Robert Bruce Suffolk v Clare Mary Meere
[2002] ACTCA 1
ROBERT BRUCE SUFFOLK v CLARE MARY MEERE [2002] ACTCA 1 (28 March 2002)
CATCHWORDS
APPEAL – assessment of damages – whether reasoned, mathematical approach adopted – factors incapable of precise quantification – whether approach fairly reflected true measure of loss.
Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594
Gamser v Nominal Defendant (1976-77) 136 CLR 145
Griffiths v Kerkemeyer (1997) 193 CLR 161
Van Gervan v Fenton (1990) 109 ALR 283
Luntz, H, Assessment of Damages for Injury and Death (4th ed) 2002
No. ACTCA 1 of 2001
No. SCA 29 of 2001
Judges: Miles CJ, Crispin P and Higgins J
Supreme Court of the ACT
Date: 28 March 2002
IN THE SUPREME COURT OF THE )
) No. ACTCA 1 of 2001
AUSTRALIAN CAPITAL TERRITORY ) No. SCA 29 of 2001
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER
BETWEEN:ROBERT BRUCE SUFFOLK
Appellant
AND:CLARE MARY MEERE
Respondent
CLARE MARY MEERE
Cross Appellant
AND:ROBERT BRUCE SUFFOLK
Cross Respondent
ORDER
Judges: Miles CJ, Crispin P and Higgins J
Date: 28 March 2002
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The cross appeal be dismissed.
The award of damages in the sum of $895,168 be set aside.
In lieu thereof, there be judgment for the appellant in the sum of $990, 869.
The respondent pay the appellant’s costs of the appeal including any costs incurred in relation to the cross-appeal.
IN THE SUPREME COURT OF THE )
) No. ACTCA 1 of 2001
AUSTRALIAN CAPITAL TERRITORY ) No. SCA 29 of 2001
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER
BETWEEN:ROBERT BRUCE SUFFOLK
Appellant
AND:CLARE MARY MEERE
Respondent
CLARE MARY MEERE
Cross Appellant
AND:ROBERT BRUCE SUFFOLK
Cross Respondent
Judges: Miles CJ, Crispin P and Higgins J
Date: 28 March 2002
Place: Canberra
REASONS FOR JUDGMENT
MILES CJ
The facts and the Master’s reasons are summarised in the majority judgment, which concludes that the Master substantially underestimated the plaintiff’s damages. As I dissent from that view, my reasons will be brief.
Although this appeal is by way of re-hearing, there has to be shown some error on the part of the Master. In my view, the only error is in the Master’s use of the term “buffer” to characterise the method of calculating that part of the damages awarded for future loss of earning capacity.
Upon a search of legal sites on the internet, the term “buffer” is to be found only in decisions of the Supreme Court of New South Wales and of this Court and also in decisions of the Full Court of the Federal Court of Australia on appeal from this Court. It does not rate a mention in the standard text, Harold Luntz: Assessment of Damages for Injury and Death (4th ed 2002) although the principle is discussed at [5.3.7]. It is sometimes used in conjunction with the term “hedge”. It is not a term always used with precision. In my view, confusion might be avoided if its use is restricted (as I believe it once was) to describe that part of an award of damages which is intended to compensate an injured plaintiff for a loss which has not yet occurred, and is not likely to occur, but which, as a matter of real possibility, may occur in foreseeable circumstances established on the evidence.
The principle is well described by Sholl J in Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594 at 599:
“… unless [the jury] can find on the evidence that the plaintiff is unlikely to remain in such employment, and unlikely to find other work at a comparable wage, they are not entitled to compensate him upon the basis that he will never work again. And unless there is evidence upon which they can find it likely that he will earn less money, the most they can lawfully do is to compensate him to the extent of a reasonable and moderate evaluation in money of the mere chance or risk of future unemployment or less remunerative employment. Even if the jury in the present case was entitled – as I think it was – to take the view that the plaintiff, if he had to find work off the wharves, might earn reduced wages and have periods of unemployment, there was simply no evidence that that was likely to be his situation at any foreseeable time. The jury was entitled to award something moderate by way of insurance against the chance of such a situation arising, but they were certainly not entitled, in my judgment, on the evidence in this case, to assess compensation merely for the plaintiff’s being exposed to such an economic risk …”
In contrast, where the circumstances, and in consequence the loss, may be predicted as matters of probability or there is a high incidence of possibility, the proper approach is usually to apply a mathematical formula in order to assess the present value of the future loss. For some years now in Australia, it has been considered appropriate to apply a 3 per cent per annum “discount” investment rate to a determined likely recurrent loss over a determined likely period. The danger of the application of a mathematical formula cloaking the assessment with an illusory mantle of accuracy is recognised and allowed for by adjusting the figure calculated by a proportion or percentage to reflect “contingencies” or “vicissitudes”. There is also the need for a final check in the figure on a “global” basis in order to check whether it is within the limits of sound discretion.
The Master found on the probabilities that the plaintiff was likely to continue to be unemployed for an indeterminate time into the future. The Master then reasoned that, on an assumption that the plaintiff would remain unemployed until about age 65, the present value of his future loss could be calculated in the way just indicated. But on the Master’s view there was significant residual capacity for work on the part of the plaintiff together with a likelihood that his psychological condition would improve substantially after the end of the litigation. The possibility that the plaintiff might be able to return to work within his capacity if he so chose was such that the Master thought that the figure should be reduced (“discounted”) by half to $340,000. That was not a buffer or hedge to provide compensation for the unlikely event that the plaintiff’s injury would result in total or partial employment at some unpredictable time in the future. It was the best the Master could do to put a monetary value on the plaintiff’s loss of future earning capacity.
I think that such an approach was well open to the Master, not only because I belong to the school which holds that in an assessment of damages for personal injuries there is a distinct advantage in seeing and hearing the plaintiff give evidence. The Master found that it was probable that the effect of the injury on the plaintiff’s capacity to work, which had continued until the date of the hearing would continue for some time after. On a “common sense” approach the Master further found it was improbable that the effect would last for the rest of the plaintiff’s life. The fact that the Master rejected the suggestion that the plaintiff was malingering and found that the plaintiff’s claimed disability was “out of proportion to his mechanical condition and attributable to his psychological condition, itself a consequence of the accident” allowed the Master to conclude that the plaintiff had, by reason of the defendant’s wrongdoing, been totally incapacitated for work of any kind up until the time of hearing. This conclusion however did not mean that the Master was locked into reasoning that the plaintiff would continue like that for the rest of his life. It was clear that even by the time of hearing the plaintiff was physically fit for a wide range of sedentary occupations. It may have been (as the Master found) that the plaintiff had found such occupations demeaning or boring and in a sense had been “psychologically” unfit to take them up or continue at them. However, it did not follow that his attitude to work should affect the value of his loss of earning capacity into the future to the same extent as it had governed the loss in the past.
There is of course force in the argument that in a tight “job market” people with limitations like that of the plaintiff find it more difficult to obtain work than those who are fit, educated and enterprising. However, the Master recognised this factor and allowed for it. Further, there was the countervailing factor that the plaintiff’s negative attitude to work had its origins within the limits of his physical capacity. There was strong evidence that the plaintiff’s condition would improve in the future.
Nor would I interfere with the award of $110,000 for pain and suffering and loss of enjoyment of life. This component is in the nature of a discretion or value judgment. There is nothing in the Master’s reasons which shows that this part of the award was based on some irrelevant or erroneous factor and, in my view, it does not lie outside the proper range.
Last, in relation to the award for future gratuitous care by members of the family, this was so much a matter of estimate rather than calculation that I find it impossible to conclude that $5,000 was inadequate. Indeed, that sum may well have been awarded as a true “buffer”, since any hypothesis that domestic assistance reasonably considered attributable to the defendant’s negligence would be required at particular times for particular periods in the future was so vague as to border on speculation. Yet it could not be ruled out as a real possibility for which a modest sum might be awarded.
There is nothing in the overall award of $895,168 to arouse suspicion, let alone provide a ground for persuasion, that it is below the level of sound discretionary judgment.
I would dismiss the appeal.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.
Associate:
Date: 28 March 2002
IN THE SUPREME COURT OF THE )
) No. ACTCA 1 of 2001
AUSTRALIAN CAPITAL TERRITORY ) No. SCA 29 of 2001
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER
BETWEEN:ROBERT BRUCE SUFFOLK
Appellant
AND:CLARE MARY MEERE
Respondent
CLARE MARY MEERE
Cross Appellant
AND:ROBERT BRUCE SUFFOLK
Cross Respondent
Judges: Miles CJ, Crispin P and Higgins J
Date: 28 March 2002
Place: Canberra
REASONS FOR JUDGMENT
CRISPIN P and HIGGINS J
This is an appeal against a decision of the Master based upon the perceived inadequacy of damages awarded to the appellant for personal injuries sustained on 16 June 1990 when knocked from his motor cycle by a car driven by the appellant.
Liability for the accident was admitted and the matter proceeded before the Master only for the assessment of damages.
As a consequence of the accident the appellant sustained fractures to the base of the third metacarpal of his left hand and to the lower pole of his left patella. He had also suffered an injury to his left wrist but the Master found that there was little objective explanation for continued claims of weakness made during his evidence. Perhaps most significantly, the Master found that the appellant had developed a chronic pain syndrome as a consequence of the accident and subsequent sequelae, as well as a major depressive illness.
The appellant was substantially incapacitated during the period after the accident, in which his left wrist and left knee were in plaster, but appeared to recover from his injuries and duly returned to his employment as a security guard with Australian Protective Services in August 1990.
In May 1991 the appellant saw his general practitioner, Dr Reid, in relation to continuing problems with his left knee and the development of exostosis over the site of the fracture of the left hand which had caused pain and stiffness. He also complained of right knee problems which Dr Reid attributed to an anterior cruciate ligament deficiency. Despite these difficulties, the appellant was able to maintain full employment and to cycle about 30 kilometres per day in commuting to and from work.
Dr Reid referred the appellant to an orthopaedic surgeon, Dr Woods, and on 29 July 1991 he performed an operation on the appellant’s left wrist to remove an overhanging bony projection at the site of the fracture. He recommended that the left knee be treated essentially by exercise therapy to strengthen knee muscles. At that stage Dr Woods thought that neither injury should affect the appellant’s capacity for work. The appellant subsequently developed a neuroma at the site of the surgery to his hand and Dr Woods carried out a further surgical procedure to remove this in October 1992. He continued to experience problems with his left knee and in September 1993 Dr Woods carried out an arthroscopy. That procedure apparently revealed the presence of femoral condyle osteophytes on the patella groove on both knees, with those on the left being worse than those on the right. At least in retrospect, Dr Woods formed the opinion that the fracture of the lower pole of the patella sustained in the accident in 1990 had probably led to the ongoing degenerative changes in the left knee.
The appellant had a history of pain in both knees. However, he had had an arthroscopic reconstruction of his right knee in December 1993 involving repairs to the medial meniscus. This procedure successfully resolved the problems in that knee.
The appellant also acknowledged having had some subsequent accidents. He fell from his bicycle in February 1993 when he grazed his left knee and hand, and again in July 1993 when he injured his right knee. He subsequently slipped and fell on the slopes of Parliament House in October 1993 and this incident caused some left knee pain. Nonetheless, he was able to maintain his employment as a security guard, which often required him to work long shifts.
The appellant had used braces on his wrist and knee since the mid 1990s. The Master was not satisfied that these measures were medically appropriate but accepted that the appellant had taken them in compliance with medical advice and genuinely believed that they had been necessary. Unfortunately, he has experienced weakness in the left knee and wrist and significant muscle wasting as a result of wearing these braces.
The Master took into account the difficulties that the appellant had experienced with both knees prior to the motor vehicle accident but found that the accident had led to the development of post traumatic arthritis in the left knee. This condition was likely to continue to deteriorate, though there was some prospect that it could be alleviated to some degree by invasive surgery. The Master also found that the accident had caused a fracture in the bones of his left hand which had led to further complications requiring surgery. He was satisfied that the appellant “continue[d] to experience difficulties with his left wrist” but found that they were “largely . . . [the] result of the disuse syndrome that had developed due to the ongoing use of the brace”. The Master was not satisfied that there was any clear orthopaedic explanation for the appellant’s complaints in relation to his wrist but, as previously mentioned, found that the appellant suffered from a major chronic pain syndrome and a major depressive illness. He concluded that the use of the braces had in fact weakened the appellant’s left knee and wrist and had caused extensive wasting of these limbs, but that the appellant’s physical condition was not as severe as he believed. He concluded that his disability was substantially attributable to the chronic pain syndrome.
The Master rejected a contention that the successful resolution of the litigation would necessarily lead to the resolution of the appellant’s psychological condition but accepted that it might lead to some amelioration of it. He found, however, that the appellant would remain limited in his movement and observed that it was the limitation of his physical capacity that had led to the development of his reactive depression.
The Master also found that the appellant’s knee condition would continue to deteriorate with time. He anticipated that a reconstruction of the knee within the next ten years would give him some relief but that further surgical intervention might subsequently be required.
The Master said that the problems with the appellant’s wrist seemed mainly attributable to psychological factors and disuse, and that he hoped that the appellant would abandon the use of the braces. The Master also found that the appellant would benefit from additional pain management treatment to further limit his reliance upon pain relief medication. The Master was satisfied that these matters would lead to an improvement in the appellant’s psychiatric condition and in his wrist and knee mobility but concluded that his left knee would never be pain free or regain a full range of movement.
The Master found that whilst the appellant had signs of arthritic change in his right knee it had remained symptom free since the reconstruction. The Master was satisfied that even if the accident had not occurred the appellant would in time have come to experience degenerative changes to his knees and would also have continued to complain from time to time of injuries to his knees as he had in the years leading up to the accident. Nevertheless, the appellant impressed him as a man whose life had been substantially affected by the accident. He awarded him damages in the sum of $895,168.
Mr Kennedy SC, who appeared for the appellant with Mr Crowe, challenged the Master’s assessment of damages on three bases.
First, Mr Kennedy submitted that the component of damages awarded for loss of future earning capacity had been inadequate.
In approaching this issue the Master made the following findings:
It must be recalled that the mechanics of his condition are relatively minor. He does experience a degree of left knee pain due to the progression of an arthritic disease, which I have found is accident related. This will continue to deteriorate over time, although invasive surgery will provide some respite. He complains of left wrist weakness, but there is little objective explanation for this, and I have found that this is now mostly attributable to his psychiatric condition. While I have found that this combination has rendered him unable to work to date, I am not satisfied that the plaintiff’s combination of conditions are such that I am satisfied that he will never work again. There is support in the medical evidence for the view that he is capable of a range of sedentary occupations. I accept that his education is a limiting factor here, but I am satisfied, on all the evidence, that the plaintiff will be able to re-enter the workforce.
. . .
I am satisfied that the plaintiff would, but for this accident, have continued as long as he could have in the well remunerated and secure work as a security guard. I am satisfied that the accident has precluded him from doing this, but I am not satisfied that, but for the accident, he would have continued in this work to age 65. The work is demanding, and he has a history of knee complaints well before the accident. There should be some discount factor to take into account early retirement from this type of work. I am also not satisfied that the plaintiff, who has real but not totally disabling physical limitations, will never be able to work. It seems to me that on all of the evidence I should find that he does have a residual economic capacity of some significance. Nevertheless, he has sustained a substantial loss as a consequence of this accident. I am satisfied that he will take some time to achieve a realistic residual economic capacity, and it would in my view be inappropriate to assess him on the basis that from the date of the trial his loss is limited to the difference between his lost security officer earnings and notional clerical wages. I must therefore assess future loss on the basis of a man who would have continued to work as a security guard as long as he could, but probably not to age 65, but who has a realistic prospect of utilising a substantial residual economic capacity.
In the light of these findings the Master assessed a loss of $798 per week for a period of 850 weeks, and then discounted that amount by 50 per cent “to take into account his significant residual capacity”. This amounted to an award, “by way of a buffer” of $339,150.
Mr Kennedy submitted that the Master had fallen into error in failing to adopt a reasoned, mathematical assessment of the damages for this component of the appellant’s loss as required in Gamser v Nominal Defendant (1976-77) 136 CLR 145. He also argued that the prospects of the appellant being able to sustain significant future employment were bleak and that the evidence did not warrant the discount applied by the Master. He submitted that there had been extensive and substantial unchallenged evidence to the effect that the appellant would remain unemployable and that the Master had failed to take into account or give sufficient weight to the medical evidence as to the plaintiff’s psychological condition. The appellant was clearly a person of limited education who had very poor literacy, verbal and numerical skills and had previously experienced considerable difficulty in obtaining employment during the 1980s. When his physical and psychological disabilities were considered in this context, the Master should have accepted that he was virtually unemployable.
On the other hand, Mr Deakin QC, who appeared for the respondent with Mr McDonogh, submitted that there was ample basis for the Master’s findings. He pointed out that from June to August 1995 the appellant had been employed on a trial basis in a security job at the Australian Government Printer’s works at Kingston in what seems to have involved sitting at a security point checking passes and answering telephones, as well as doing some filing work. The appellant said that he hated this work and was “not an office person”. He was then given a further trial working at a sign-making plant and subsequently in what was described as a “less onerous security position” at the Department of Defence. Mr Deakin argued that a plaintiff could not claim to have been completely disabled for work merely because he did not like the type of work that fell within the scope of his residual capacity.
In dealing with this issue the Master said that it seemed that the appellant had been “unable to cope with the less vigorous security jobs as much for psychological reasons as physical ones”.
When asked how he had coped with the work, the appellant said that he had not handled it very well. He explained that “the knee was still hurting and mentally I just wasn’t with it”. Mr Deakin argued that this comment had been made in the context of a claim that the duties had involved a lot of walking and that he had later conceded that he had not been obliged to do it. However, the appellant had also said that he had not been allowed to carry out what he described as “pain management practice”. Furthermore, when asked how he had felt about the job emotionally, he had spoken in negative terms of the restrictions imposed upon him and of being “stuck in a little box”.
A psychologist, Dr O’Brien, expressed the opinion that the appellant had been more depressed and angry at that time because he had been unable to cope with just sitting still. Dr O’Brien concluded that “the push by his employers to redeploy him in clerical and computer work just really pushed him over the edge in terms of his depression”. Mr Deakin was very critical of Dr O’Brien’s evidence. He pointed out that this opinion was neither reflected in his contemporaneous notes nor was it supported by other evidence in the case. However, the Master had the advantage of assessing his evidence by reference to his demeanour in the witness box and we are unable to say that it had been incumbent upon him to reject it.
Having considered all the evidence on this issue we are satisfied that there was evidence to support the Master’s finding that the appellant had been unable to cope with this job and other less physically demanding security jobs.
We accept that the Master did not approach the matter on the basis suggested in Gamser. He clearly attempted to calculate what he thought would have been the extent of the appellant’s loss had it not been for two factors, namely the likelihood that he would have been forced to accept early retirement even if he had not suffered the accident and the existence of some residual capacity for work. He then proceeded to discount that sum by reference to those factors. It cannot be said that this approach was purely intuitive. It is true that no precise calculation was made, or could have been made, of the contingencies to which we have referred, but the difficulty of the task did not relieve him of the duty of taking them into account. Nonetheless, we have ultimately concluded that there were some errors in the reasoning process.
Having indicated that he was not satisfied that the appellant would have worked to age 65, it was potentially confusing for the Master to have calculated damages by reference to a notional retirement at that age, albeit subject to a discount for factors that included the likelihood of earlier retirement. The amount notionally obtained on that basis was calculated without reference to the 3 per cent discount rate traditionally applied to determine the present value of amounts that would otherwise have been paid progressively over a period of some years. Furthermore the 50 per cent reduction from that amount was, in our opinion, greater than was warranted. There was some potential ambiguity in the comments that the Master made concerning the basis for the discount, but we are inclined to accept that he took into account both the prospects of early retirement and what he regarded as the significant residual earning capacity. However, having considered the evidence carefully, we have concluded that not even the combined weight of these factors warranted a reduction of the magnitude applied. The evidence did not suggest that the pre-existing problems with the appellant’s knees would have greatly increased the likelihood of early retirement and, as mentioned earlier, those involving the right knee were effectively overcome by the surgery in 1993. On the other hand, whilst we do not accept that the appellant is unemployable, his prospects of obtaining substantial long term employment in the future are obviously very limited.
The Master clearly accepted the plaintiff as a truthful witness and there does not appear to be any significant issue relating to the credibility of witnesses that would require the matter to be sent back to the Master for re-hearing. Accordingly, we proceed to make our own appraisal of the evidence with a view to redetermining the relevant issues.
We are satisfied that, but for the accident, the appellant would probably have maintained his employment as a security guard until age 55, but we are unable to be satisfied on the balance of probabilities that he would have maintained his employment beyond that age. Having regard to the demanding nature of that employment and to his pre-existing difficulties some allowance should be made for the possibility that he may have been unable to sustain his employment even to that age. However some allowance should also be made for the possibility that the appellant may have maintained some residual earning capacity, whether as a security guard or otherwise, after that age. Like the Master, we are not satisfied that the appellant will never again enter the workforce. Nevertheless, we think it is unlikely that he will ever be able to obtain and sustain full time employment on a long term basis. In these circumstances we think it is appropriate to assess damages for future economic loss by allowing the sum of $798 per week from the time of the Master’s judgment until the appellant’s 55th birthday, subject to the 3 per cent discount rate to which we have previously referred. That amounts to $566,448 which we discount by 25 per cent to allow both for the competing contingencies in relation to the capacity for employment that he would have enjoyed but for the accident, and for his residual earning capacity. Hence, we allow the sum of $402,336 in lieu of the sum of $339,150 which had been allowed by the Master.
Secondly, Mr Kennedy submitted that the amount allowed for general damages had also been inadequate. The Master allowed the sum of $110,000 for this component of damages together with interest of $15,085. Had this been the only ground of appeal we would have been inclined to accept that these amounts fell within the range of discretion reasonably open to the Master and that no error had been demonstrated. However, we have taken a somewhat different approach to the appellant’s prospects of future employment. That issue was clearly relevant to his prospects of obtaining some amelioration in his major depressive disorder. Hence, we have concluded that it is appropriate to reassess this aspect of the appellant’s claim.
It is, we think, appropriate to bear in mind that the appellant had been actively involved in sports and other physical pursuits and, as the Master found, his physical prowess had clearly been an important part of his life. That has now been substantially lost to him. He has also lost the satisfaction that he obtained from his employment as a security guard and from his ability to provide for his family by means of that employment. Furthermore, the appellant has not had significant intellectual and cultural interests from which he could derive consolation in the face of his physical limitations. He has been left with chronic pain and depression and his relationship with his family has been gravely affected. In short, the accident seems to have had a devastating impact on the appellant’s life and it seems probable that it will continue to cause him significant suffering for many years. In these circumstances we think it is appropriate to award the sum of $135,000 for general damages. We allocate $80,000 of this sum to the period prior to trial and allow interest of $17,600 on this amount.
Third, Mr Kennedy submitted that the amount that the Master had allowed for domestic care and assistance pursuant to the principle in Griffiths v Kerkemeyer (1997) 193 CLR 161 was inadequate. The Master found that the appellant had received substantial care and assistance from his wife during the period after the accident when his knee and wrist were immobilised in plaster and subsequent periods following further surgery on his wrist in the early 1990s. Whilst noting that the appellant continues to have limited movement in his wrists and arthritic degeneration in his left knee, the Master observed that he remained “independent in care and daily functions”. The appellant’s teenage son apparently assumed the responsibility for mowing the lawns and the appellant remains unable to do heavy household jobs. However the Master expressed the opinion that “these adjustments, if they are accident related at all, are no more than the normal give and take of domestic relationships, and do not sound in damages, as explained in Van Gervan v Fenton (1990) 109 ALR 283”. He awarded a buffer of $5,000 in respect of past post-operative care and made a similar award for the future.
Mr Kennedy argued that the principle argued in Van Gervan’s case had been of no application because the evidence had not revealed that the appellant had been able to assume other domestic tasks in lieu of the household work which he could no longer undertake. Whilst we accept that submission, we think that the amount awarded by the Master was entirely adequate. It is likely that the appellant would have had some measure of disability during the period in question even if he had not sustained the relevant accident. For example, as we have mentioned, he had a reconstruction of his right knee in 1993. Given his physical condition and the ages of his children we are unable to be satisfied that his children would not have assumed some or all of the tasks for which compensation had been sought even if the accident had not been sustained. Hence, even if we were to reassess this component we could not be satisfied that any further amount should be allowed in respect of the period prior to trial.
However, we are inclined to accept that the amount allowed for the future was inadequate. At the time of trial the appellant was only 38 years of age, and whilst the Master correctly identified the fact that he faced the likelihood of two further surgical procedures within the coming decades, he does not seem to have allowed sufficiently for the likelihood that the appellant will need some assistance over an extended period of time including, perhaps, periods in which his children have grown up and left home. In these circumstances a greater figure should have been allowed. We think it is appropriate to allow the sum of $10,000 rather than the sum of $5,000 allowed by the Master.
There was also a cross appeal relating to the amount of damages awarded by the Master for past economic loss. The Master was satisfied that there should be an award “based on full loss of economic capacity to date” and awarded the sum of $217,780 which had been calculated at the rate of $740 per week for a period of 293 weeks. Mr Deakin submitted that it had been incongruous for the Master to have found, in effect, that the respondent had a residual economic capacity of some significance, but to have nonetheless found that he had been totally incapacitated for work during the several years prior to trial. He also submitted that the evidence revealed no physical reason that might have prevented him from maintaining the sedentary job that he had undertaken at the Australian Government Printing Office, and that his dislike for work of that type could not be regarded as an incapacity.
We are unable to accept these submissions. We do not accept that the Master’s findings were inconsistent. A finding that a person has not been deprived of all capacity to engage in employment during the balance of his normal working life between the time of the trial and the time at which he would have expected to retire is not necessarily inconsistent with a finding that he had been wholly incapacitated from employment during an antecedent period, or even that he remained so incapacitated as at the date of the trial. Furthermore, for the reasons previously given, we reject the proposition that the appellant’s employment in the Government Printing Office on a trial basis demonstrated a continuing capacity for employment at that time. Having considered the evidence carefully we are satisfied that it was open to the Master to conclude that the appellant had been totally incapacitated for employment up to the day of trial. Accordingly, the cross appeal must be dismissed.
The findings which we have made will result in the overall award of damages being increased from $895,168 to $990, 869.
I certify that the paragraphs numbered thirteen (13) to forty-eight (48) are a true copy of the Reasons for Judgment herein of their Honours Crispin P and Higgins J.
Associate:
Date: 28 March 2002
Counsel for the Appellant/Cross Respondent: Mr D T Kennedy SC with Mr R L Crowe
Solicitor for the Appellant/Cross Respondent: Maliganis Edwards Johnson
Counsel for the Respondent/Cross Appellant: Mr P Deakin QC with Mr M McDonogh
Solicitor for the Respondent/Cross Appellant: Dibbs Barker Gosling
Date of hearing: 31 October-1 November 2001
Date of judgment: 28 March 2002
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