Seltsam Pty Ltd v Reid
[2021] VSCA 326
•29 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0120
| SELTSAM PTY LTD (FORMERLY WUNDERLICH LTD) | Applicant |
| v | |
| MARIA IRENE REID | Respondent |
---
| JUDGES: | BEACH, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 November 2021 |
| DATE OF JUDGMENT: | 29 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 326 |
| JUDGMENT APPEALED FROM: | [2021] VSC 653 (Forbes J) |
---
TORT – Appeal – Damages – Assessment of damages – Dust diseases – Asbestos – Mesothelioma – Damages for pain and suffering and loss of amenities – Damages awarded pursuant to Wrongs Act 1958, ss 28ID and 28IE – Whether assessment of damages of $580,000 for pain and suffering and loss of amenities manifestly excessive – Whether assessment manifestly excessive in light of amount assessed pursuant to ss 28ID and 28IE – Relevance of awards in other cases – Whether total amount awarded so high as to demonstrate error – Teubner v Humble (1963) 108 CLR 491; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Sharman v Evans (1977) 138 CLR 563; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Amaca Pty Ltd v King (2011) 35 VR 280, referred to – Reasons – Adequacy of reasons – Proposed appeal having no real prospect of success – Application for leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Masel SC with Ms K L Bradey | Colin Biggers & Paisley |
| For the Respondent | Mr J T Rush QC with Mr J R C Gordon | Segelov Taylor Lawyers |
BEACH JA
KAYE JA
NIALL JA:
As a child and growing up, Maria Reid (‘the plaintiff’) lived in Barwon Avenue, Sunshine. Her home was close to an asbestos cement sheet factory operated by Seltsam Pty Ltd[1] (‘the defendant’).
[1]Formerly known as Wunderlich Ltd.
Between 1953 and 1977, the plaintiff was exposed to asbestos from the factory in a number of ways. Her exposure came from walking past the factory on her way to and from school; playing, with other children, on mounds of dust at the rear of the factory; dust that was blown in the air in and around her home; and later, when she and her husband visited her parents. She was also exposed during a period in the mid-1970s, when she was employed at premises near the factory.
Commencing in late 2020 and early 2021, the plaintiff developed symptoms of lethargy, loss of appetite and loss of weight. On 6 April 2021, she consulted her general practitioner in respect of these symptoms. Within days, she had been diagnosed with mesothelioma. Testing also revealed the presence of Stage IV metastatic disease in her thoracic spine.
On 7 May 2021, the plaintiff commenced a proceeding against the defendant claiming damages in respect of her injuries. The plaintiff’s case was that her injuries were caused by the defendant’s negligence in exposing her to its asbestos.
On 22 September 2021, the plaintiff’s proceeding came on for trial. The plaintiff commenced her evidence-in-chief on the afternoon of the first day of the trial, but was unwell and unable to continue her evidence on day 2. Late on the second day of the trial, the defendant admitted liability. The trial then proceeded as an assessment.
On 28 September 2021, the trial concluded. On 7 October 2021, the trial judge delivered reasons for judgment[2] in which she assessed the plaintiff’s damages in the total sum of $1,034,587. On 15 October 2021, judgment was entered for the plaintiff for damages in the sum of $1,059,356. The judgment sum included an amount of $24,769 for interest.
[2]Reid v Seltsam Pty Ltd [2021] VSC 653 (‘Reasons’).
The judge’s assessment of damages was made up as follows:
– Past and future medical and other out of pocket $ 20,002
expenses, as agreed between the parties
– Griffiths v Kerkemeyer[3] (past and future) $167,464
[3](1977) 139 CLR 161.
–Gratuitous care of dependants pursuant to $247,121
s 28ID of the Wrongs Act 1958 (past and future)
–Pain and suffering and loss of enjoyment of life $580,000
–Loss of life expectancy $ 20,000
The defendant now seeks leave to appeal against the award of damages on five proposed grounds. The proposed grounds are directed to the judge’s assessment of damages in the sum of $580,000 for pain and suffering and loss of enjoyment of life. The defendant contends that this sum, on its own, is manifestly excessive; and is all the more so when one has regard to the assessment of $20,000 for loss of expectation of life and the assessment of $247,121 pursuant to s 28ID of the Wrongs Act 1958. While the defendant contends that the judge’s assessment of $580,000 for pain and suffering and loss of enjoyment of life is vitiated by specific errors (which we will come to below), its argument culminates in proposed ground 5 where it asserts that:
The total amount awarded, being the composite of sums awarded under all heads, is so inordinately high that it must be a wholly erroneous estimate of the damage.
Background facts
The plaintiff was born in 1951. She lived with her parents and two other sisters in their home in Barwon Avenue from the age of about 2, until she married at the age of 20.
The plaintiff met her husband, Barry, in 1968 or 1969. They married in 1971. After leaving school, the plaintiff worked mostly in secretarial and administrative jobs. After she and her husband had two sons, the plaintiff ceased paid employment and became a full-time mother and housewife.
The plaintiff’s husband was an auto mechanic who worked in supervisory roles in the automotive and logistics industry, until retiring some years prior to trial. The judge said that it was apparent from the evidence that the plaintiff and her husband had created a close family unit with their two sons.
The plaintiff’s hobbies in the years leading up to trial included gardening, cooking, baking and caring for a grandson who was born in 2017. The plaintiff and her husband spent time at their holiday home at Anglesea, where they loved walking their dogs. In 2020, a granddaughter was born. Prior to her diagnosis, the plaintiff anticipated having the same level of involvement with her new granddaughter as she had enjoyed with her grandson.[4] As the judge put it:
Many of Mrs Reid’s activities (gardening, looking after a preschool grandchild, and walking) are certainly indicative of somebody at age 69 who remained active and in good physical health. In retirement, it seems that she and her husband did most if not all of their activities together as a couple. Her son described them as being ‘joined at the hip’.[5]
[4]Reasons [8].
[5]Ibid [9] (footnote omitted).
Prior to her diagnosis, the plaintiff was generally in good health, and rarely visited doctors. The judge described a longstanding hypertension condition for which the plaintiff received medication, and a longstanding anxiety condition associated with a degree of agoraphobia.[6] The evidence in relation to the anxiety condition was that it ‘rarely featured on the infrequent attendances’ that the plaintiff made on her general practitioner.[7] The plaintiff’s husband gave evidence that, before his retirement, the plaintiff was able to go shopping by herself. He described her anxiety as being controlled.
[6]Ibid [10].
[7]Ibid.
As we have already said, on 6 April 2021, the plaintiff consulted her general practitioner in respect of symptoms of lethargy, loss of appetite and loss of weight. These symptoms commenced in early 2021. CT scanning revealed lung and abdominal lesions. Further tests were ordered, and the plaintiff was referred to an oncologist, Dr Shah. The abdominal lesions were benign. The lung lesion was thought most likely to be malignant, and a biopsy was arranged. A CT-guided biopsy was not diagnostic and, on 15 April 2021, the plaintiff underwent a drainage of pleural effusion. This procedure improved the plaintiff’s breathing.
The plaintiff’s second biopsy, performed on 15 April 2021, confirmed that she was suffering from mesothelioma. Dr Shah described ‘a better prognosis type of mesothelioma’. The metastatic disease in the plaintiff’s thoracic spine evident on her initial CT scan was classified as Stage IV.
The plaintiff was referred to Associate Professor John, who began treating her in May 2021. She had a VATS, also described as a talc pleurodesis on 25 May 2021 at the Royal Melbourne Hospital for the return of increasing shortness of breath. She was discharged early, because COVID restrictions then in place prevented her from having visitors and she did not cope well with being there on her own during that time.
At trial, Associate Professor John described a talc pleurodesis as ‘not a minor procedure’, involving stripping away as much as possible of the tumour, draining fluid from the lung and spraying talc into the cavity between lung and chest wall. This was intended to provoke an inflammatory response and cause the lung to stick to the chest wall, removing or reducing the space between lung and chest wall and thereby restricting the ability of fluid to collect in that space.
After various treatment options were explained to the plaintiff, it was decided that she would undergo standard chemotherapy. Immunotherapy as a first line of treatment was considered to carry a risk of kidney toxicity as a side effect and the plaintiff, only having one functioning kidney, was at a higher than average risk of complication.
As at the time of trial, the plaintiff had had four cycles of chemotherapy, the first commencing on 30 June 2021, and the last on 1 September 2021. She was, however, too unwell to continue to a fifth and sixth cycle. There has been some concern that the tumour was affecting her thoracic spine and, at the time of trial, the plan was to commence a five day course of radiotherapy to that area, commencing 27 September 2021 to inhibit any growth of the tumour so that it does not compress the spinal cord.
Beyond that, in terms of treatment, Associate Professor John did not intend to conduct any further chemotherapy cycles. He considered that immunotherapy as a second line of treatment remained an option for the plaintiff and that a decision would be made about that, after the conclusion of her radiotherapy treatment.
The history as recorded by Associate Professor John in May 2021, when he first saw the plaintiff, was that her main symptoms were shortness of breath and nausea. The evidence at trial was that, since April 2021, most of the plaintiff’s outings were for the purpose of attending medical practitioners or hospitals for tests or surgery. The plaintiff’s husband’s evidence was that the plaintiff’s condition was stable between April and May, but that she became more fatigued because of the need for her to undergo tests, and to attend doctors and hospitals.
The evidence at trial was that, from June 2021, the impact of chemotherapy was significant. In his evidence, the plaintiff’s husband described a ‘fair degree of anxiety about the prospect of chemotherapy’. He later said that the plaintiff had been pleasantly surprised on the first day of treatment when some of the supporting drugs had given her more energy. However, he said the chemotherapy had brought with it significant side effects in the form of substantially increased lethargy and fatigue; being worn out; significant and debilitating bowel problems; and significant nausea.
The judge’s reasons
After describing the evidence and setting out the background facts,[8] the judge turned to the various heads of damages that fell to be assessed — starting with attendant care (past and future).
[8]Ibid [1]–[19].
Her Honour conducted a detailed analysis of the evidence concerning the plaintiff’s need for attendant care (Griffiths v Kerkemeyer damages).[9] In the course of this analysis, the judge referred to evidence of the plaintiff first experiencing symptoms in 2020 and, by March 2021, being too unwell to attend an Easter family lunch for which one of her son’s fiancé’s family had travelled from Sydney to attend.[10]
[9]Ibid [20], [65].
[10]Ibid [28]–[29].
The judge then referred to a decrease in the plaintiff’s activities, which decrease had been seen by at least one member of the plaintiff’s family at some time before July 2020.[11] The judge referred to the plaintiff’s agitation in hospital (which agitation led to the plaintiff’s early discharge);[12] the plaintiff’s increasing need for care as time went on;[13] the diminishing quality of the plaintiff’s recovery following successive cycles of chemotherapy;[14] the increasing severity of bowel complications (with the concomitant increase in the plaintiff’s need for assistance with cleaning herself, and the increased need for the changing of clothing and bed linen);[15] the unpredictable and spontaneous nature of the episodes of loss of bowel control that required someone to be present with the plaintiff;[16] the significant amount of care required by the plaintiff in the period leading up to trial;[17] and what the plaintiff would likely need for the balance of her life.[18]
[11]Ibid [30].
[12]Ibid [38].
[13]Ibid [40].
[14]Ibid [42].
[15]Ibid [44]–[45].
[16]Ibid [46].
[17]Ibid [47].
[18]Ibid [49]–[65].
The judge referred to the evidence of Associate Professor John as to the plaintiff’s life expectancy, and noted his opinion as follows:
It’s very hard to tell, actually, the disease is in an area that could potentially cause problems in the short term, but it has been stable for quite some time now, and really the thing that would potentially cause the most problem would be the disease in the spine, so hopefully by controlling that, her life expectancy is longer. If her disease continues to grow through all of this, it would be, you know weeks. If she has a response and we can get to the next line of treatment, it could be months, or even longer than that.[19]
[19]Ibid [54] (footnote omitted).
The judge then referred to a more pessimistic opinion given by Professor Fox (an expert who was called on behalf of the defendant). Her Honour noted that Professor Fox’s more pessimistic opinion was premised on an assumption that the plaintiff was suffering from intractable pain and on narcotic medication.[20]
[20]Ibid [60].
Ultimately, the judge accepted a submission made by the plaintiff that her prognosis was ‘best assessed on the basis of an allowance of 12 weeks from 28 September 2021’.[21] As to the plaintiff’s needs created by her disease, the judge accepted the evidence of an occupational therapist, Natala Cogger, that the plaintiff would spend the last weeks of her life completely bed-bound; needing greater assistance with transfers, the maintenance of skin integrity and the prevention of pressure sores; and with carers managing her need for supplemental oxygen.[22]
[21]Ibid [63].
[22]Ibid [64].
Next, the judge considered the plaintiff’s claim for damages for her loss of capacity to provide gratuitous care to dependants — a claim permitted to be made by s 28ID of the Wrongs Act. The judge recorded that no issue was taken as to the dependency of the plaintiff’s grandchildren on the plaintiff — the evidence being that the plaintiff had provided, and intended to continue to provide, her grandchildren with gratuitous care within the meaning of s 28ID.[23]
[23]Ibid [68].
The judge carefully analysed the evidence about the care that the plaintiff had provided for her grandchildren prior to her diagnosis in April 2021, and then set out her conclusions about the likely care that the plaintiff would have provided but for her illness, before applying an hourly rate given in evidence, a discount rate for present payment and a discount for vicissitudes.[24] This led the judge to conclude that the plaintiff’s damages for the loss of her capacity to provide gratuitous care to her grandchildren assessed in the total sum of $247,121. As we have already observed, no issue was taken by the defendant in this Court in relation to that calculation, or to the plaintiff’s entitlement to the receipt of that sum as part of her damages.
[24]Ibid [73]–[89].
The judge then dealt with past and future medical and other out of pocket expenses, noting that these were agreed between the parties in the sum of $20,002.[25]
[25]Ibid [90].
Finally, the judge turned to the question of pain and suffering, loss of enjoyment of life and loss of expectation of life. Her Honour dealt with these issues under the heading ‘General Damages’. In light of the defendant’s proposed grounds of appeal, it is appropriate to set out the entirety of her Honour’s reasons under this heading. Her Honour said:
Many of the aspects of Maria Reid’s life that are relevant to an assessment of general damages are detailed in the foregoing reasons. I include in this the references to problems managing anxiety in the context of diagnosis which did feature through the evidence in a number of ways. She is the matriarch of a close and loving family, in a lifelong companionable marriage. She had recently become a grandmother for the second time and enjoyed and intended an active and involved participation in the lives of her grandchildren. She and Barry enjoyed time together at Anglesea where they enjoyed long walks. The evidence touched on her pride in her appearance, and that of her homes. It was also my clear impression from [her son] Simon Reid’s evidence in particular, that she hid any concern she might have noticed in her own behaviour or capacity from her family for as long as was possible. Her present quality of life is poor and has been so for much of the time since diagnosis, overwhelmed as it has been with interaction with the medical profession. Barry Reid described there being only one day where she was able to sit out in the sun in her garden. He described that as a beautiful day in the midst of great suffering.
The defendant submitted that a figure of $250,000 was an appropriate sum for pain and suffering and loss of enjoyment of life. The plaintiff submitted that $600,000 would be a fair and reasonable award. Mesothelioma is presently incurable and inevitably fatal. Barry Reid movingly expressed how he was facing the prospect of the future. When asked if the doctors had outlined what the future might hold, he said: ‘Not really. I’m not sure that we really want to know too much, to be honest. I’d be scared to tell [her]’.
In considering an appeal against a jury award of $730,000 for general damages in a mesothelioma case, the Court of Appeal [in Amaca Pty Ltd v King[26]] said whilst this was the highest jury award of damages for mesothelioma in Victoria it was one that was proportional to previous jury verdicts. The Court referred to Mr Rabenalt, then aged 52, who in 1988 was awarded $426,000 compensatory damages, a component of which was economic loss. In Crimmins v Stevedoring Industry Finance Committee, the plaintiff was nearly 62 years at the time of trial. He was awarded $833,000 in 1998. Given his age and the fact that he’s been unable to work for a year before trial, the Court estimated his general damages award to have exceeded $500,000. Crimmins was the last jury verdict for the development of mesothelioma before King in 2011. King itself is now ten years old.
I have regard for the observation of the Court of Appeal that these three jury verdicts, spanning 30 years are proportionate to each other given the passage of time between them. The task of a judge in assessing damages is different to that of a jury (or of a court assessing whether a jury verdict is excessive). My task, like that of a jury, is to arrive at a figure representing fair and reasonable compensation in the particular circumstances of this case. A judge inevitably brings professional experience of the range of outcomes but I do not approach the task by seeking out a norm or standard for damages to determine whether they are proportionate to the injury sustained by Mrs Reid. In Victoria, civil juries bring the community perspectives to an assessment of what value is proportionate in cases that they determine. In Planet Fisheries, the High Court said ‘It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation’. In Victoria a judge may have regard for the value that wider community places on pain and suffering as reflected in jury verdicts, in this case when occasioned by persons contracting mesothelioma. It remains important to have regard for the expression of community ideas of fairness and moderation even while civil jury trials, such as had been requested by this plaintiff, are suspended by the Covid pandemic.
I am also mindful of the further comment of the Court of Appeal [in Amaca v King]:
We acknowledge that there is a significant gap between sums which appear to have been awarded by judges in other states for pain and suffering damages for mesothelioma and the sum awarded by the jury in this case — and, very probably, in their day by juries in Rabenalt and Crimmins. Part of the difference however, is explicable on the basis of different statutory regimes. As has been seen, in this state there is no statutory mandate for referring to other decisions in order to determine damages for non-economic loss the result of asbestos related injuries, and the upper limit on non-economic loss damages does not apply. There is also the possibility that judges ‘continue to apply past precedents even after … ”large and relatively permanent” changes have occurred’. Juries of course do not.
The injury caused to Maria Reid has not simply diminished her quality of life, it is destroying it in every aspect as surely as the malignancy is invading her lungs. In my view, an award of $580,000 is an appropriate figure for general damages, together with damages at $20,000 for the objective loss of life expectancy.[27]
[26](2011) 35 VR 280 (‘Amaca v King’).
[27]Ibid [91]–[96] (footnotes omitted).
Proposed ground 1
Proposed ground 1 provides:
The judge’s assessment of $580,000 as general damages (in addition to $20,000 for loss of expectation of life):
(a)is vitiated by specific error, namely a failure to take any or sufficient account of relevant considerations, namely the intensity and duration of the pain, suffering and loss; and/or
(b)is manifestly excessive, even without reference to the award of damages under s 28ID of the Wrongs Act.
In support of proposed ground 1, the defendant submitted that there were two principal factors in assessing the plaintiff’s damages for pain and suffering and loss of amenities: the intensity of the pain, suffering and loss, and their expected duration.
The defendant submitted that the evidence disclosed that the plaintiff suffered mild to modest pain and suffering and loss over about 15 months, followed by moderate pain and very considerable suffering and loss over an expected total duration of about 8 months. In making that submission, the defendant accepted that, from about June 2021, the plaintiff had suffered, and would continue to suffer, severe symptoms and consequences. The defendant submitted, however, that in such circumstances, ‘the assessment of $580,000 bespeaks of likely error’.
Next, the defendant submitted that, ‘while not of such major significance’, the plaintiff’s longstanding agoraphobia and restrictions imposed in response to COVID-19 were also relevant. It submitted that, to the extent that the plaintiff would in any event have been precluded from enjoying amenities, ‘she is entitled only to a reduced award’.
The defendant also submitted that the assessment of pain and suffering and loss of amenities of life is concerned with a claimant’s subjective feelings and losses, not a comparison of like cases. In support of that submission, the defendant relied upon Skelton v Collins[28] and Planet Fisheries Pty Ltd v La Rosa.[29] The defendant submitted that, in striving to ensure that the award in each particular case is fair and reasonable compensation for the injuries received and disabilities caused, proportionate to the situation of the claimant and not to the situation of other claimants in other actions, the judge making the assessment ‘will be aware and give weight to current general ideas of fairness and moderation’.[30]
[28](1966) 115 CLR 94 (‘Skelton’).
[29](1968) 119 CLR 118 (‘Planet Fisheries’).
[30]Ibid 125.
Additionally, the defendant submitted that the general awareness (be it of trial judges or judges on appeal) is ‘multifactorial’. With appropriate caution, it includes a general awareness of awards in other cases: not only other mesothelioma cases, but across the range of personal injury cases that come before the courts. The defendant submitted that, insofar as assistance is gained from an awareness of such awards, such an awareness supported the defendant’s contention that the award of general damages in the present case is manifestly excessive.
Consideration
The defendant’s submissions as to the relevant factors to be taken into account in assessing damages for pain and suffering and loss of amenities, and its submissions about the relevance of awards in other cases may be accepted. Its submission, however, that the award of general damages in this case is manifestly excessive must be rejected.
The defendant’s negligence has caused the plaintiff to suffer an injury which, as the judge correctly described it, ‘has not simply diminished her quality of life, it is destroying it in every aspect’.[31] The level of the pain and loss of enjoyment of life of those circumstances, coupled with the obvious mental anguish caused by them, cannot be overstated. Every part of the plaintiff’s life is being slowly and inexorably destroyed by the injury caused to her by the defendant’s negligence.
[31]Reasons [96].
To the extent that the defendant submitted that the judge’s assessment of the plaintiff’s pain and suffering and loss of enjoyment of life did not properly reflect the plaintiff’s pain levels (which the defendant described as ‘mild’ or ‘moderate’ at various times), that submission must be rejected.
The severity of the plaintiff’s pain and consequential loss of enjoyment of life was well described by Ms Cogger following her examination of the plaintiff on 23 June 2021. Ms Cogger recorded the plaintiff’s complaint that she experienced pain in her right chest, which the plaintiff rated at 6/10 using the Numerical Pain Rating Scale (NPRS).[32] The plaintiff told Ms Cogger that, while this pain comes ‘every now and then’, when it was present it would range between 5–7/10. Ms Cogger also recorded the plaintiff’s complaints of breathlessness, including a complaint that her breathlessness increased to 5/10, ‘intense’, after transferring from sitting to standing; 7/10 after bending forward into a cupboard; and 8/10 when walking short distances within her home.
[32]The NPRS is a scale on which individuals subjectively rate their pain as a number between 0 (no pain at all) and 10 (worst imaginable pain).
Additionally, Ms Cogger reported the plaintiff’s difficulty with sleep (most nights sleeping between 8.30 and 11.30 pm, and then being awake until about 2 am before falling back to sleep until 6 am). Ms Cogger said that the plaintiff scored 82 per cent on a tool that was used to assess the severity and impact of fatigue on daily functioning. This score showed that fatigue was having a severe impact on the plaintiff.
Moreover, as bad as the pain and suffering has been to date, the plaintiff has the grim prospect of even worse to come. As Associate Professor John said in his evidence:
[S]o mesothelioma can be an incredibly painful condition. Mainly because of where it is, it’s on the lining of the lung where a lot of the nerve roots from the spine come out. And compression of those nerve endings can be really painful. If it’s spread into bone or elsewhere, that can also cause quite a lot of pain. So there’s definitely a big potential, a lot of mesothelioma patients have quite a lot of pain unfortunately.
While the defendant correctly submitted that the duration of any pain and suffering and loss of enjoyment of life that might be suffered by an injured plaintiff is a relevant matter to take into account when assessing damages for pain and suffering and loss of enjoyment of life, its submission that the judge failed to take the likely length of the plaintiff’s pain and suffering into account must be rejected. Two possible cases may be contrasted: first, a claimant who suffers pain and suffering and disability for a period of 15 months from an injury which is curable and cured at the end of that time, leaving that claimant to go on and lead a normal life thereafter; and secondly, the present plaintiff, who has known from shortly after her diagnosis that her injury will progress over time and is incurable and is only likely to become more painful and debilitating. The plaintiff’s vastly greater loss of enjoyment of life over the loss of enjoyment of life that might be suffered by the claimant who is not under a death sentence, and who will go on to recover and enjoy a normal life, is obvious.
The defendant’s submission that the plaintiff’s pre-existing anxiety condition required the judge to award a reduced amount for pain and suffering and loss of enjoyment of life is without substance. To the contrary, the medical evidence discloses that as a result of her premorbid anxiety, the effects of her mesothelioma have been all the greater on the plaintiff. For example, Ms Cogger’s evidence was that the plaintiff needed the support of her family ‘due to the exacerbation of her mental health and the associated stress this has had on her capacity to manage and initiate activities of daily living’.
In Amaca v King, the Court of Appeal noted what was then the recent award of $600,000 in damages for defamation to a barrister.[33] In Rogers v Nationwide News Pty Ltd,[34] Hayne J observed that a majority of the High Court in Carson v John Fairfax & Sons Limited[35] said that an appellate court hearing appeals in both defamation and personal injury cases needs to ensure that there is an appropriate or rational relationship between the scale of awards in the two classes of case. As was later said in Theophanous v Herald & Weekly Times Limited:[36]
That relationship stands on the foundation represented by the scale of awards for general damages in cases of serious physical injuries which, in their severity and disabling consequences, may transcend injury to reputation.[37]
[33](2011) 35 VR 280, 321 [180].
[34](2003) 216 CLR 327.
[35](1993) 178 CLR 44, 58–59.
[36](1994) 182 CLR 104.
[37]Ibid 132.
There can be no doubt that over the last ten years, awards of damages have increased, both in defamation and personal injury cases. For present purposes, one example is sufficient: Nationwide News Pty Ltd v Rush,[38] where the Full Court of the Federal Court held that a trial judge’s award of $850,000 for non-economic loss in a defamation case (being part of a total assessment of in excess of $2.8 million) was not manifestly excessive.[39]
[38](2020) 380 ALR 432.
[39]See also Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674 where another plaintiff in another defamation proceeding was awarded $600,000 damages for non-economic loss.
Turning back to the facts of the present case, the defendant was undoubtedly correct to submit that the assessment of the plaintiff’s pain and suffering and loss of enjoyment of life is concerned with her subjective feelings and losses. Having examined all of the evidence for ourselves, however, we are unable to see any basis upon which it could be said that the judge’s assessment of $580,000 for the pain and suffering and loss of enjoyment of life that the plaintiff has suffered, still suffers, and will continue to suffer until her death, is in any way excessive. To the contrary, we think it represents a fair and reasonable assessment in all of the circumstances.
Proposed ground 1 must be rejected.
Proposed ground 2
Proposed ground 2 provides:
The judge’s assessment of $580,000 as general damages for pain and suffering and loss of amenities awarded together with the award of damages under s 28ID of the Wrongs Act is:
(a)vitiated by a specific error in combining an award under s 28ID and an unmoderated award of general damages; and/or
(b)produces an award of damages that is manifestly excessive.
In support of proposed ground 2, the defendant referred to a sentence in the joint judgment of Gibbs and Stephen JJ in Sharman v Evans[40] as follows:
Our approach conduces, we believe, to clarity of analysis while emphasising the extent to which damages for loss of amenity must interact with other heads of damages, including that concerned with the defraying of future expenditure reasonably incurred by the plaintiff and attributable to her injuries.[41]
[40](1977) 138 CLR 563 (‘Sharman’).
[41]Ibid 575.
The defendant submitted that the award of $580,000 was made in respect of all of the plaintiff’s pain and suffering and loss of amenities caused by the mesothelioma; and that the loss of capacity to provide assistance to members of her family was clearly a significant component of her loss of amenity, as well as her reaction to that loss likely being a significant component of her pain and suffering. The defendant then submitted that combining the amount of $580,000 awarded for pain and suffering and loss of enjoyment of life with the amount awarded under s 28ID ‘produces a distorted judgment sum’. The defendant’s contention was that the judge compensated the same loss under two different heads of damages.
In further support of this submission, the defendant referred to the judgment of Windeyer J in Teubner v Humble.[42] In that case, his Honour said:
What is usually contemplated by the description [pain and suffering] is actual physical pain. Of all forms of damage this is perhaps the one that is least susceptible of monetary assessment. But insofar as the possession of money can in a particular case give pleasure or provide comfort, money can properly be said to compensate for pain and suffering. It is of some importance that persons who calculate damages under separate heads should bear in mind that the distress of mind and the feeling of frustration that comes from an incapacity to take part in activities are often spoken of as involved in ‘loss of amenities’. If so they are not to be introduced again under the heading ‘pain and suffering’. This merely illustrates that, as I have said, damages that result from personal injuries cannot ultimately be regarded as made of completely separate components. I would add that I appreciate [counsel for the appellant’s] contention that the appellant’s worry and anxiety that he is not able to provide for his wife and family are a consequence of the accident. But to regard them as entering directly into the calculation of damages would, I think, be a serious mistake. The worry and anxiety arise because he has lost an economic capacity, his ability to earn money. That loss is to be compensated for by giving him such sum as it appears reasonably represents what but for the accident he probably would have earned.[43]
[42](1963) 108 CLR 491, 505–508 (‘Teubner’).
[43]Ibid 507–8.
The parties’ submissions at trial
At trial, the plaintiff submitted that $600,000 was an appropriate assessment of her pain and suffering and loss of enjoyment of life; and that her damages pursuant to s 28ID of the Wrongs Act (past and future) assessed at $327,552. The defendant submitted that $250,000 was an appropriate figure for ‘general damages and loss of life’; and that if the judge awarded anything pursuant to s 28ID, then a ‘large reduction’ would have to be made reflecting, amongst other things, various factual contingencies and circumstances.
Consideration
Of some significance so far as the present proposed ground of appeal is concerned, the defendant made no submission at trial about any interrelationship between damages to be awarded under s 28ID and damages to be awarded for pain and suffering and loss of enjoyment of life.
Specifically, no submission was made (of the kind now made by the defendant) that care needed to be taken to ensure that the plaintiff was not compensated for the same loss under two heads of damages. To the contrary, on the issue of pain and suffering and loss of enjoyment of life, the defendant submitted that, ‘clearly the plaintiff was part of a close family, clearly her grandchildren were very important to her, as was regular contact with her children’. By that submission, the defendant might be taken to have accepted, at least at trial, that an appropriate aspect of the plaintiff’s pain and suffering and loss of enjoyment of life was the interference with her relationship and interactions with her grandchildren, caused by her injury. In that respect, we note the evidence given by Ms Cogger as to the importance to the plaintiff of her grandchildren and her interactions with them as follows:
[F]rom the conversation I had with Mrs Reid, it was very much that her grandchild, and then subsequently grandchildren, bring her a lot of joy, so at the moment [her] son is sending a video every day, Mrs Reid[44] commented that that’s all that she lives for at the moment is to see this video, when describing — she actually became teary when discussing the fact that she was no longer able to care for [her grandson] and at the initial assessment she became teary, because she enjoyed doing craft and taking him to the park and doing various activities, and I got the impression that it gave her a lot of joy and it kept her active and particularly considering her pre-existing mental health, like I think that that is a factor that gave her purpose and enjoyment in her life, and she had lots of activities and craft and various things that she enjoyed doing.
[44]While the transcript recorded Ms Cogger’s evidence as ‘Mr Reid’, in context (and from the content of Ms Cogger’s reports tendered in evidence), it is plain that the reference in the transcript to Mr Reid should have been a reference to the plaintiff.
At the heart of proposed ground 2 is the contention that the judge compensated the plaintiff for the loss of the ability to care for her grandchildren, both under s 28ID of the Wrongs Act and as part of the judge’s assessment of $580,000 in respect of pain and suffering and loss of enjoyment of life. That submission must be rejected.
First, there is nothing in the judge’s reasons which suggests that her Honour (a very experienced trial judge in this area) committed such a basic error as doubly compensating the plaintiff in respect of the same loss.
Secondly, we see nothing in the figures assessed by the judge ($580,000 for pain and suffering and loss of enjoyment of life, together with $247,121 under s 28ID), either individually or in combination, which suggests that there has been some error of principle committed by the judge in her assessment of the plaintiff’s damages. The amount awarded pursuant to s 28ID was arrived at by a process of calculation contemplated by that section and s 28IE of the Wrongs Act.[45] It was calculated by multiplying the number of hours since September 2020 in which the plaintiff would have provided (but due to her injury could not provide) care for her grandchildren by the appropriate commercial rate for the provision of such care. That calculation produced a fair and reasonable assessment of damages, which the plaintiff was permitted to claim in accordance with the statutory provisions, and with which the defendant takes no issue in this Court. The calculation performed by the judge did not involve or include any compensation for the distress and loss of amenity to the plaintiff arising from her inability to be close to, and to be able to provide loving care to, her grandchildren.
[45]For completeness, we note that, by virtue of s 28IF(2)(a), s 28ID(3) does not apply to the plaintiff’s proceeding.
Similarly, as we have already said, we see nothing excessive in the award of $580,000 for the plaintiff’s pain and suffering and loss of enjoyment of life having regard to the nature and extent of those matters as revealed by the evidence led at trial and to which we have already referred.
It follows that proposed ground 2 must be rejected.
Proposed ground 3
Proposed ground 3 provides:
In informing herself of and having regard to current general ideas of fairness and moderation, the judge erred in:
(a)giving undue weight to awards given by three juries over three decades;
(b)failing to look, with appropriate caution, to awards made by Victorian juries and judges in other cases involving significant pain, suffering and loss of amenity; and/or
(c)failing to look, with appropriate caution, to awards made by judges sitting without juries in mesothelioma cases heard in other Australian jurisdictions.
In support of proposed ground 3, the defendant submitted that, in assessing damages for personal injury, a judge is required to be aware of, and give weight to, current general ideas of fairness and moderation. The defendant submitted that that awareness must be based on general experience and not formed ad hoc by a process of considering particular cases and endeavouring to allow for differences between the circumstances of both cases. The source of these submissions is, of course, the High Court’s judgment in Planet Fisheries.[46]
[46]See, in particular, Planet Fisheries (1968) 119 CLR 118, 125.
The defendant submitted that the judge erred in the manner described in paragraphs (a), (b) and (c) of proposed ground 3 because her Honour’s reference to ‘three verdicts over about 30 years is a very small sample’. The defendant submitted that each of those cases was decided on its own facts and, being the verdict of a jury, there were no reasons.
The defendant submitted that if one looked more broadly than at the three jury verdicts the judge looked at then one would conclude that those cases did not support the award made by the judge in the present case. Specifically, the defendant relied upon the decision of Corboy J in Lowes v Amaca Pty Ltd,[47] the relevant parts of which (including a survey of other cases undertaken by Corboy J) is set out in Amaca v King.[48] The plaintiff also relied upon the more recent decisions of Amaca Pty Ltd v Werfel[49] and Kennedy v CIMIC Group Ltd and CPB Contractors Pty Ltd.[50]
[47][2011] WASC 287 (‘Lowes’).
[48](2011) 35 VR 280, 319–20 [176].
[49][2020] SASCFC 125, [416].
[50][2020] NSWDDT 7.
Apart from the defendant’s correct references to the High Court’s decision in Planet Fisheries, there is no substance in its submissions made under proposed ground 3.
First, none of the decisions concerning the particular awards of damages relied upon by the defendant in this Court (other than the reference in Amaca v King to Lowes and the cases referred to therein)[51] were cited to the judge. The only reference the defendant made to any particular award of damages in its final submissions to the judge was to Amaca v King. The submission was made by the defendant in reply submissions as follows:
[I]n relation to the general damages that has been put to your Honour as appropriate in the vicinity of $600,000, the reference to Amaca v King, we say, your Honour, it may be interesting, but the fact that an award made by a jury of what everyone agrees was a surprisingly high figure, the fact that that was not appealable doesn’t mean that it’s what a judge would or should award for general damages. Certainly, we accept that there were increases from the days that the decisions referred to were awarding $130,000 or $150,000 for general damages in these sorts of situations, but we say, of course, that your Honour would always come back to the facts of this case.
[51](2011) 35 VR 280, 319-20 [176].
Secondly, the defendant’s submissions in this Court appear to be critical of the judge for not engaging in the very exercise held to be erroneous by the High Court in Planet Fisheries.[52]
[52](1968) 119 CLR 118, 125.
Thirdly, the fact that 10 years after Amaca v King was decided, the judge awarded $580,000 for pain and suffering and loss of enjoyment of life, when Mr King had received an award of $730,000 for his pain and suffering and loss of enjoyment of life caused by his mesothelioma, shows that the judge did not give undue weight to the awards to which she referred. Rather, her Honour determined, in the plaintiff’s individual circumstances, that $580,000 was fair and reasonable compensation for the plaintiff’s injuries and disabilities; and also that it was a sum which was proportionate to the plaintiff’s situation.[53]
[53]See Planet Fisheries (1968) 119 CLR 118, 125; Reasons [94].
Fourthly, we see no error in the judge’s limited references to, nor use she made of, the three awards of damages to which she referred.[54] Moreover, the judge was entitled to refer to and cite the passage in Amaca v King that formed part of her Honour’s reasons for her assessment of the plaintiff’s general damages.[55]
[54]Reasons [93]–[95].
[55]Ibid [95].
It follows that proposed ground 3 must be rejected.
Proposed ground 4
Proposed ground 4 provides:
The judge erred in failing to give adequate reasons for the award of $580,000 for pain and suffering and loss of amenities.
In support of proposed ground 4, the defendant referred again to the judgment of Gibbs and Stephen JJ in Sharman, wherein their Honours said:
Moreover where the assessment of damages is undertaken by a judge sitting without a jury it is, we think, most desirable that the process of assessment should be described in the reasons for judgment. As was pointed out by Sachs LJ in George v Pinnock it is only by the setting out in a judgment of the main components of an award of damages, or at least of the approach taken to each component, that the parties may obtain a proper insight into the process of assessment and an adequate opportunity of seeking the correction of error on appeal.[56]
[56]Sharman (1977) 138 CLR 563, 572 (citation omitted).
The defendant submitted that, even allowing for the intuitive nature of an assessment of damages for pain and suffering and loss of enjoyment of life, the judge was required to show a path of reasoning in respect of:
·the weight, if any, given to the quality and relatively short duration of the plaintiff’s pain and suffering;
·the interrelationship of the ‘large award’ under s 28ID with the ‘large award’ in respect of pain and suffering and loss of amenities; and
·the application of community values as discerned from other cases in arriving at the award made in this case.
In the light of these submissions, it is appropriate to set out the entirety of the defendant’s final submissions at trial on the question of general damages.
Defendant’s submissions at trial on general damages
At the conclusion of the evidence, the defendant addressed first, followed by the plaintiff, followed by the defendant in reply. In its primary submissions, the defendant, on the issue of general damages, said:
Turning to general damages, again, we are in somewhat of a difficult position given we haven’t heard from the plaintiff. We have heard from her husband and from one of her sons. Clearly the plaintiff was part of a close family, clearly her grandchildren were very important to her, as was regular contact with her children. To some extent the dislocation of the family has been part of everyone’s lives, at least for a couple of years. But we can’t really, we say, assess the plaintiff’s emotional reaction generally to what’s occurred in the absence of evidence from her knowing she had the history of psychological symptoms she did. They seem to have been distressing, they seem to have been issues throughout her life, and certainly even as late as 18 December 2019. So there would need to be some way of recognising the fact that it would be only a portion of the plaintiff’s pain and suffering that would be attributable to what’s now occurring. But we say that doing the best we can that an appropriate figure for general damages and loss of life is $250,000.
Following the plaintiff’s final address, the defendant submitted the following in reply to the plaintiff’s submissions on the issue of general damages:
In relation to the last point, in relation to the general damages that has been put to Your Honour as appropriate in the vicinity of $600,000, the reference to Amaca v King, we say, Your Honour, it may be interesting, but the fact that an award made by a jury of what everyone agrees was a surprisingly high figure, the fact that that was not appealable doesn’t mean that it’s what a judge would or should award for general damages. Certainly, we accept that there were increases from the days that the decisions referred to were awarding $130,000 or $150,000 for general damages in these sorts of situations, but we say, of course, that Your Honour would always come back to the facts of this case. In this case we have a certain period of time over which symptoms have been experienced, we have a plaintiff who has had no pain for much of that period of time, and someone who has not spent lengthy periods of time in hospital away from family, but has been able to be at home throughout, together with the pre-existing issue of her psychological condition, which because of the way things have turned out, Your Honour hasn’t been able to make a comparison of other than by other material, so we say that in those circumstances it was an appropriate figure for the defendant to put. We did not put it in a disingenuous away, but on taking into account the multiple factors in the case.
Consideration
There is nothing in the defendant’s complaint about the adequacy of the judge’s reasons.
First, the judge’s reasons on the question of pain and suffering and loss of enjoyment of life were responsive to the defendant’s submissions made in final address and its subsequent reply. The judge could not have been expected to write reasons responsive to submissions that were not made to her at trial.
Secondly, to the extent that the defendant made submissions about the level and duration of the plaintiff’s pain and disability when dealing with other heads of damage, the judge dealt with those submissions appropriately in those parts of her Honour’s reasons dealing with those heads of damage.
Thirdly, the judge’s path of reasoning leading to her assessment of $580,000 for the plaintiff’s pain and suffering and loss of enjoyment of life is more than adequately exposed in her Honour’s reasons. Having made the various findings she made during the course of her reasons, the judge summarised its effect on the plaintiff as not simply diminishing her quality of life but destroying every aspect of it.[57]
[57]Reasons [96].
Fourthly, in choosing a figure which is fair and reasonable, and proportionate to the situation of the plaintiff, there is not a great deal that can be said as to why one figure in the range might be picked in preference to another. Plainly, the judge thought that an amount of $600,000 was fair and appropriate compensation for the plaintiff’s pain and suffering, loss of enjoyment of life and loss of expectation of life. Her Honour then deducted the ‘conventional award’[58] for loss of expectation of life, $20,000, so as to arrive at a figure for pain and suffering and loss of enjoyment of life of $580,000.[59]
[58]As to the ‘conventional award’ in respect of loss of expectation of life, see Sharman (1977) 138 CLR 563, 584; Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326, 352 [73].
[59]While it was not the subject of any argument at trial or in this Court, $20,000 has been the ‘conventional award’ for loss of expectation of life for a considerable period of time (see, eg, Victorian WorkCover Authority v Gray’s House Removalists Pty Ltd [2005] VSC 541, [93]). It may be that, given the change in the value of money that occurs over time, that the ‘conventional award’ should be increased.
In our respectful opinion, the reasons the judge gave for awarding $580,000 in respect of the plaintiff’s pain and suffering and loss of enjoyment of life more than adequately disclose her Honour’s path of reasoning. Many judges would have written less. There is, as we have already said, simply no substance in the defendant’s complaint about the adequacy of the judge’s reasons.
It follows that proposed ground 4 must be rejected.
Proposed ground 5
Proposed ground 5 provides:
The total amount awarded, being the composite of sums awarded under all heads, is so inordinately high that it must be a wholly erroneous estimate of the damage.
In support of proposed ground 5, the defendant repeated its arguments under proposed grounds 1, 2 and 3. We have rejected those arguments. Accordingly, proposed ground 5 must fail.
We would simply add that, having looked at all of the evidence for ourselves, we do not think that it is reasonably arguable that the judge’s total assessment of $1,034,587 could be described as erroneous — let alone a ‘wholly erroneous estimate of the [plaintiff’s] damage’.
Conclusion
The defendant’s application for leave to appeal will be refused.
- - -
0
11
0