Ross v Suncorp Metway Insurance Ltd
[2002] QCA 93
•22 March 2002
SUPREME COURT OF QUEENSLAND
CITATION:
Ross v Suncorp Metway Insurance Ltd [2002] QCA 93
PARTIES:
ELIZABETH ROSS
(plaintiff/appellant)
v
TRISHA YOLANDA QUIRK
(first defendant)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(second defendant/respondent)FILE NO/S:
Appeal No 5561 of 2001
DC No 1439 of 2000DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
22 March 2002
DELIVERED AT:
Brisbane
HEARING DATE:
11 February 2002
JUDGES:
Davies and Thomas JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
Appeal dismissed with costsCATCHWORDS:
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – motor car accident – where appellant suffered neck and lower back injury – appellant qualified in Poland as a dental technician but had not worked in that capacity for 13 years preceding the accident – where nil assessment for past economic loss – where global assessment given for future economic loss - where trial judge acted on basis that appellant’s condition would improve
APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES – DAMAGES INADEQUATE – whether trial judge erred in giving nil assessment for economic loss – application of principles in Malec v JC Hutton – where no error – whether trial judge erred in making
a global assessment – application of s 16 Supreme Court Act 1995 (Qld) – s 16 does not rule out the making of a global assessment – where global assessment appropriate
APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – AWARD OF INTEREST ON DAMAGES – IN QUEENSLAND – where award of damages included interest – whether an additional sum for interest ought to have been given
PRACTICE AND PROCEDURE – COSTS – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – ORDER FOR COSTS ON INDEMNITY BASIS – whether trial judge erred in refusing to order costs on indemnity basis – where appellant made settlement offer before trial – where nature of case not clearly made out – where no error in refusing to award costs on indemnity basis
Supreme Court Act 1995 (Qld), s16
Uniform Civil Procedure Rules, Chapter 9 Part VElford v FAI [1994] 1 Qd R 258, considered
Hadzigeorgiou v O’Sullivan [1983] 1 Qd R 55, considered
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, applied
Powell v Black [1982] Qd R 801, 806, applied
Rogers v Brambles Australia Ltd [1998] 1 Qd R 212, consideredCOUNSEL:
M Grant-Taylor SC for the appellant
A M Daubney SC for the respondent
SOLICITORS:
McInnes Wilson for the appellant
Walsh Halligan Douglas for the respondent
DAVIES JA: I agree with the reasons for judgment of Thomas JA and with the orders he proposes.
THOMAS JA: This is an appeal by a plaintiff against alleged inadequacy of damages.
The appellant was 37 years old at the date of accident (19 November 1998). She was a front seat passenger in a vehicle struck from the rear. She sustained some neck and lower back injury, although the neck injury was not demonstrable. The learned trial judge concluded that as a result of the back condition the plaintiff had a 10% impairment and as a result of the neck condition a disability of 5% of the whole of her person. His Honour observed that these injuries were not major “relative to other cases” and that they would not in the ordinary course prevent her from doing light work. A central matter in the present appeal is the extent to which the plaintiff’s recovery has been impeded by a pain disorder, and whether His Honour was entitled to act on the basis that its effects would be ameliorated in the future.
The appellant was a national of Poland until she came to Australia in 1985 with her husband. After arriving in Sydney she secured work for about six months packing shelves in a supermarket. In 1986 her husband suffered a workplace injury and became an invalid pensioner. She did not obtain any further remunerative employment in the following twelve years preceding the motor vehicle accident. She and her husband have two sons born in June 1986 and February 1988. His Honour accepted that it was difficult to believe that the appellant ever really wanted to work. She and her husband were evidently attaining a satisfactory lifestyle without the need for either of them working. The ease within which the appellant settled into a “sick role” re-inforced that conclusion.
Whilst in Poland the appellant had obtained a qualification as a dental technician. She did not obtain such work after coming to Australia, and apart from evidence of a conversation with her family doctor in 1985 and the obtaining of some information from an organisation, she showed little inclination towards re-engaging in such work. In any event she would not have been able to obtain registration without sitting for a further examination, and English language difficulties were also present.
After having her children she does not appear to have looked for any other work, and was caring full time for her children and her husband. Although the appellant said that after moving to Brisbane she was thinking she might go back to work, she had made no enquiries about even the prospect of working as a dental technician. It may be noted that if she had commenced a dental technician’s course at the beginning of 1999, she would not have finished it by the time of trial in April 2001.
The learned trial judge awarded damages (and interest) totalling $87,134.61 made up of the following components:
Pain, suffering and loss of amenities including interest $35,000.00
Impairment of earning capacity $15,000.00
Past Griffiths v Kerkemeyer claim $11,576.00
Interest $ 1,447.00
Future Griffiths v Kerkemeyer claim $10,000.00
Future needs $ 6,183.00
Future medication $ 1,789.00
Special damages $ 2,413.15
Interest $ 226.46
Loss of consortium claim $ 3,500.00
TOTAL $87,134.61
The main thrust of the appeal is directed against the nil assessment for past economic loss, and the alleged inadequacy of the assessment for future impairment of earning capacity. In addition it was contended that the amounts allowed for future care and future medication were inadequate; that His Honour erred in failing to make a separate allowance of interest upon the damages for pain, suffering and loss of amenities; and that His Honour erred in declining to order the defendants to pay costs on an indemnity basis.
Mr Grant-Taylor SC for the appellant submitted that His Honour was not entitled to find that, whilst the success of future treatment regimens was uncertain, it was nonetheless probable that the appellant’s plight would not continue indefinitely, and that “within a couple of years or so” there would be a “marked improvement” in the appellant’s status. Mr Grant-Taylor submitted that there was no evidence capable of sustaining those findings. However having read the evidence of Mr Hoey (an occupational therapist) and of Miss Jackson (a psychologist), I consider that His Honour was entitled to take such a view. I also note that His Honour’s rejection of “bleak prospects” suggested by another witness was influenced by His Honour’s assessment of the plaintiff as a “sensible woman who will, with assistance, gain insight into her problems and the ways in which they have prevented her from leading a fuller and happier life”. His Honour also noted that the appellant was prepared to co-operate, in finding ways of coping. His Honour expressly stated that he reached his conclusion on the basis of his assessment of the plaintiff and the evidence of Mr Hoey and the evidence of Miss Jackson. I consider that the appellant’s attempt to upset this primary finding of the learned trial judge fails.
The nil assessment of past economic loss was in respect of the period of less than two and a half years following the accident. Against a background in which the appellant had been unemployed for about thirteen years preceding the accident, the impediments in the way of returning to the area in which she was trained, and her general family situation, His Honour’s finding that it was “very unlikely” that she would have returned to work during this period is obviously realistic. Mr Grant-Taylor however submits that His Honour should, in accordance with Malec v JC Hutton Pty Ltd[1] have proceeded to make some assessment of damages in favour of the appellant notwithstanding the considerable unlikelihood of any having been sustained under this head. It would, with respect, be an absurdity if the law required the fixation of a token award, necessarily of a trivial and speculative amount, under every head of damage in relation to which the evidence was incapable of proving with absolute certainty that there would have been no loss. I confess to a difficulty in applying in a practical way the following statement that appears in the majority judgment in Malec:
“But unless the chance is so low as to be regarded as speculative – say less than 1 per cent - or so high as to be practically certain – say over 99 per cent, the court will take that chance into account in assessing the damages”[2].
I am however prepared to say that the chance of this appellant returning to work during the period in question was so remote that the only appropriate response from the court was to make a nil assessment. Where the chances are close to nil, as they were here, I do not think that Malec v Hutton requires some token assessment to be made. I would add that if it did require a trivial assessment to be made and added into the damages, the omission in this case would have so small an impact upon the result as to preclude the allowance of any appeal[3].
[1](1990) 169 CLR 638.
[2]Ibid, at 643 per Deane, Gaudron and McHugh JJ.
[3]Elford v FAIGeneral Insurance Co Ltd [1994] 1 Qd R 258.
The allowance of $15,000 for future economic loss was in my opinion reasonable having regard to the primary facts that were found including the lack of any strong inclination to return to the workforce. It is also noted that the appellant probably retained some capacity to return to work in the future were she minded to do so.
In relation to the complaint that damages for future medication and care were inadequate, it is enough to say that I did not understand this point to be strongly pressed, and consider that His Honour’s allowance was within the ambit of the sound exercise of discretion.
The next point concerns the possible application of s 16 of the Supreme Court Act 1995 in the context of a global assessment of future economic loss. Section 16(1) provides:
“Where an award of damages is to include compensation, assessed as a lump sum, in respect of damage that is referable to deprivation or impairment of earning capacity or to a liability to incur expenditure in the future the amount of that compensation shall be the present value of that sum calculated in accordance with actuarial tables at a discount rate fixed by the Governor in Council under a regulation as at the time of making the award or, in the absence of a rate so fixed, at a discount rate of 5%.”
Mr Grant-Taylor’s submission is that this section demands that a calculation with mathematical precision be done without exception. Whatever s 16 means, it does not require a judge to do something that is impossible. A precise mathematical calculation of this appellant’s future economic loss was out of the question. Taken to its logical extreme Mr Grant-Taylor’s submission would preclude the making of any assessment at all unless the criteria are precise. I do not think that s 16 obliges a judge to adopt precise figures and engage in specific mathematical calculations when there are no criteria upon which such figures might be properly inferred. In short, I do not read s 16 as ruling out the making of global assessments.
The tension between s 16 and the necessity of judges doing the best they can in making speculative assessments was recognised in Powell v Black[4]. In that case I stated, with respect to an assessment of future speculative economic losses – “In accordance with the statutory requirement to do so, His Honour may be taken to have impliedly used the 5 per cent rate with respect to the speculative items”. Ever since the need for actuarial discounting has been recognised, judges arrive at appropriate figures by endeavouring to reach a figure that is consonant with the diminishing effect that actuarial discounting produces. In Queensland, in the area of future economic loss in personal injury cases judges have for more than two decades been familiar with the use of the 5 per cent figure[5]. It therefore does not seem inappropriate to treat a trial judge in a situation such as the present as having acted consistently with the levels of damages that such a system produces.
[4][1982] Qd R 801, 806.
[5]S 16 was inserted in 1981.
The next point concerns the award of $35,000 for pain, suffering and loss of amenities including interest. Mr Grant-Taylor submitted that His Honour should have awarded a particular sum for damages for pain, suffering and loss of amenities and then added an additional sum for interest on that part of it which related to the detriment so far suffered. He submitted that it was impermissible for a single figure to be awarded which included both items and which did not disclose specific sums identifying each component. He referred to Hadzigeorgiou v O’Sullivan[6] as authority supporting such a conclusion. That decision does not hold that a single figure may not be assessed which combines both the particular head of damage and the interest it would attract. Hadzigeorgiou holds that the separate discretions in relation to costs and interest should not be rolled up into a single discretion, and further indicates that interest ought to be granted unless there are proper reasons for withholding it. I see no reason why a judge may not select a particular round figure as appropriately representing a head of damage and the interest which it would attract, although in the normal course the judge will select a round figure and then add interest to it. Mr Grant-Taylor conceded that he could not say that $35,000 was necessarily inadequate. In my view no error is disclosed on this particular aspect.
[6][1983] 1 Qd R 55.
Finally the appellant complains of error in the refusal of His Honour to award indemnity costs, having regard to an offer made by the appellant before trial to settle for $86,450. On this point I agree with the reasons stated by Douglas J and have nothing useful to add.
Order
The appeal is dismissed with costs.
DOUGLAS J: The appellant was the plaintiff in a District Court action for damages for personal injuries arising out of a motor vehicle accident which occurred on 19 November 1998. Following a trial she was awarded the total sum of $87,134.61 by way of damages.
She was 37 years of age at the date of the accident and 40 years at the date of judgment on 20 March 2001. In the accident she suffered neck and low back injuries. The appellant was a native of Holland who had arrived in Australia with her husband in 1985. She had qualified as a dental technician in her native country. After their arrival she secured work for about six months packing shelves in a supermarket. That was the only employment she has had in this country. She gave birth to two sons in June 1986 and February 1988 respectively. She was not employed at the date of the motor vehicle accident nor has she been employed at any time since then.
The appeal was argued on three grounds only. They are:
(a) that his Honour, the trial judge, wrongly assessed general damages as “including interest”;
(b) that his Honour’s award for impairment of earning capacity for the past and future was inadequate; and
(c) that in the circumstances the appellant ought to have been awarded costs on an indemnity basis by the learned trial judge.
The appellant was awarded the sum of $35,000 “including interest” for pain, suffering and loss of amenities. Bearing in mind that the trial took place some 2½ years after the accident, it is safe to assume that the bulk of that assessment is for such damages in the future. Therefore the amount of interest on the pre-trial assessment cannot have been very large. Assuming the appellant’s argument, based upon Rogers v Brambles Australia Ltd [1998] 1 Qd R 212 per Pincus JA at 220, is correct that the trial judge ought to have assessed interest separately, the amount which would have been calculated is not likely to have made any difference in the overall result and therefore does not warrant interference by this court: Elford v FAI [1994] 1 Qd R 258.
As to the second ground argued, the appellant’s claim at trial relied upon the evidence of one Hoey, an occupational therapist. Accepting that Hoey’s assessment of the plaintiff’s working future was quite pessimistic, and accepting that she may have undergone training as a dental technician in Australia, it is hard to justify a substantial award for loss of earning capacity in the past and for the future. Indeed for the past (although his Honour did allow nothing, he did assess the appellant’s future impairment of earning capacity (assessed globally) at $15,000).
So far as the future is concerned, one Jackson, a consultant psychologist, called on behalf of the plaintiff, confirmed that there was a “strong cognitive complainant” associated with the plaintiff’s ability to return to the workforce and confirmed, in an optimistic fashion, that if the plaintiff had some treatment from a team of specialists that assisted her with her emotional, psychological or psychiatric condition, the plaintiff would be in a better position to go back to work.
His Honour did allow in full the plaintiff’s claim for future medical treatment regarding these matters. However, his Honour reached the conclusion that he did not think that the plaintiff would ever have worked as a dental technician in Australia.
It follows, in my view, that a global assessment was appropriate. On one view his Honour the trial judge may have been entitled to award nothing for future loss of earning capacity. In any event, this was not a case, as submitted by the appellant, which required the express application of the principles espoused in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. His Honour, in my view, took a more than fair view of the appellant’s loss of future earning capacity in awarding the sum of $15,000. As it was not a sum awarded in respect of “future economic loss” by reference to a precise lost wage it was therefore unnecessary for him to make a discreet allowance for future superannuation.
As to the third ground argued, the material reveals that the plaintiff served an offer to settle under Uniform Civil Procedure Rules (“UCPR”) Chapter 9 Part V at the same time as the claim and statement of claim were served. The offer made was for $86,450 just short of the final judgment.
Pursuant to r 360 of the UCPR when considering an application to make an order for costs on an indemnity basis, a trial judge is entitled not to do so if a defendant shows that “another order for costs is appropriate in the circumstances”.
The factors taken into account by his Honour, the trial judge, in refusing an order for indemnity costs in this case were:
(a) the fact that the offer had been served contemporaneously with the claim and statement of claim;
(b) the fact that numerous of the medical reports upon which his Honour placed reliance were not generated until after the offer had been made (in particular those of Jackson and Hoey), and therefore would not have been available for consideration by the defendant at the time of the offer; and
(c) the fact that the amount eventually awarded was so close to the amount offered.
In fact at the time the offer was made, the only basis upon which the defendant could assess the claim was upon the allegations made in the plaint. The nature of the case was not clearly made out until all the medical reports had been obtained after the time for accepting the offer expired. To succeed on this ground the appellant must point to a fundamental error of principle made by his Honour in not awarding a grant of indemnity costs. In my view it cannot be said that the exercise of his Honour’s discretion was so manifestly wrong as to justify intervention by this court.
Order
It follows that the appeal should be dismissed with costs.
14
1
2