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 (4^th 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 (4^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] ACTCA 1
Decision Date

CaseChat Overview and Summary

This case involved an appeal to the Supreme Court of the Australian Capital Territory concerning the assessment of damages for personal injuries. The appellant, Robert Bruce Suffolk, had been injured in a motor vehicle accident on 16 June 1990, when he was struck by a car driven by the respondent, Clare Mary Meere. Liability for the accident was admitted, and the appeal focused solely on the quantum of damages awarded by the Master. The appellant sustained fractures to his left hand and left patella, and subsequently developed chronic pain syndrome and major depressive illness, which the Master found had substantially incapacitated him for work.

The legal issues before the Court of Appeal were whether the Master had erred in assessing the damages, particularly concerning the component for loss of future earning capacity, general damages for pain and suffering and loss of enjoyment of life, and damages for future gratuitous care. The appellant argued that the Master had failed to adopt a reasoned, mathematical approach to future economic loss and that the discount applied was insufficient given his limited prospects of future employment. The respondent cross-appealed, contending that the Master's finding of total incapacity for work up to the date of trial was inconsistent with the finding of residual earning capacity.

The majority of the Court of Appeal, comprising Crispin P and Higgins J, found that while the Master had not strictly followed the approach mandated in *Gamser v Nominal Defendant*, his method of calculating future economic loss was not entirely intuitive. However, they identified errors in the Master's reasoning, including the calculation of damages based on a notional retirement at age 65 without applying a discount rate and an excessive 50% reduction. The Court determined that the appellant would likely have maintained his employment as a security guard until age 55, with some allowance for earlier retirement and residual earning capacity. They reassessed future economic loss accordingly. The Court also increased the award for general damages, considering the devastating impact of the accident on the appellant's life, and increased the award for future gratuitous care, finding the Master's allowance inadequate for the extended period of potential need. The cross-appeal was dismissed, with the Court finding no inconsistency in the Master's findings regarding past total incapacity and future residual capacity.

The Court of Appeal upheld the appeal, set aside the Master's award of $895,168, and entered judgment for the appellant in the sum of $990,869. The respondent was ordered to pay the appellant's costs of the appeal, including any costs incurred in relation to the cross-appeal. The dissenting judgment of Miles CJ would have dismissed the appeal, finding no error in the Master's assessment of damages.

Orders