reviewable by appellate courts;[88]
3.the discretion of Western Australian courts to award interest, under s 32 of the Supreme Court Act 1935 (WA), must be exercised in accordance with legal principle;[89] and
4.the discretion must be exercised so that an award of interest on damages for personal injury should do no more than assist in the restoration of a plaintiff to the position in which they would have been but for the defendant's negligence.[90]

Ms Avery's submissions

[87] Appellant's submissions, par 15; WB 10 - 11, citing Fire & All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427, 432.

[88] Appellant's submissions, par 16; WB 11, citing Bennett v Jones [1977] 2 NSWLR 355, 375, House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

[89] Appellant's submissions, par 17; WB 11, citing Cullen v Trappell (1980) 146 CLR 17.

[90] Appellant's submissions, par 17; WB 11, citing Haines (67), Province Leader of the Oceania Brothers v Lawrence [2021] WASCA 77 [150].

Ms Avery submitted, in effect, that the judge was correct for the reasons she gave.
Ms Avery submitted that there is no preclusion of or presumption against an award of interest if private insurance benefits have been paid.[91] Ms Avery submitted that neither Batchelor or Haines is authority for the principle that the discretion to award interest should not be exercised where a plaintiff 'enjoys' a sum of money in respect of personal injury.[92]
[91] Respondent's submissions, par 20; WB 21.
[92] Respondent's submissions, par 27; WB 22.
Ms Avery submitted that, in Batchelor, the court held, with reference to the relevant statute, that it was not appropriate to award interest on damages lost before trial that were replaced by statutory worker's compensation payments. Ms Avery submitted that there was no similar intention in any legislation or the insurance policy under which the payments to Ms Avery were made.[93]
[93] Respondent's submissions, pars 21 - 23, 28; WB 21, 22, citing primary decision [308] - [309]; Batchelor (453), (455).
Ms Avery submitted that, in Haines, the High Court found that the statutory worker's compensation served the same purpose as an award of damages at common law, and that the applicable worker's compensation legislation provided that no payment was to be retained in the event of an award of common law damages.[94]
[94] Respondent's submissions, pars 29 - 30; WB 22 - 23, citing Haines (69), (72).

Ms Avery submitted that there is no basis to assert that the private insurance payments here were intended to replace an award of common law damages.[95]
[95] Respondent's submissions, par 31; WB 23.
Ms Avery submitted that, in Manser v Spry,[96] the court held that if an employee receives benefits as an insurance against misfortune, the benefit is to be enjoyed by the beneficiary experiencing misfortune without reducing the amount of damages to which he or she is entitled.[97] Ms Avery submitted, in effect, that, in Batchelor, Gibbs CJ found that the question is whether the receipt of employer benefits should be taken into account in deciding whether interest should be awarded.[98]
[96] Manser vSpry (1994) 181 CLR 428.
[97] Respondent's submissions, par 35; WB 23, citing Manser (435).
[98] Respondent's submissions, par 36; WB 23, citing Batchelor (453).
Ms Avery submitted that the judge's position is consistent with other authorities regarding the award of interest where an injured person has received benefits from a private insurance policy, some of which were expressly distinguishable from Batchelor.[99]
[99] Respondent's submissions, pars 44 - 49; WB 24 - 25, citing Wolgast v Connolly's News [2008] QSC 97 [49] ‑ [52]; New South Wales v Davies (1998) 43 NSWLR 182, 194; Allen v O'Donnell [2021] QSC 63 [91] and Graham v Baker (1961) 106 CLR 340, 343.
Ms Avery submitted that none of the authorities cited by Ms Player support a finding that payments to a claimant under a private insurance policy reduce a claim of interest.[100] Ms Avery submitted, in effect, that the judge's view of the 'fundamental differences' between damages awarded and private insurance payments is correct; insurance payments are effected by the plaintiff's own money which is distinct from legal redress.[101]

Disposition - interest

[100] Respondent's submissions, pars 50 - 62; WB 25 - 27, citing Evans v Port of Brisbane Authority (1992) Aust Torts Reports 81-169; Evans v Port of Brisbane Authority (1992) Aust Torts Reports 81-181; Jackson v Reid (1993) Aust Torts Reports 81-214; Firth v Sutton (No 2) [2010] NSWCA 109; Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (No 29) [2021] NSWSC 483 [24]; Drazic v Churcher [1992] SASC 3654.

[101] Respondent's submissions, par 59 - 60; WB 26 - 27, citing The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Redding v Lee (1983) 151 CLR 117, 125.

An award of interest is to compensate the plaintiff for loss or detriment by reason of being kept out of the money owed to the plaintiff between the date of injury and the time of judgment.[102] In Batchelor and Haines, the High Court held, in effect, that the statutory workers compensation payments received by the plaintiff in those cases were to be taken into account in assessing pre‑judgment interest. The effect of the payments was that the plaintiffs in those cases were not kept out of money during the period between the date of injury and the date of judgment.
[102] Batchelor (455); Haines (66).
In Batchelor, Gibbs CJ (Aickin, Wilson & Brennan JJ agreeing) said that the statutory weekly payments in respect of lost earning capacity were not completely collateral or too remote to be taken into consideration in deciding whether the plaintiff had suffered a detriment which should be remedied by an award of interest.[103] In Batchelor, Gibbs CJ continued:[104]
The intention of the legislation is to provide compensation to take the place of the earnings lost by a worker as a result of an injury suffered in certain circumstances, and to enable the employer who pays the compensation to be recouped if the injured workman obtains damages. Clearly the advantage given to a workman by this legislation is not conferred upon him with the intention that he may retain the compensation even if he enforces his right to damages, and since the amount received as compensation is repayable to the extent to which damages are recovered the fact that the injured worker has received compensation will not relieve the tortfeasor who caused the injury of liability. That however does not mean that any advantage or disadvantage which results to the injured worker, and which is relevant in some other way to the assessment of damages, should be disregarded as collateral or remote. The legislation has treated the payment of compensation and of damages in respect of any one injury as closely related, and the fact that the lost earnings have been replaced by compensation paid under a statutory scheme whose very purpose is to provide money to take the place of the lost wages should be regarded when the court comes to consider whether a plaintiff has suffered any practical detriment by the loss of the earnings.
…
In those circumstances, when the plaintiff who has lost earnings has received compensation instead, he has not been out of pocket by reason of the failure to pay him damages, even though the compensation is repayable when the damages have been received. … it would therefore not be right to award interest in respect of that portion of the award which represents damages for earnings lost before trial but replaced by payment of workers' compensation. … The interest is awarded to compensate the plaintiff for the detriment that he has suffered by being kept out of his money …
[103] Batchelor (453).
[104] Batchelor (454 - 455).
In Harris v Commercial Minerals Ltd,[105] the High Court, with reference to Manser,[106] said that where legislation provides for payments in respect of an injury and is silent as to whether those payments are deductible from any subsequent award of damages in respect of that injury, any one of three matters may indicate whether the legislature intended that a deduction from an award of damages should be made. Those matters are (1) the financial source of the benefit, (2) the presence of a provision which requires the repayment of the statutory benefit if damages are awarded and (3) the nature of the benefit. With respect to the second factor, the court said:[107]
If a legislative scheme provides for employees or for employers and employees to make contributions to fund benefits payable in respect of personal injury, there is a strong ground for concluding that the legislation did not intend that the benefit should be deductible from an award of damages for that injury. Such a scheme is to be likened to a personal injury insurance policy, the proceeds of which are not ordinarily deductible from an award of damages for an injury covered by the policy. (emphasis added) (footnote removed)
[105] Harris v Commercial Minerals Ltd (1996) 186 CLR 1, 16.
[106] Manser (436).
[107] Harris (17).
Guided by similar considerations, the courts have held that temporary payments received by a plaintiff from a superannuation fund or policy were independent benefits which the plaintiff was entitled to keep and ought not be deducted from his or her award for past economic loss or brought to account in calculating interest.[108]
[108] Evans v Port of Brisbane Authority (61,380 ‑ 61,381), (61,383); New South Wales v Davies (1998) 43 NSWLR 182, 194; Wolgast [50] ‑ [51]; Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (No 29) [2021] NSWSC 483 [20] ‑ [24].
The authorities referred to in the previous paragraph are persuasive and, with respect, correct. In this case, Ms Avery's entitlements under the income protection policy were contractual in nature on the terms referred to in [67] above. Her right to recover under the policy was the product of a private contractual arrangement, entirely unconnected with any compensation to which she was entitled from Ms Player. Had, hypothetically, Ms Avery been awarded damages shortly following the accident, she would have received, and kept, the payments under the policy in any event. The fact that she only received damages in due course via the judgment in the primary proceedings means that she was kept out of the money to which she was entitled from Ms Player up to the time of the judgment. Interest is payable for the period for which she was kept out of the money. Ground 1 should be dismissed.

Ground 2 - future loss of earning capacity

Ground 2 alleges the learned trial judge was wrong in law or in the exercise of her Honour's discretion in awarding Ms Avery $150,000 for future economic loss on the basis that such a determination was contrary to her findings that Ms Avery was fit for her pre-accident employment, and without providing any or any proper reasons for doing so.

Ms Player's submissions

Ms Player submitted that the judge (at [239]) awarded damages for past economic loss for the period 15 November 2014 to 30 June 2019 and in that regard her Honour made a six‑month allowance (from 31 December 2018 to 30 June 2019) for Ms Avery to re-establish herself in her practice. Ms Player also submitted that the judge held, in effect, that no provision for future loss of income earning capacity should be made given her finding that Ms Avery had the capacity to resume work as a physiotherapist for four days a week (as claimed) after 30 June 2019.[109]
[109] Appellant's submissions, pars 23 - 27; WB 14, citing primary decision [92], [145] ‑ [146], [204], [239] ‑ [240].
Ms Player submitted, in effect, that by making a global award of $150,000 for Ms Avery's difficulty in re-establishing a practice, the judge effectively contradicted the findings in the previous paragraph and did not provide adequate reasons for the global award.[110]

Ms Avery's submissions

[110] Appellant's submissions, pars 28 - 30; WB 15, citing primary decision [241] - [242].

Ms Avery submitted that in awarding $150,000 for future loss of earning capacity the judge awarded damages to allow for the prospect that over the next 11 years she may (1) have had difficulty re‑establishing a practice after a significant time out of practice and (2) be required to seek work as an employed physiotherapist and suffer from a likely diminishment of her competitiveness in the workforce as a result of the time that she had been out of practice.[111]
[111] Respondent's submissions, par 65; WB 27 - 28.
Ms Avery submitted there is no contradiction between the judge's findings and the global award for future loss of earning capacity.[112]
[112] Respondent's submissions, par 68; WB 28.
Ms Avery submitted that the judge at primary decision [187] accepted the expert evidence of Mr Parry regarding Ms Avery's barriers to employment, which were not challenged at trial nor in this appeal.[113] Ms Avery also submitted that the judge's reasons were adequate.[114]

Disposition

[113] Respondent's submissions, par 72; WB 28 - 29.

[114] Respondent's submissions, pars 73 - 76; WB 29.

The findings by the judge are referred to in [55] - [58] and [60] above. Relevantly, the primary judge found that:
1.The brachial plexus injury did not prevent Ms Avery from returning to her occupation as a physiotherapist, working up to four days a week, by 30 June 2019 at the latest.[115]
2.To the extent that Ms Avery suffered any ongoing psychiatric symptoms which might prevent her working as a physiotherapist having recovered from the brachial plexus injury, they were not causally connected to the injuries suffered in the accident.[116]
3.The lower back and cervical spine pain suffered by Ms Avery as a result of the accident did not prevent Ms Avery from working in her pre-accident occupation.[117]
[115] Primary decision [92].
[116] Primary decision [146].
[117] Primary decision [168.2].
The primary judge made findings, and assessed damages, as to loss of earning capacity for the period to 30 June 2019 (referring to this as Ms Avery's 'past loss of income earning capacity').[118] Then, under the heading '[l]oss of future income earning capacity',[119] the primary judge stated:
[240]It follows from my findings that I make no calculation for future loss of income earning capacity.
[241]I do, however, consider it appropriate [to] make a global award to allow for the prospect that the plaintiff may have had difficulty re-establishing a practice after a significant time out of practice as a result of her injuries, that she may be required to seek work as an employed physiotherapist and suffer from a likely diminishment of her competitiveness in the workforce as a result of the length of time she had been out of the workforce as a result of those injuries.
[242]In all the circumstances I consider an appropriate global award for future loss to be $150,000, without any further discount for contingencies.[120]
[118] Primary decision [173] - [239].
[119] In context it is apparent that the primary judge used this expression to describe the period from 1 July 2019 rather than post-trial.
[120] Primary decision [240] - [242].
This, in substance, constituted the whole of the primary judge's material reasoning for the award of $150,000 for loss of future income earning capacity. However, the primary judge went on to make a provisional assessment of Ms Avery's loss of future income earning capacity on the basis that, contrary to her Honour's findings, Ms Avery was permanently unable to return to work as a physiotherapist. Her Honour arrived at a provisional allowance of $607,000.[121]
[121] Primary decision [243].
In substance, Ms Player contends that the judge erred in two respects:
1.Making an allowance for future economic loss which was contrary to her finding that Ms Avery had suffered no future economic loss having regard to her recovery from the brachial plexus injury by 31 December 2018, and the further allowance of six months to 31 June 2019 in order build up her general level of fitness and obtain registration again as a physiotherapist.
2.Failing to give adequate reasons.
In our view, the first alleged error is not made out. The judge did not find that Ms Avery had suffered no future economic loss. When the judge's findings referred to at [55] ‑ [58] and [60] above are read as a whole, they were to the effect that even after 30 June 2019, at the age of 56 and having been out of the workforce for over four years, there remained the real prospect that Ms Avery would have had difficulty in re‑establishing her private practice and that she might need to work, at least for a period of time, as an employed physiotherapist at (it may be inferred) a lesser remuneration than she would have received as a sole practitioner.
The finding at [92] of the primary reasons was concerned with the period during which the symptoms of Ms Avery's brachial plexus injury physically prevented her from working as a physiotherapist. The finding at [241] of which Ms Player complains was concerned with the economic effect of being out of the workforce. There is no inconsistency between the two findings. The judge simply recognised that the economic effect of Ms Avery being out of the workforce may extend beyond the period of time during which Ms Avery's brachial plexus injury physically prevented Ms Avery from working as a physiotherapist.
As to the second alleged error, in our respectful view her Honour's reasons were not legally adequate.[122] In evaluating the adequacy of reasons for decision the critical question is whether the essential path of reasoning to the impugned conclusion is disclosed in sufficient detail and with sufficient certainty to meet the twin objects that: (1) the litigant knows why he or she was unsuccessful; and (2) an appeal court may determine whether the decision involved appellable error.[123]
[122] See, eg, Joyce v Anderson (2020) 91 MVR 334 [80] ‑ [81]; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27], [28].
[123] Browne v Browne [2019] WASCA 1 [80], [86]; Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 [182]; Pave Wealth Services Pty Ltd v Jones [2021] WASCA 7 [121]; L v P [2022] WASCA 40 [101].
As was stated in Browne v Browne:
The principles relevant to an evaluation of the adequacy of reasons are well established and include the following:
(1)Reasons for decision need not be lengthy or elaborate.
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3)It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires.
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.[124] (citations omitted)
[124] Browne v Browne [80]. See also: Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112]; Wilson v Arwon Finance Pty Ltd [181]; L v P [100]; Greenslade v Hiew [2022] WASCA 47 [42].
As to the last point, the authorities accept that the content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.[125] In the present case the question of adequacy arises as to an assessment of damages. In that context it is necessary to recognise that:
The assessment of damages, whether by a judge or a jury, does sometimes, of necessity, involve what is guess work rather than estimation.[126]
[125] Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 [56]; DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 [32].
[126] Jones v Schiffman [1971] HCA 52; (1971) 124 CLR 303, 308.
That is particularly the case where (unlike the present appeal) the relevant award is for non-pecuniary loss. In this respect it should be observed that the quotation in the preceding paragraph was in the context of assessing the prospects of remarriage of a claimant in a fatal accident claim. More generally, mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can.[127] But, in many cases, damages are 'no more than an approximation lacking in mathematical or economic accuracy or sufficiency'.[128]
[127] Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 83.
[128] Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1981] HCA 3; (1981) 145 CLR 625, 636.
Where this is the case it is to be expected that a trial judge's reasoning process will be less developed and more imprecise than in other areas in which judicial reasons are required and provided. So, for example, in PKT Technologies Pty Ltd v Peter Vogel Instruments Pty Ltd mere sparseness of reasoning in arriving at an assessment of damages for loss of a commercial opportunity did not warrant appellate intervention.[129] That is consistent with appellate review more generally where there is an appeal concerning an assessment of damages. As Murphy JA (Pullin & Newnes JJA agreeing) stated in Wainwright v Barrick Gold of Australia Ltd:
An assessment of damages has many of the characteristics of a discretionary judgment. Generally speaking, an appeal from an assessment of damages for non-economic loss in relation to personal injuries from a judge sitting without a jury is to be determined in the same manner as an appeal from the exercise of discretion by a trial judge. An error must be identified within the terms of House v R. Even in relation to economic loss, there is a similar need for appellate restraint in review of the past and future hypotheticals of damages for lost earning capacity.[130] (citations omitted)
[129] PKT Technologies Pty Ltd v Peter Vogel Instruments Pty Ltd [2019] FCAFC 216; (2019) 376 ALR 55 [1], [147] - [155].
[130] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 [88].

The primary judge's reasons for the $150,000 award on account of loss of future income earning capacity provide for two matters. First, her Honour considered it appropriate not to perform a calculation but instead to provide for a global award (see primary decision [240] ‑ [242]). In principle that is acceptable in an appropriate case.[131] Second, her Honour considered that - while Ms Avery's injuries did not prevent her from working as a physiotherapist after 30 June 2019 - Ms Avery may have difficulty in re-establishing a practice and, in addition, may therefore be required to seek out work as an employed physiotherapist. The global award was to compensate for diminution in income as a consequence of those matters and also for a likely diminishment in competitiveness in the workforce as a result of the length of time that Ms Avery had been out of the workforce as a result of her injuries (see primary decision [241]).
[131] See eg Laird v Smith [1996] ACTSC 50 [28] - [30].
There is, however, no further factual finding or reasoning by the primary judge in support of the ultimate allowance of $150,000. For example, there is no factual finding as to the following material matters:
1.By when, if at all, Ms Avery would be able to re-establish her practice as a physiotherapist such that it was commensurate with her pre-accident practice - and the extent to which that might affect Ms Avery's income from her practice in the meantime.
2.The level of income Ms Avery was likely to be able to derive as an employed physiotherapist while she re-established her practice as a physiotherapist.
At the appeal hearing counsel for Ms Avery was asked to identify the primary judge's pathway of reasoning in arriving at the figure of $150,000. Two possibilities were suggested. First, counsel said that her Honour had, intuitively or applying some degree of common sense, arrived at a figure based on the amount allowed for past loss.[132] Second, really developing the first point, counsel said that so far as the $350,000 award for past loss of earning capacity was based on a period of four and a half years there had been an allowance of $150,000 as representing in the vicinity of somewhere between two and two and a half years' worth of loss during which Ms Avery would have worked to re-establish her practice.[133]
[132] Appeal ts 18.
[133] Appeal ts 19 - 20.
Neither matter as suggested by counsel for Ms Avery is expressly mentioned in the primary decision. Nor, in our opinion, is it possible to infer either matter from the primary decision.
It is inherently unlikely that the primary judge would have worked from the amount awarded for past loss of earning capacity when, at primary decision [243], her Honour made a provisional assessment of Ms Avery's loss of future income earning capacity. If one was to reverse engineer the sort of calculation the primary judge made in determining the provisional assessment of $607,000 it would suggest that in coming to a global award of $150,000 her Honour might have allowed for a diminution in future net income of approximately $20,000 per annum over Ms Avery's future working life of 11 years.[134] It is, however, impossible to conclude that this is how the primary judge arrived at the award of $150,000. To do so would be no more than speculation. In any case, so far as it is possible for an appellate court to give its own reasons in support of the determination arrived at by a trial judge, doing so is no substitute for the requirement that the trial judge's reasons should disclose the intellectual process that led to the decision.
[134] Calculated as follows: (1) Step 1 - adjust the $150,000 for the 5% discount for contingencies of life; (2) Step 2 - annualise the resulting gross figure of $157,894.73 over 11 years based on the multiplier of 7.887 (the primary judge having used this multiplier figure when discounting at 6% per annum over 11 years). The resulting annual figure is $20,019.61 per annum which rounds to $20,000 per annum.
We accept that the primary decision discloses that the award of $150,000 was reached by estimation rather than calculation. We consider, nevertheless, that the primary judge did not give adequate reasons to explain why her Honour awarded $150,000 in damages on account of the loss of future income earning capacity inherent in the matters referred to at primary decision [241]. The primary judge did not identify her findings on material factual matters that informed the kind of loss that was to be compensated (see [107] above). Nor did her Honour expose her reasoning process to explain how the matters referred to at primary decision [241] justified an ultimate award of $150,000. There is an absence of factual findings on material matters and expressed reasoning so as to inform an understanding of what estimation or guess work the primary judge adopted and why her Honour arrived at the figure of $150,000. In those critical respects the assessment of $150,000 is insusceptible to appellate review.
In all the circumstances, making due allowance for the nature of the task undertaken by the primary judge and that this was not a case where the loss may be assessed with precision, we consider there was a failure to provide legally adequate reasons for the award of $150,000.
A failure to provide legally adequate reasons will not always amount to appellable error. This court will only intervene where the inadequacy or insufficiency in the reasons is such as to give rise to a miscarriage of justice.[135] In considering the question of whether the inadequacy gives rise to a miscarriage of justice we have had regard to the appellate restraint that must be accorded to an assessment of damages (see [105] above). In that respect counsel for Ms Avery submitted that global awards, by their nature, are not precise; and, moreover, that Ms Player had not established that the $150,000 was so far outside the bounds of reasonableness that an appellate court should step in and either substitute a different award or remit the matter to the primary judge for reassessment.[136] There is a good deal of force in those submissions. However, this is not a situation where the primary judge has merely allowed an uplift to provide for identified contingencies. That, in our view, would have been a permissible way to have proceeded. Rather, on its face the amount of the award is approximately 25% of the provisional allowance that the primary judge arrived at for Ms Avery's loss of future income earning capacity on the basis that Ms Avery was permanently unable to return to work as a physiotherapist. As a matter of impression we find it difficult to reconcile that proportionate allowance with what is being compensated for in terms of primary decision [241]. That is all the more so given the finding that Ms Avery was not prevented from returning to work as a physiotherapist after 30 June 2019. There is, in our view, at least a real risk that there has been some mistake of fact or misapplication of principle in arriving at the award of $150,000. That suffices to establish that the failure to provide legally adequate reasons gives rise to a miscarriage of justice.
[135] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [34]; Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [103(g)].
[136] Appeal ts 17.
We would, for these reasons, uphold ground 2 of the appeal and allow the appeal to that limited extent.
Ms Player sought an order setting aside the award of $150,000 on account of loss of future income earning capacity. No consequential orders were contemplated. It would, however, be unjust to deprive Ms Avery of any award on account of loss of future income earning capacity. On the findings of the primary judge there should be some award. If, on delivery of these reasons, the parties are unable to agree a figure, the parties should provide further submissions so that this court may fix an amount in substitution of the $150,000.

Conclusion

The appeal should be allowed in respect of ground 2.

Ms Avery's cross-appeal - the grounds and the issues

Ground 1 - past loss of earning capacity

Ground 1 of the cross-appeal alleges that the judge erred in fact and law at [239] in assessing past loss of earning capacity at $350,000, as:
A.The judge erred in fact and law in finding (at [210]) that had the accident not occurred, it is more likely than not the business relationship between Ms Avery and her husband would have ended.
B.Further and in the alternative to A, the judge erred in fact and law insofar as her Honour implicitly found (at [210]) that the business relationship between Ms Avery and her husband would have come to an end because the breakdown of their marriage was acrimonious.
C.The judge should have found that the business relationship would have likely continued but for the accident, and that past loss of earning capacity should have been assessed on that basis.
D.The judge erred in fact and law in finding (at [208] and [226]) that Ms Avery's pre-accident income was not a good guide to quantify Ms Avery's loss of earning capacity from her work as a physiotherapist.
E.The judge erred in fact and law in finding (at [212]) that if Ms Avery's husband was unable to continue practice from the injuries he suffered in the accident, the loss of income would be the result of his injuries for which he, not Ms Avery, would be entitled to compensation.
F.The judge should have found that the income Ms Avery would likely have derived from AJW, but for the accident, was a consequence of the tort, and should have used the evidence of Ms Avery's income from AJW prior to the accident to assess past loss of earning capacity.
G.The judge erred in fact and law in finding (at [227]) that her Honour was put in the position of having to make what she could of evidence aside from the expert evidence of Ms Goldfinch the accountant.
H.Further and alternative to G, the judge should have utilised the tax documents comprising exhibits 26A, 26B, 27A, 27B and 28 in assessing what income Ms Avery likely would have derived from the company but for the accident.
I.The judge erred in fact and law (at [168]) in finding Ms Avery's lumbar and cervical spine injuries did not prevent her from working in her pre-accident occupation, or at all.
J.The judge erred in fact and law in finding (at [22] ‑ [23]) that, in effect, Ms Avery failed in her evidence to give an accurate and appropriate description of her job as a physiotherapist.
K.The judge should have found that the lumbar and cervical spine injuries had caused, and continued to cause, incapacity, and hence should have awarded damages for past loss of earning capacity beyond 30 June 2019.

Ground 2 - proper calculation of past loss of earning capacity

Ground 2 of the cross-appeal alleges in effect that, by reason of the matters in ground 1, the judge should have assessed Ms Avery's past loss of earning capacity at $860,000, or alternatively, an amount greater than $350,000.

Ground 3 - future loss of earning capacity due to cervical/lumbar spine injury

Ground 3 of the cross-appeal alleges in effect that, by reason of the matters in ground 1 alleging incapacity from cervical/lumbar spine injury, the judge erred in fact and law (at [240]) in making no calculation for future loss of earning capacity, and should have awarded $1,067,000 instead of the global award of $150,000 for future lost earning capacity.

Ground 4 - past loss of superannuation

Ground 4 of the cross-appeal alleges that the judge erred in fact and law (at [246]) in making no award for past loss of superannuation, and should have awarded $111,000 on the bases that:
1.Ms Avery was a director of AJW through which the business traded.
2.Companies are required by law to make superannuation contributions in relation to both salary payments to directors and directors' fees.
3.The judge should have assessed past loss of superannuation accordingly.

Ground 5 - future loss of superannuation

Ground 5 of the cross-appeal alleges, in effect, that, having regard to the matters in grounds 3 and 4, the judge erred in fact and law (at [246]) in making no separate award for future loss of superannuation, and that the judge should have awarded $127,000.

Ground 6 - travel expenses for travel to general practitioner

Ground 6 of the cross-appeal alleges that the judge erred in fact and law (at [298]) in awarding $9,387 for travel expenses, by limiting Ms Avery's claim for travel to her general practitioner, and should have awarded $12,341 instead. It alleges that the judge erred by:
1.Failing to give adequate reasons.
2.Misapprehending or misapplying the legal principles relating to causation and standard of proof.
3.Failing to take into account relevant considerations, being Ms Avery's reasons for seeing her GP.

Ground 7 - interest on past lost earning capacity, past superannuation and past travel expenses

Ground 7 of the cross-appeal alleges the judge erred in fact and law (at [313]) in awarding $98,000 interest, and should have awarded $202,000, having regard to the matters in grounds 2, 4 and 6.

The relationship between the grounds of the cross‑appeal

It was accepted, in effect, by counsel for Ms Avery that:[137]
1.The success of grounds 2, 3 and 4 of the cross‑appeal were dependent upon the success of ground 1 (and in the case of ground 3, on ground 1I and K in particular).
2.The success of ground 5 was dependent upon the success of grounds 3 and 4, and thereby was also ultimately dependent upon the success of ground 1.
3.Ground 6 was a 'standalone' ground.
4.The success of ground 7 was dependent upon the success of grounds 2, 4 and 6, and thereby, as to grounds 2 and 4, also ultimately depended upon the success of ground 1.

The issues in the cross‑appeal

[137] Appeal ts 21 - 23, 28.

In effect, counsel for Ms Avery submitted that the issues in the cross‑appeal could be characterised as:[138]
1.Whether the judge erred in law in not assessing economic loss on the basis of the income which Ms Avery had derived from AJW (issue 1).[139]
2.Whether the judge erred in fact and law in finding that Ms Avery's lumbar and cervical spine injuries did not prevent her from working in her pre‑accident occupation, or at all (issue 2).[140]
3.Whether the judge erred in awarding $9,387 for travel expenses when she should have awarded $12,341 for travel expenses. It was alleged that the judge erred in allowing travel on the basis of a 40 km round trip to visit a general practitioner after Ms Avery relocated to Halls Head, when her Honour should have allowed for the cost of a 200 km round trip to visit the same general practitioner whom Ms Avery had consulted over the years when residing in Joondalup (issue 3).[141]
[138] Appeal ts 23, 24, 28, 36.
[139] Ground 1 other than ground 1I and K.
[140] Grounds 1I and K.
[141] Ground 6.

The disposition of Ms Avery's cross-appeal

Issue 1

In relation to a claim for lost earning capacity, the plaintiff is compensated for loss of earning capacity and not loss of earnings. The income earned before the injury may be relevant, but only insofar as it may be an evidentiary aid in assessing damages for the loss of the plaintiff's capacity to earn income. A determination must be made as to what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as she would have been in if injury had not been sustained. The plaintiff carries the onus of proving the dual requirements of loss of earning capacity, and the extent to which that loss produces, or might produce, financial loss.[142]
[142] Rayney v The State of Western Australia [No 4] [2022] WASCA 44 [131] ‑ [133].
The grounds in relation to issue 1 were to the effect that the judge erred as a matter of principle in not assessing Ms Avery's past loss of earning capacity by reference to her pre‑accident earnings from AJW. The predicate of the alleged error, as was implicit in Ms Avery's grounds and written submissions, and as explained by counsel at the hearing of the appeal, was, in substance, that Ms Player owed Ms Avery, and breached, a duty of care to avoid economic loss. It was said that Ms Player had a duty to avoid economic loss, which she breached by injuring Ms Avery's husband in the accident, thereby depriving her of the benefit of continued earnings from the operation of AJW and, in particular, the income generated from the psychologist business operated by AJW.[143]
[143] See appeal ts 25 - 26.
The short answer to this is that Ms Avery's case at trial was a conventional personal injuries negligence case in which Ms Avery sued for breach of duty in respect of the personal injuries she suffered as a result of Ms Player's negligence and for losses consequential upon her injuries.[144] Had there been a claim for pure economic loss, issues as to the existence and content of the duty of care, as discussed, for example, in Swick Nominees Pty Ltd v LeRoi International Inc [No 2],[145] would have arisen. Counsel for Ms Avery did not contend otherwise.[146]
[144] Primary decision [1], [3], [11], [15]; statement of claim, pars 2 - 10 and prayer for relief; BB 84 ‑ 87; particulars of damages, pars 1.1, 6.1, 7.1; BB 90, 95, 96.
[145] Swick Nominees Pty Ltd v LeRoi International Inc [No 2] [2015] WASCA 35; (2015) 48 WAR 376 [361] ‑ [367].
[146] Appeal ts 25 - 28.
Ms Avery cannot run a case on appeal that was not run below.[147] Accordingly, the grounds in ground 1 relevant to issue 1 should be dismissed.
[147] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [66] ‑ [67].
One final point should be mentioned for completeness. In her written submissions, Ms Avery sought to rely on authorities in which the break‑up of the plaintiff's marriage had been taken into account in the assessment of damages.[148] However, those cases were not concerned with damages for pure economic loss. They were negligence cases for damages for personal injury at common law, in which the court has taken into account, in the assessment of general damages, the breakdown of the plaintiff's marriage where that has been caused by injuries suffered by the plaintiff as a result of the defendant's tort and the marital breakdown has itself been causative of pain and suffering or further injuries to the plaintiff such as psychiatric injury. The authorities emphasised the two‑tiered nature of the inquiry - whether causation in fact had been established (whether the injuries suffered by the plaintiff as a result of the defendant's wrongdoing had in fact caused the marital breakdown) and if so whether the damage was reasonably foreseeable in accordance with the principles of remoteness.[149]

Issue 2

The judge's finding

[148] Cross-appellant's submissions, pars 53 - 54; WB 49.

[149] Hird v Gibson [1973] Qd R 14, 20 - 22, 26 - 28; Kavanagh v Akhtar (1998) 45 NSWLR 588, 596 - 602; Encev v Encev (Unreported, VSC, 24 November 1997), 21 ‑ 22, 25 ‑ 28, 29 ‑ 34.

The judge, at primary decision [3], said:
[Ms Avery] claimed that her loss of earning capacity was a consequence of the brachial plexopathy injury [sic - brachial plexus injury] and the psychological injury. [Ms Avery] accepted that there was no evidence to support a finding that any other injuries interfered with her capacity to work. (footnote removed)
The judge, having examined the medical evidence in some detail, made the findings at primary decision [168], referred to in [36] and [37] above.

Ms Avery's submissions

Ms Avery submitted that the judge's findings at primary decision [168] were unsupported by reasons.[150]
[150] Cross-appellant's submissions, par 74; WB 52.

Ms Avery also submitted that the judge erred in finding at primary decision [3] that Ms Avery's counsel at trial had conceded that any injuries other than the brachial plexus and psychological injuries had not interfered with her ability to work. Ms Avery said that her (then) counsel's submissions at trial ts 466[151] were taken out of context, and that this is supported by the exchange at trial ts 404.[152] Ms Avery submitted that the concession only related to the 'back' and not the cervical spine.[153] Ms Avery submitted that if the judge interpreted counsel's statement as a concession, she should have clarified it with Ms Avery's counsel at trial.[154]
[151] Cross-appellant's submissions, pars 76 - 77; WB 52.
[152] Cross-appellant's submissions, par 78; WB 52.
[153] Appeal ts 31.
[154] Cross-appellant's submissions, par 78; WB 52.
Further, Ms Avery submitted that as the judge found at primary decision [168] that Ms Avery would continue to suffer back pain from the accident, her Honour should have assessed whether that pain caused future loss of earning capacity.[155] Ms Avery submitted that the judge did not address the evidence to ascertain if the continued pain was a cause of loss of earning capacity.[156]
[155] Cross-appellant's submissions, par 79; WB 52 - 53.
[156] Cross-appellant's submissions, par 80; WB 53.
Ms Avery submitted that the expert evidence of Dr Holthouse and Dr Harper demonstrated that Ms Avery had 'a chronic, relapsing condition', and that Ms Avery's neck pain was 'recalcitrant' and had an adverse impact on work capacity. Ms Avery submitted that the judge should have found that accordingly there was a continuing incapacity for Ms Avery's pre‑accident role as a physiotherapist.[157]

Disposition

[157] Cross-appellant's submissions, pars 88 - 92; WB 54 - 55, citing ts 35, 43 - 44, 50 - 52, 77, 124, 177; exhibit 39B, page 2, exhibit 59B, pages 2, 5.

The judge's reasons were adequate. There was no challenge to the finding that the brachial plexus injury had resolved by 31 December 2018 and was not thereafter an injury incapacitating Ms Avery from work as a physiotherapist. Ms Avery did not point to any evidence that the cervical/lumbar pain itself would be a cause of incapacity after 31 December 2018. Also, counsel for Ms Avery accepted that there was no medical evidence, including from Dr Holthouse, to the effect that Ms Avery's cervical and/or lumbar injuries interfered with her capacity to work as a physiotherapist.[158]
[158] Appeal ts 33, 35.
The report of Dr Harper did not identify the cervical/lumbar pain as an independent source of disability which would preclude Ms Avery from practising as a physiotherapist. The report appears to emphasise Dr Harper's view that Ms Avery's difficulties in using her arms and hands precluded her return to work as a physiotherapist.[159] Further, in his report of physical examination, Dr Harper said:[160]
Posture and agility were normal. She sat through the interview. Her gait is normal. On examination of the lumbar spine there was as [sic] normal range of movement with her hands reaching the floor. Power, reflexes and sensation were normal. She was able to squat and hip flexion while standing was unimpeded. Straight leg raising was normal and on palpation there was no significant lumbar tenderness. Shoulder and neck movements were unrestricted. On examination of the hands grip strength on the right was 6 kg and 4 kg on the left. Sensation was reduced over the 5^th fingers of both hands relative to the radial side of her hand. Reduced sensation was more marked distally in these fingers. [Interossei] muscle strength was clinically reduced. (original emphasis)
[159] Dr Harper's report, pars 8, 9; GB 324.
[160] Dr Harper's report; GB 323.
Mr Parry, in his report, indicated that there were two barriers to re‑employment as a physiotherapist, the first was the need to obtain registration and the second was the 'physical upper limb requirements of the role'.[161]
[161] GB 255.
The judge who heard the case, including the oral submissions, was prima facie better placed than this court to appreciate the significance of the exchange with counsel at ts 446. Having read the oral closing submission as a whole, it is not evident to us, including in the context of the evidence referred to above, that the judge misconceived the effect of that exchange or that there was any requirement for the judge to ask counsel to clarify what he meant. In particular, we are not persuaded that any distinction was sought to be drawn between the 'back', on the one hand, and the cervical spine on the other.
Grounds 1I and K should be dismissed.

Issue 3

The judge's findings

The judge said:[162]
[291][Ms Player] conceded that [Ms Avery] was entitled to recover reasonable travel expenses associated with necessary treatment, and accepted the rate as appropriate. [Ms Player] said, however, that [Ms Avery] should not be allowed the entire cost of travelling to see her general practitioner, Dr Crawford, her psychologist, Mr Elsley, and to physiotherapists, after [Ms Avery] had moved from Kallaroo to Halls Head, being round trips of between 166 and 196 km. [Ms Player] said that [Ms Avery] ought reasonably have transferred to practitioners closer to home, after she moved, relying on Skelton v Collins.
[292]In my view it was not reasonable for [Ms Avery] to continue to attend the same general practitioner in Joondalup in relation to injuries suffered in the accident after [Ms Avery] moved to Halls Head. Her evidence was that it was her preference to continue to see the same general practitioner that she saw after the accident after she had moved home. There was no suggestion that [Ms Avery] would not be able to find a competent general practitioner within the vicinity of Halls Head or its neighbouring suburbs, which might justify travel of nearly 200 km per round trip.
[293]In my view, [Ms Avery's] costs of travel to her GP, currently claimed at 196.6 km, should be limited to a 40 km round trip for each attendance, as a reasonable distance. (footnotes omitted)

Ms Avery's submissions

[162] Primary decision [291] - [293].

Ms Avery submitted that the judge's finding was a departure from the relevant principles of causation and personal injury damages.[163]
[163] Cross-appellant's submissions, pars 125 - 128; WB 59, referring to cross-appellant's submissions, pars 8 ‑ 16; WB 43 - 44.
Ms Avery submitted that the judge found it was Ms Avery's preference to see the same general practitioner she saw after the accident after moving, but her Honour failed to address the reasons for this. The reasons were that she had seen this general practitioner for 15 - 20 years and she liked the quality of his service.[164]

[164] Cross-appellant's submissions, par 129; WB 59, citing primary decision [292]; ts 47 - 48.

Ms Avery submitted that Ms Player did not meet the requisite evidentiary onus, or relevantly cross‑examine Ms Avery on the finding by the judge at [292] to the effect that Ms Avery would not be able to find a competent general practitioner within the vicinity of her new neighbourhood.[165]
[165] Cross-appellant's submissions, par 130; WB 59 - 60, citing ts 115.
Ms Avery submitted that there was no principled basis, nor adequate reasons, for this finding given her extensive relationship with her general practitioner, including his role as the central point of contact for the specialists Ms Avery engaged with after the accident.[166]

Disposition

When [291] ‑ [293] of the primary decision are read as a whole, including in light of the authority referred to in [291], it is evident that her Honour found, in effect, that Ms Avery had not mitigated her loss by consulting a general practitioner within 20 km of her home in Halls Head. Whilst it may be accepted that Ms Avery liked the quality of the service of her general practitioner, her injuries were principally being addressed by specialists, in whose care she would continue irrespective of the identity of the general practitioner. It was open to her Honour to infer that Ms Avery had access to reasonable general practitioner care within 20 km of Halls Head, a residential suburb of the City of Mandurah, and that it was unreasonable to continue to make a round trip of approximately 200 km to the general practitioner at her former address. In our view, her Honour's reasons were adequate, her Honour did not misapprehend or misapply the legal principles, and her Honour did not fail to take into account relevant considerations.

Conclusion

[166] Cross-appellant's submissions, pars 131 - 132; WB 60.

The cross-appeal should be dismissed.

MITCHELL JA:

I agree with Murphy and Vaughan JJA that the cross-appeal should be dismissed, and that ground 1 of the appeal is not established, for the reasons which their Honours give. I also agree that the aspect of ground 2 of the appeal which contends that there was an inconsistency in the trial judge's findings is not established, again for the reasons which their Honours give.

However, I have taken a different view from their Honours in relation to the aspect of ground 2 which contends that the trial judge's reasons for making a global award for future loss were inadequate. In my view, the reasons were adequate.
In making the global award, the trial judge said:[167]
It follows from my findings that I make no calculation for future loss of income earning capacity.
I do, however, consider it appropriate make a global award to allow for the prospect that the plaintiff may have had difficulty re-establishing a practice after a significant time out of practice as a result of her injuries, that she may be required to seek work as an employed physiotherapist and suffer from a likely diminishment of her competitiveness in the workforce as a result of the length of time she had been out of the workforce as a result of those injuries.
In all the circumstances I consider an appropriate global award for future loss to be $150,000, without any further discount for contingencies.
[167] Primary decision [240] - [242].
When her Honour said that she made 'no calculation' for future loss of earning capacity, her Honour evidently meant that she would not assess future loss of earning capacity based on an arithmetical calculation. In my view, it is sufficiently clear that her Honour took the view that the matters to which she referred did not lend themselves to arithmetical calculation, and that she approached the question of future loss of earning capacity on the basis that it was appropriate to provide (in the language of the Full Court of the Australian Capital Territory in Laird[168]) 'some sort of buffer for the injured party which is not arrived at by arithmetical calculation'.[169]
[168] Laird [28] - [30].
[169] Laird [28].
It is important to note that Ms Player does not contend that the amount allowed for future economic loss over the 11‑year period for a person of Ms Avery's age and in her circumstances was not within a reasonable range. It was not contended that the judge erred in principle by applying a global sum as a 'buffer', when the correct and only approach was to undertake an arithmetical assessment.
The fundamental requirement for reasons is to adequately disclose the actual intellectual process which has resulted in a particular determination.[170] In my view, that is what the trial judge's reasons did in this case. The reasons disclose that the global award of $150,000 was reached by broad estimation rather than calculation, having regard to the matters identified in the second paragraph of her Honour's reasons quoted at [150] above. Whether or not that was an appropriate approach (and the ground of appeal does not contend that the approach was not open), the reasons do disclose what the judge did to reach the conclusion.
[170] G v O [2018] WASCA 211; (2018) 53 WAR 393[65].
When undertaking such a broad estimation, without calculation, there is a limit as to the extent to which reasons can elaborate upon the steps by which a particular figure was arrived at beyond identifying the factors which were considered. Courts regularly make intuitive assessments which do not lend themselves to any detailed explanation of logical steps leading to a particular number. For example, courts do this when arriving at an appropriate sentence by a process of instinctive synthesis, in awarding general damages and when assessing a reasonable global amount of costs of a hearing. When a court engages in such a process, there may be no utility in going beyond an identification of the factors which inform the evaluative judgment as to what is reasonable in the circumstances.
The relevant factors informing the trial judge's broad estimation of the global award of $150,000 are identified in the second paragraph of her Honours reasons quoted at [150] above. In my view, that is all that was required to explain the process of broad estimation which the trial judge undertook. To require more elaboration would effectively demand the judge to undertake some kind of calculation to justify the particular figure, when the judge's reasons indicate that this was not the intellectual process which her Honour actually adopted in making the award.
Rather, the process adopted by the trial judge, reflected in her reasons, was one of broad estimation (without calculation) of a global award for loss which may result from the identified contingencies. Ground 2 of the appeal does not contend that this approach of broad estimation was not open, or that the conclusion reached was unreasonable. The requirement for reasons is for an explanation rather than an alteration of the judge's intellectual process. In my view, the judge's reasons adequately explain the actual intellectual process which she undertook.
Therefore, in my view none of the grounds of appeal are established and the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

18 NOVEMBER 2022

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION: PLAYER -v- AVERY [2022] WASCA 147 (S)
CORAM:   MURPHY JA
MITCHELL JA
VAUGHAN JA

HEARD:   9 DECEMBER 2022
DELIVERED          :   9 DECEMBER 2022
FILE NO/S:   CACV 59 of 2021
BETWEEN:   GAIL FRANCES PLAYER
Appellant
AND
ANITA FAY AVERY
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   VERNON DCJ
Citation: AVERY -v- PLAYER [2021] WADC 69
File Number            :   CIV 1269 of 2017

Catchwords:

Negligence - Personal injury - Quantum of damages - Award for future economic loss - Costs - Indemnity certificate under s 10 of the Suitors' Fund Act 1964 (WA) - Turns on own facts

Legislation:

Suitors' Fund Act 1964 (WA), s 10

Result:

Award made for future economic loss
Costs orders made

Representation:

Counsel:

Appellant	:	D R Clyne
Respondent	:	J J Sheldrick

Solicitors:

Appellant	:	Moray & Agnew Lawyers
Respondent	:	JDK Legal Services

Case(s) referred to in decision(s):

Player v Avery [2022] WASCA 147
Nelson v Moorcraft [2014] WASCA 212 (S)

MURPHY & VAUGHAN JJA:

This decision is supplemental to the decision published by this court on 18 November 2022: Player v Avery [2022] WASCA 147 (appeal decision). These reasons are to be read with the appeal decision.
In the appeal decision, the court, by majority, upheld ground 2 of the appeal in relation to future economic loss, and provided the parties with the opportunity to provide further submissions so that this court could fix an amount for future economic loss in substitution of the $150,000 allowed by the primary judge.
The parties provided written submissions and, on 9 December 2022, we heard the parties on this issue, as well as on the issue of costs. The court awarded $76,000 for future economic loss in substitution for the primary judge's figure of $150,000. On 9 December 2022, the court made the following orders:
1.The appeal is allowed in part.
2.The respondent is to pay 50% of the appellant's costs of the appeal, to be assessed if not agreed.
3.The cross‑appeal is dismissed.
4.The respondent is to pay the appellant's costs of the cross‑appeal, to be assessed if not agreed.
5.The judge's orders in CIV 1269 of 2017 dated 2 July 2021 be varied by deleting par 1 thereof and substituting the following:
1.Judgment be entered for the plaintiff in the amount of $771,449.
We said that we would provide written reasons for the orders we made as to the outstanding issues of future economic loss and costs. These are those reasons.

The parties' submissions

Ms Player submitted that an amount for future economic loss beyond the range of $30,000 ‑ $50,000 could not be justified on the primary judge's findings of fact.
Ms Avery's submissions were to the following effect:
1.On the evidence, it could be estimated that the costs of setting up practice again and the operating costs of running a practice would total $72,729.
2.It would be unlikely that Ms Avery could have recouped the set‑up costs and operating costs in the first year of business and, in those circumstances, an allowance of one year's total loss of income would be a fair assessment to compensate Ms Avery for losses incurred while re‑establishing a business. Allowing for some discounting, this figure would be $79,000.
3.In addition, the judge accepted Mr Parry's evidence to the effect that there were significant barriers to employment as a result of Ms Avery's lengthy period of unemployment and her age. Allowance should be made for the fact that, for example, her business might fail, and that she might need time to procure paid employment. It would be reasonable to allow a total of one year's loss of income over the 11‑year period to age 67 to account for periods of unemployment, during which Ms Avery would be required to undertake job‑seeking. She may be in a position of having to seek employment more than once, as there would be no guarantee of continuing employment with one employer. Using the mid‑point of that period, the calculation would be $81,000 x 0.747 (6% deferral factor for five years) = $61,000. Alternatively, the figure would be around $60,000 by converting the total of $81,000 to a weekly loss incurred over 11 years.
4.The addition of $79,000 (point 2 above) and $61,000 (point 3 above) gives $140,000. Given the principle that no precision is required for a global award, this indicates that the primary judge's assessment of $150,000 was fair and reasonable in the circumstances of this case.
5.Alternatively, Ms Player seeks a substituted award of $140,000.

Disposition

As indicated in the appeal decision, the judge found, in effect, that by 31 December 2018 Ms Avery had recovered from her physical and psychiatric injuries caused by the accident. Her Honour then allowed a further six‑month period for Ms Avery to build up her general physical strength to resume practice, and to renew or obtain her professional registration as a physiotherapist, so that she would have been in a position to return to work as a physiotherapist from 30 June 2019.[171]
[171] Appeal decision [30] - [32], [35], [50].
Nevertheless, the primary judge found, in effect, that whilst Ms Avery would not have been physically or professionally precluded from returning to the workforce as a physiotherapist after 30 June 2019, she may nevertheless have had difficulty in re‑establishing a private practice and might have been required to seek out work as an employed physiotherapist - in connection with which Ms Avery was likely to suffer some diminution of her competitiveness in the workforce as a result of the length of time that she had been absent from the workforce as a result of the injuries caused by Ms Player.[172]
[172] Appeal decision [96], [106].

As we would understand it, the primary judge took into account that (1) a period of absence from the workforce would mean that Ms Avery would need to rebuild her practice, and (2) there may be a period of paid employment in her transition back to the workforce. As to the former matter, the primary judge did not refer to, and we were not referred in this appeal to, any evidence as to the market for, or more generally the demand for, the provision of physiotherapy services in Perth. In making allowance for this factor, the judge said that Ms Avery 'may have had difficulty' in re‑establishing her practice, which we accepted was a finding to the effect that there was a real prospect that she would have had difficulty in re‑establishing her private practice.[173]
[173] Appeal decision [96], [99]; primary decision [241].
As to the latter matter, the primary judge's finding as to the lack of competitiveness in the workforce appears essentially to derive from the judge's acceptance of Mr Parry's evidence. As we observed at [38] of the appeal decision, the judge accepted the evidence of Mr Parry (a vocational rehabilitation provider) that Ms Avery's age (being over 50) and her lengthy period of unemployment were significant barriers to returning to employment in the open job market, 'particularly' if she commenced a new type of employment where experience was lacking.
When her Honour's judgment is read as a whole, the tenor of the judge's finding in that regard is not that Ms Avery would likely encounter significant barriers to entry in returning to her career as a physiotherapist - the occupation for which she had extensive experience and to which the judge found in effect she would have returned.[174] Rather, the tenor of the finding is that although Ms Avery's age and absence from the workforce would likely cause significant barriers to entry for other work in which she was not experienced, those matters could still not be discounted as potentially affecting her return to work as a physiotherapist.
[174] See, eg, primary decision [229].
As we observed in [99] of the appeal decision, the inference apparently drawn by the judge (and accepted by us) is that any employed work would likely have involved lesser remuneration than she would have earned as a sole practitioner. The extent to which paid employment was less remunerative was not, however, established by Ms Avery.
In our view, Ms Avery's overall approach to an assessment referred to in [6] above fails to give due recognition to the nature of the judge's findings. If an allowance of one year of loss‑making were made for the re‑establishment of her practice, there would seem to us to be no proper basis to allow a further year's lost income on the assumption that the practice might fail. The judge's acceptance of Mr Parry's evidence does not support the conclusion that Ms Avery was susceptible to serious risks of unemployment in the event that she returned to physiotherapy work, including in the event of having successfully re‑established her own practice.
In our opinion, an allowance of future economic loss ought give effect to the real (and not fanciful) prospect that Ms Avery would have had difficulty in re‑establishing a practice, the tenor of the finding referred to in [11] above, and the absence of evidence referred to in [9] and [12] above. We accept that a global approach is necessary. The judge's findings do not lend themselves to allocating separate losses for the prospect of difficulty in re‑establishing a practice and the prospect that Ms Avery might need to transition back to the workforce via paid employment. Any such attempted allocation would convey an impression of precision which could have no foundation on the judge's findings of fact.
Given that future economic loss is to be assessed on the basis that Ms Avery was physically and professionally capable of returning to work after 30 June 2019, one way to approach the assessment in these circumstances would be to apply a percentage figure to the amount that would be applicable to economic loss if she had sustained total incapacity for work.[175] Such an approach would be consistent with approaching the matters identified by the primary judge at [241] of the primary decision as being akin to contingencies which qualify the generality of her Honour's evaluation that future economic loss is to be assessed on the basis that Ms Avery was physically and professionally capable of returning to work after 30 June 2019. Counsel for Ms Avery and Ms Player in effect accepted that this approach was available in principle. In our view, a range of between 10% ‑ 15% would be appropriate to take into account the contingency type matters referred to by the primary judge at primary decision [241]. That would give a range of around $61,000 ‑ $91,000. A mid‑point would be $76,000.
[175] Appeal decision [113].
In our view, it was appropriate to award $76,000 for future economic loss in substitution for the award of $150,000.

Costs

Ms Avery sought an order that Ms Player pay her costs of ground 1 of the appeal (which was dismissed). In relation to ground 2 of the appeal, Ms Avery contended that there should be no order as to costs if the award was reduced to a modest amount. However, if an adverse costs order was to be made against her, Ms Avery sought an indemnity certificate under s 10 of the Suitors' Fund Act 1964 (WA). Ms Avery accepted that she was liable to pay the costs of the unsuccessful cross‑appeal.
This court has an unfettered discretion under s 10, but the discretion must be exercised judicially. The discretion is a discretion to grant, rather than a discretion to refuse, an indemnity certificate. The respondent (Ms Avery) must establish that there is an appropriate basis for the exercise of the court's discretion in her favour. The mere fact that she succeeded at first instance, but lost on appeal on a question of law, is insufficient. A relevant consideration is whether, and, if so, to what extent, the question of law was of general importance or application, or whether the question of law merely arose from the particular facts of the case.[176]
[176] Nelson v Moorcraft [2014] WASCA 212 (S) [13].
We accept that Ms Avery acted reasonably in opposing ground 2. But in this case there was no question of general importance. The error of law was the judge's failure to give adequate reasons - the

question of law arose from the particular facts of the case and no point of principle was in issue. In all the circumstances we were not persuaded that there is an appropriate basis for the exercise of the grant of discretion under s 10.

This is not a case where the appellant should be ordered to pay the respondent's costs on the aspect of the appeal on which the appellant was unsuccessful. Rather, the appellant's lack of success on ground 1 is appropriately recognised by a percentage reduction in the appellant's overall costs recovery. Counsel for the respondent submitted, in the alternative to his primary submission concerning ground 1, that an appropriate percentage figure would be 50%. That percentage figure was not disputed by counsel for the appellant.

MITCHELL JA:

For reasons I gave in the appeal decision, I would have dismissed the appeal. It is unnecessary for me to express any view as to the allowance to be made for future economic loss on the majority's view. At the hearing on 9 December 2022, I agreed with the orders as to costs proposed by Murphy and Vaughan JJA for the reasons which their Honours have explained.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

12 DECEMBER 2022

Non-pecuniary loss	$131,400
Past loss of earning capacity for the period 15 November 2014 to 30 June 2019	$350,000
Past loss of superannuation	Nil
Past medical expenses	$43,662
Past travel expenses	$9,387
Future loss of earning capacity	$150,000
Future loss of superannuation	Nil
Future medical expenses	$60,000
Future travel expenses	$3,000
Interest to date of judgment	$98,000
Total	$845,449

2 days	3 days	4 days
Average Gross	$63,974	$31,987 x 3 = $95,961	$31,987 x 4 = $127,948
Average non-car expenses	$13,949	$13,949 + (20% x $31,987) = $20,346	$13,949 + (20% x $63,974) = $26,744
Average net income before tax being average gross income less average non-car expenses	$50,025	$75,615	$101,204
Total income before tax less $12,172 car expenses	$37,853	$63,443	$89,032
Tax payable	$3,849	$12,166	$20,482
Annual income after tax[53]	$46,176 (rounded to the nearest $1,000: $46,000)	$63,449 (rounded to the nearest $1,000: $63,000)	$80,722 (rounded to the nearest $1,000: $81,000)

Period of working[59]	Number of days working	Calculation of pay
15 November 2014 - 31 December 2014	2 days	2 days a week at $46,000 per annum/$885 per week x 6.5 weeks = $5,752
1 January 2015 - 31 December 2016	3 days	3 days a week at $63,000 per annum x 2 years = $126,000
1 January 2017 - 30 June 2019	4 days	4 days a week at $81,000 per annum x 2.5 years = $202,500
Total (15 November 2014 - 30 June 2019)	$334,252