Spaulding v Eirth
[2016] TASFC 5
•7 September 2016
[2016] TASFC 5
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Spaulding v Eirth [2016] TASFC 5
PARTIES: SPAULDING, Geoffrey Arthur
v
EIRTH, Troy Leslie
FILE NO: FCA 276/2015
DELIVERED ON: 7 September 2016
DELIVERED AT: Hobart
HEARING DATE: 25 August 2015
JUDGMENT OF: Blow CJ, Wood and Pearce JJ
CATCHWORDS:
Appeal and New Trial – General principles – Excessive or inadequate damages – General principles – Circumstances justifying interference by appellate court – Award inconsistent with findings of fact and law.
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264, distinguished.
Aust Dig Appeal and New Trial [109]
Damages – Particular awards of general damages – Tasmania – Cervical spine injury and chronic pain syndrome – Award of $90,000 general damages for pain and suffering and loss of amenities.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Appellant: K E Read SC
Respondent: C H Hobbs
Solicitors:
Appellant: Page Seager Lawyers
Respondent: Baker Wilson Lawyers
Judgment Number: [2016] TASFC 5
Number of paragraphs: 136
Serial No 5/2016
File No FCA 276/2015
GEOFFREY ARTHUR SPAULDING v TROY LESLIE EIRTH
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
WOOD J (Dissenting)
PEARCE J
7 September 2016
Orders of the Court
Leave to amend notice of cross-appeal refused.
Appeal allowed.
Cross-appeal allowed.
Judgment varied by reducing judgment sum from $361,913 to $215,913.
Serial No 5/2016
File No FCA 276/2015
GEOFFREY ARTHUR SPAULDING v TROY LESLIE EIRTH
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
7 September 2016
This appeal relates to an assessment of damages in a personal injuries action. On 16 October 2007 the respondent, Troy Eirth, was injured as a result of the negligent driving of the appellant, Geoffrey Spaulding. The respondent brought an action for damages in respect of his injuries. Interlocutory judgment for damages to be assessed was entered on 18 August 2008. Estcourt J assessed the damages in the sum of $361,913 on 2 April 2015. His Honour provided written reasons to the parties, but did not make those reasons public.
It appears from his Honour's reasons at [178] that the sum of $361,913 was made up as follows:
"Past and future loss of earning [sic] $140,000
The possibility of future surgery $15,000
Past and future medical expenses $35,400
Past and future pharmaceutical expenses $40,000
Heating expenses $32,513
Travelling expenses $4,000
Domestic assistance $20,000
General damages. $75,000
TOTAL: $361,913"
The appellant has appealed from that judgment, contending that his Honour made a series of errors which resulted in the judgment sum being too high. The respondent has cross-appealed, contending that his Honour made errors that resulted in the judgment sum being too low. Neither party has challenged his Honour's conclusions as to the heating expenses ($32,513) and the travelling expenses ($4,000). All of the other components of the judgment sum have been challenged by one or both of the parties.
But it is not as simple as that. The respondent also contends that the learned primary judge erred by failing to allow any damages in respect of expenditure on motor vehicle maintenance and servicing. Also, the respondent has applied for leave to amend the notice of cross-appeal to add an additional ground, and that application has been opposed.
The respondent was aged 35 at the time of the motor vehicle accident, and already partly incapacitated. He has had a bad back ever since 1992, when he suffered a lifting injury to his lumbar spine while working at a sawmill. In August 2007, some two months before the motor vehicle accident, he suffered an injury to his right hand when repelling intruders in a pet food shop.
It was common ground that, as a result of the motor vehicle accident, the respondent suffered a flexion injury to his cervical spine, a fracture to a bone in his right foot (the second distal metatarsal), some exacerbation of his right hand injury, and a chronic pain syndrome. It was agreed that he should recover $3,000 in respect of the cost of ophthalmological treatment. He contended that he had developed an intolerance to the use of a contact lens in the right eye as a consequence of the injury to his cervical spine. He also contended that he suffered from severe headaches as a result of the accident.
In his reasons, the learned primary judge made a number of findings in relation to the respondent's injuries and their sequelae:
· At [127], he concluded that the motor vehicle accident was a cause of the respondent's "present condition". I take him to have been referring to the chronic pain condition. His Honour emphasised that the accident was "a cause", and not the sole cause.
· At [132], his Honour concluded that the motor vehicle accident was "at least a cause" of the pain in the respondent's left arm, below the shoulder.
· At [142], his Honour concluded that the chronic pain syndrome "embraces his complete symptomatology, and that the accident was a cause of his condition".
· At [143], his Honour left open the question whether the chronic pain syndrome was "a neurological or a psychological illness or disorder, or a combination".
· At [144], his Honour said he was not satisfied that the respondent's severe headaches were unrelated to his motor vehicle accident. It is clear that his Honour had in mind the High Court's decision in Watts v Rake (1960) 108 CLR 158 and that, in the light of that case, he was treating the respondent's severe headaches as having been caused by the accident.
Past and future loss of earning capacity
The appellant contends that nothing should have been awarded under this head. In his reasons at [147]-[159], the learned primary judge made findings to the effect that, although the respondent's earning capacity was impaired by his injuries, he would never have undertaken any remunerative work if the accident had not occurred, and that the impairment of his earning capacity was therefore not compensable. However, at [162], his Honour went on to assess damages under this head in the sum of $140,000 as if the respondent would have exploited his earning capacity to some extent, and as if the impairment of his earning capacity was compensable.
The respondent contends that the award of $140,000 under this head was manifestly inadequate.
For the reasons set out below, I have come to the conclusion that the award of $140,000 under this head cannot stand, and that the respondent must recover nothing under this head.
The matters taken into account by the learned primary judge in relation to the respondent's pre-accident work history were as follows:
· He left high school during grade 10 and worked as an apprentice butcher for 12 to 14 months, gaining considerable skills.
· He left that employment before turning 18 and went to work as a mill hand with a sawmiller and processor. There he gained forklift truck skills, drove a railed device called a Travis truck, and was engaged in drying and reconditioning kiln dried timber, and in laminating, planing and processing timber. He continued there until he suffered his back injury.
· Thereafter he "never worked again in either full-time employment or in a remunerative business or other occupation": at [11]. (His Honour made subsequent findings as to a little part-time employment.)
· He received workers compensation from 1992 until 1996. He was fit for light duties, but was laid off because his original position needed filling by someone fully fit.
· At that time he and his wife lived on a small holding of 30 acres at Mawbanna. He carried out some renovations to the family house. He was able to do light work on the property. His wife would do the heavy work.
· He received a lump sum from his last employer in or about 1996. When that money ran out he went onto a disability support pension. He has been receiving that pension ever since.
· In 1998 he engaged in some casual work for two or three days per week over a short period, spreading gravel to fill potholes on gravel roads. He worked for five or six hours a day. From time to time his back would give him problems, and he would swap with the driver and drive the truck.
· After that he did some work for a couple of hours per afternoon with a man who machined posts for post and rail fencing. He helped erect some fences with that person. For the financial year ending 30 June 1998, his earnings from casual work totalled $2,900.
· He and his family moved to a bush block in the Huonville area in about July 1998. He gave no evidence of attempts to find paid employment of any kind after the move. He undertook some work on the property including renovations, lawnmowing, assisting his wife with tree planting, and cutting and splitting firewood.
· His back was improving between 1999 and 2007.
· In 2001 he began helping his cousin in a knackery. He subsequently took over the running of the knackery. He worked 15 to 18 hours per week, going to farms, shooting unwanted animals, and taking them back to the knackery, where they would be processed for sale as pet meat. He continued to receive his disability support pension while operating the knackery, with the knowledge and approval of Centrelink. He found that he could not earn an income from the knackery without it being part of an associated retail outlet.
· After running the knackery for about 12 months, and not being able to make a satisfactory income from that business, he purchased from his cousin a business called the Dog and Cat Deli. He did not retain the knackery.
· He operated the Dog and Cat Deli until the motor vehicle accident. He paid wages to a full-time employee, but made no income from that business despite working 30 hours per week.
· During the last couple of years that he was operating the Dog and Cat Deli, he and his employee completed a course to qualify them for preparing game meats for human consumption.
The matters taken into account by the learned primary judge in connection with the claim for impairment of earning capacity in relation to the respondent's post-accident history were as follows:
· After the accident the employee in the Dog and Cat Deli business continued to run it. In late 2007 or early 2008 the respondent sold the business to him in exchange for him paying all the outstanding accounts of the business, which were between $11,000 and $12,000.
· The respondent gave evidence that before the accident he was approached by a Mr Pennicott to shoot deer and kangaroo for a wage. Another man was earning about $50,000 per annum gross, over and above expenses, doing that. The respondent said he had given that offer serious thought, but did not take up the offer before the accident. He said that the accident "put an end to everything". Mr Pennicott gave evidence that he would still employ the respondent if he were fit, but only on a casual basis at first.
· After the accident the respondent discussed employment with a Mr Daniel, shooting kangaroo, and processing game meat in an abattoir for human consumption. He said he believed Mr Daniel would employ him if he were fit.
· The respondent gave evidence that because of his injuries there was not much that he was still able to do around his property. He could no longer cut firewood, maintain the house and grounds, or carry out butchering, poultry keeping, welding, mechanical repairs or maintenance in the way he used to.
· About 12 months after the accident the respondent built a 12m x 12m American barn on his property, hoping to use it for a game meat processing business. He purchased plant and equipment for such a business. He said he proposed to line out a section of the building as a cool room and obtain the necessary licences. He said he could have supplemented the income from such a business by shooting kangaroo and selling them in the skin.
· He gave evidence that he could have made an income from the retail sale of shooting equipment and accessories, but that that was something he would have done "on the side" if he had gainful employment somewhere.
The learned primary judge made findings that the respondent's earning capacity had been impaired, but not totally destroyed. At [147] he made findings that the respondent retained the capacity to shoot, and that there was a demand for kangaroo shot and left in the skin.
At [149]-[159], his Honour made a finding that, if the respondent had not been injured in the motor vehicle accident, he would not have exploited his earning capacity, and gave detailed reasons for that finding. Those paragraphs read as follows:
"[149] The work that the plaintiff described that he carried out in the course of running the knackery 15 to 18 hours per week, and that he and Mr Oates described in the course of operating the Dog and Cat Deli for up to 30 hours per week, leaves me with the clear impression that he had significant retained earning capacity after his 1992 accident, but I am not satisfied on the balance of probabilities that had it not been for the motor vehicle accident he would have ended up in full-time employment as a meat worker, or in the kind of work that Mr Oates was engaged in, whether it be for Mr Pennicott or Mr Daniel.
[150] As at the time of the motor vehicle accident in 2007 the plaintiff had not worked full-time in any remunerative employment, and indeed had hardly worked at all, outside the knackery and the Dog and Cat Deli, for 15 years. The only year in which he earned anything in those 15 years was in 1998 when he earned $2,800 [sic] for casual work filling in potholes and fencing.
[151] I have reached the view that the plaintiff was not incapable of full-time employment as a meat worker, or in work of the type engaged in by Mr Oates, even though Mr Oates said in his evidence that such work was somewhat heavier than that which the plaintiff had engaged in at the Dog and Cat Deli. I note that Dr Kapur described the plaintiff's work prior to the motor vehicle accident as appearing to involve 'really very heavy manual work', however, in my view, the real reason that the plaintiff did not return to full-time employment was a comfortable reliance on his disability support pension which allowed him to pursue the sort of rural small holding and hunting and shooting lifestyle that he so plainly enjoyed. I am of the view that such a lifestyle had become entrenched and was never likely to be changed during the plaintiff's working life.
[152] The plaintiff had, in my view, chosen voluntarily not to exercise his earning capacity in full or part-time employment, but only in much loved, hobby-like, non-remunerative activities. I find that the earning capacity he quite clearly lost as a result of the motor vehicle accident would not have been exercised by him in any way different from the previous 15 years, and would not have been productive of financial loss. It is therefore not compensable (Graham v Baker (1961) 106 CLR 340 at 347).
[153] The plaintiff gave evidence that prior to the accident he reached the view that he wanted to have a remunerative occupation as he had come to the realisation that he was not going to find it in a game meat sales business, which would only ever provide a sideline, and that he would have had to return to a full-time job to accompany and support his ideal of the home processing of game meat for human consumption.
[154] I do not accept the plaintiff's evidence that he would have taken a job as a meat worker, and I do not believe that the plaintiff would have taken up employment with Mr Pennicott or with Mr Daniel. Nor do I believe that the plaintiff would have worked in regular contract work shooting game or butchering game for other people or companies such as Lenah Game Meats.
[155] I do not accept the submission of counsel for the plaintiff, Mr Hobbs, that, as is asserted in the particulars of claim, had it not been for the accident the plaintiff would more likely than not have returned to work as a meat industry employee by 1 July 2008.
[156] It was clear that the plaintiff had come to the realisation that he could not earn an income from the Dog and Cat Deli and had, prior to the motor vehicle accident, already commenced to try and sell the business as a going concern. In my view, however, the plaintiff would not have accepted the inevitable, and that was that he needed full-time paid employment, and could not make a living on a lifestyle oriented business alone. He said that he did but I do not find that evidence truthful.
[157] I have set out earlier at [81]-[82] of these reasons the evidence of the plaintiff as to his expressions of intent as to returning to employment. But I have also said that I did not accept his evidence in this regard. As noted, his evidence as to his intentions as to future employment was, in my view, very weak and his demeanour told against him. The plaintiff's evidence-in-chief on this topic lacked the verisimilitude that to my mind accompanied the balance of his evidence given over three days in the witness box. And his answers to questions asked of him by Mr Hobbs were not delivered with the same sincerity that I saw in him over almost the entirety of the rest of his evidence. I set out but one example from the transcript reflective of my impression:
'Leaving aside that avenue of potential remunerative self-employment have you considered returning to shooting for other persons?............Yeah, I would have done, probably one of the biggest things is getting on the property, like there's good money in shooting kangaroo like I can sell kangaroo now, if I could shoot them, I can sell them now for seven dollars a kangaroo in the skin, like all you've got to do is shoot them and go and drop them off in the skin, that's seven dollars a kangaroo. Like, you could make employment out of it, yeah, you could, like especially being able to reload bullets, like I do, like I reload everything (indistinct words) with all the guns, I'm sitting down there, you can reload, which I done all the time I dealt with, um, but I think I would have rather the shooting side of it as a second sort of thing. I'm pretty sure I would have rather go back, this was someone paying me, just paying me a full wage, like a butcher's shop or some employment where I was paid a wage, so the money was coming in every week because it was just, yeah, just not earning no money…'. (Emphasis added.)
[158] As already noted, his answers in cross-examination were also unconvincing and often did not barely rise above an assertion of a capacity or a vague desire to be so employed, as opposed to a formed intention to change his lifestyle of the past 15 years and seek paid employment. The following passage from the transcript is illustrative:
'But it hadn't been making any money for six years, had it, and you stayed in it?.......No, but I was, I'm pretty pig-headed in - when I was pretty pig-headed and stuff like that and Amanda will tell you that. She tried, on several occasions, to get me to sell it or if we couldn't sell it, get out of it and get another job, paid job but Dale Booth fell through on a sale. I had the accident and now I'm sitting here.
You were never going to become a butcher, were you?……I can butcher you anything you want. I could've have butchered you anything you wanted. I can still break you down anything on a bench, now, on a good day.
Let's be more specific, you were never going to be employed as a butcher, were you?……Could've been when I'm one hundred per cent.
You had no intention at all of being employed as a butcher at the time you were injured, did you?……Yes, I did.'
[159] Now I do not wish to be taken as having decided this question of the plaintiff's credit on those passages of transcript or on any others taken in isolation. I have come to the conclusion I have, after anxious consideration and based upon my indelible impression that any time the plaintiff was asked about this issue his demeanour changed quite perceptibly. I make no finding or suggestion that the plaintiff gave perjured evidence about this. At one level he was guilty of no more perhaps than articulating wishful thinking or mourning the loss of what he had been capable of doing, as opposed to what he would have done. I can appreciate that it must be difficult to have to accept losing a capacity to earn and not be compensated for it. I am in no doubt however that the lack of verisimilitude in his evidence and the lack of sincerity and openness in his demeanour were because he recognised that the reality was that there was no reasonable prospect of him ever changing his lifestyle."
His Honour was quite correct in law in holding that a partial loss of the respondent's earning capacity was not compensable if that earning capacity would not have been exercised and the impairment of his earning capacity therefore did not result in financial loss. In Graham v Baker (1961) 106 CLR 340 at 347, Dixon CJ, Kitto and Taylor JJ said:
"… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss."
In Redding v Lee (1983) 151 CLR 117 at 131, Gibbs CJ held that that proposition was correct.
In CSR Ltd v Eddy [2005] HCA 64, 226 CLR 1 at [30] Gleeson CJ, Gummow and Heydon JJ said:
"The second type of loss is loss of earning capacity both before the trial and after it. Although the damages recoverable in relation to reduced future income are damages for loss of earning capacity, not damages for loss of earnings simpliciter, those damages are awardable only to the extent that the loss has been or may be productive of financial loss. Hence 'the valuation of the loss of earning capacity involves the consideration of what moneys could have been produced by the exercise of the [plaintiff's] former earning capacity'."
The quote in the last sentence was from Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 658.
Having made a finding that, regardless of the motor vehicle accident, the respondent would never have earned any income again, and having given detailed reasons for that finding, the learned primary judge went on at [160] and [161] to make comments that appear to be unnecessary and inappropriate after such a finding. His Honour said this:
"[160] I accept the submission of Mr Read that this is not a case where a regular weekly income can be used for the past or extrapolated into the future. The evidence does fall well short of establishing that as possible. And I accept Mr Read's allied submission that it is likely that the plaintiff would have continued to receive his disability support benefit and would have continued shooting kangaroo and selling the meat in one form of self-employment or another. I accept Mr Read's submission that as a result the plaintiff's work hours, and thus his earnings, would be limited, and that the evidence makes it very difficult to conclude that at any stage he would have made this work profitable.
[161] The submission made on behalf of the defendant in closing was that any loss of earning capacity is to be judged against the mere chance that the uninjured capacity would have been used for a profit. At best, Mr Read submitted, a global award of damages for both the past and future is appropriate."
Then, at [162], his Honour proceeded to assess damages for loss of past and future earning capacity when the recovery of any damages under that head was absolutely inconsistent with his earlier finding. That paragraph reads as follows:
"[162] Adopting, as in my view I must in this case, an intuitive and not a mathematical approach to the assessment of the award of damages for loss of both past and future loss of earning capacity, I allow a sum of $140,000."
At [163], his Honour went on to reject a claim for damages in respect of lost employer superannuation payments, saying this:
"[163] As any income would, in my view, have been derived from self-employment or contract work and not employment, I make no allowance for lost employer superannuation payments."
I make the following observations in relation to the award of $140,000 for loss of earning capacity:
· The award of $140,000 is absolutely irreconcilable with the findings that the respondent would not have exercised his earning capacity, and that his loss of earning capacity was therefore not productive of financial loss, and not compensable. Sometimes findings that at first appear inconsistent are able to be reconciled. For example, in Insurance Commission of Western Australia v Weatherall [2007] WASCA 264, two judges took the view that some apparently inconsistent findings could be reconciled by interpreting a finding as to a return to work as a finding in respect of return to full-time work: McLure JA at [18]; Pullin JA at [45]. However there was no ambiguity in any of the relevant findings in this case, and therefore there is no basis of reconciling the findings at [149]-[159] with the award of $140,000.
· The learned primary judge made no findings to the effect that, but for the injuries suffered in the motor vehicle accident, the respondent would have exercised his earning capacity. That is to say, there are no findings inconsistent with the findings at [149]-[159]. The award of $140,000 was not based on any findings. It was made as if there had been a finding that the respondent would have exercised his earning capacity, but there was no such finding.
· The findings that the respondent, if not injured in the motor vehicle accident, would never have exercised, or successfully exercised, his earning capacity, and that his loss of earning capacity was therefore not productive of financial loss, were dependent to a significant degree upon the learned primary judge's observations of the respondent and of the way he gave his evidence. That is particularly clear from [157], [158] and [159].
This is an appeal "by way of rehearing": Supreme Court Civil Procedure Act 1932, s 46. Such an appeal does not involve a completely fresh hearing by the appellate court of all the evidence, but the appellate court proceeds on the basis of the record and any fresh evidence that it admits: Fox v Percy [2003] HCA 22, 214 CLR 188 at [22]. There was no fresh evidence in this appeal.
The High Court has discussed the principles applicable to an appeal by way of rehearing in a number of cases. Subject to exceptions, the underlying principle is as stated by Gibbs ACJ, Jacobs and Murphy JJ in the following passage in Warren v Coombes (1979) 142 CLR 531 at 551:
"… in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."
However, as Gleeson CJ, Gummow and Kirby JJ observed in Fox v Percy (above) at [26], there are limits under which appellate judges operate. In that case at [23] their Honours, speaking of the role of an appellate court, said this:
"… it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." [Footnotes omitted.]
In Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ made an important point in relation to credibility-based findings at 479, saying this:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." [Footnotes omitted.]
Two of the cases cited by their Honours in relation to that passage were Jones v Hyde (1983) 63 ALJR 349 and Abalos v Australian Postal Commission (1990) 171 CLR 167.
Gleeson CJ, Gummow and Kirby JJ commented on Jones v Hyde, Abalos and Devries in Fox v Percy at [26], saying:
"This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges."
In the light of those authorities, I think it is clear that, despite the respondent's evidence as to his intentions regarding participation in the workforce, the learned primary judge's finding that the respondent's loss of earning capacity was not productive of financial loss is an unimpeachable finding.
This is not a case in which this Court can properly substitute findings of its own as to whether and to what extent the respondent, but for the motor vehicle accident, would have earned any income during the rest of his life. It follows that this Court must reject the respondent's contentions that the award of $140,000 was manifestly inadequate, and that the learned primary judge erred in rejecting the claim in respect of superannuation benefits. It also follows that there can be only one outcome in relation to the inconsistency between the finding that there was no compensable loss and the award of $140,000. The result is that the respondent must recover nothing under this head.
If there had been inconsistent findings of fact, then it would have been appropriate for this Court to order a new assessment of damages, at least in relation to the impairment of the respondent's earning capacity. But there were no inconsistent findings. If there had been any ambiguity in any findings, it might have been possible for this Court to reconcile apparently inconsistent findings by adopting a particular interpretation of the words used. But there was no ambiguity. There was simply an award of $140,000 when the findings compelled the learned primary judge to award nothing under this head.
One of the respondent's contentions in the cross-appeal is that the learned primary judge made errors in assessing the extent of the respondent's retained earning capacity. Since I have concluded that no damages are recoverable in respect of the impairment of his earning capacity, any such errors, if they occurred, would be inconsequential. However I take the view that his Honour's findings as to retained earning capacity were reasonably open to him and not findings that this Court should interfere with.
As I have said, the respondent also contended that the learned primary judge erred in not awarding damages to compensate him for the possible loss of future superannuation entitlements. Any such error must also be regarded as inconsequential in light of the finding that the respondent would never have exercised his earning capacity. Further, I consider that his Honour's finding that the respondent would never have chosen to work as an employee was reasonably open, and not a finding that this Court should interfere with.
Future surgical expenses
At [169], the learned primary judge allowed the sum of $15,000 in relation to the cost of possible future surgery and the cost of the possible trial of an occipital nerve stimulator. The appellant contends that the award of $15,000 under this head was manifestly excessive. The respondent contends that it was manifestly inadequate.
In his particulars, the respondent claimed $151,820 under this head. That sum covered the estimated costs of a number of surgical procedures. In summary, it was made up as follows:
Cervical decompression and rhizolysis $22,500 Trial and permanent occipital nerve stimulation procedures (two operations) $65,000 Post-surgery expenses (two operations at $5,660 each, comprising $1,125 for post-surgery review, $2,000 for post-operative imaging, and $2,535 for physiotherapy) $11,320 Anterior cervical decompression fusion $50,000 Diagnostic nerve blocks $3,000 Total
$151,820
Evidence as to future surgery and the use of an occipital nerve stimulator was given by three of the respondent's medical experts. Two of them, Mr Erasmus and Prof Bittar, were neurosurgeons. The third, Dr Gorman, was a physician and pain management specialist. Evidence as to these matters was also given by one of the respondent's medical experts, Dr Kapur, a pain medicine physician.
The cost estimates were provided by Prof Bittar, and were not disputed. In his earlier reports, Prof Bittar opined that the respondent would benefit from a left C7/T1 and T1/2 decompression and rhizolysis and that, if his headaches persisted after such surgery, that he could be considered for a trial of occipital nerve stimulation. Those opinions were expressed in 2011 and 2012. In 2014, he opined that the chance of surgery improving the respondent's outcome would be around 75%. In March 2015 he opined that the use of diagnostic nerve blocks would be likely to assist in the decision-making process, and said that, if there was a favourable response to nerve blocks at C7/T1, he would "most likely recommend an anterior cervical decompression and fusion at that level". However he qualified that opinion by saying that another alternative would be to see if a more detailed MRI scan could be performed. At the trial, his final position was that any surgery was no more than a possibility.
Mr Erasmus explained in his evidence that the decision whether to undergo surgery was one for the patient, and that the respondent might choose not to undergo surgery because it would be unlikely that complete resolution of his symptoms would result. Under cross-examination, commenting on the surgery suggested by Prof Bittar, he said, "I would need to look carefully at it with the patient and see. The worry for me personally is it's now, what, seven years since his accident?" He suggested he would tell the respondent that surgery would not have more than a 50:50 chance of giving him some relief.
In a report dated 7 August 2014, Dr Gorman commented that the available scans and the physical examination of the respondent did not "strongly support the case for surgery". However he opined that the respondent would benefit from occipital nerve stimulation. Dr Kapur, in reports written in 2012 and 2013 and at trial, consistently opined that neither surgery nor occipital nerve stimulation was indicated.
The learned primary judge made findings about these matters at [118]-[122]. Those paragraphs read as follows:
"[118] Professor Bittar has recommended surgical procedures to assist in alleviating some of the plaintiff's symptoms, and Mr Erasmus accepts that the carrying out of those procedures is not unreasonable. It is clear however that they could be expected at best to alleviate only some of the plaintiff's pain. The plaintiff's pain is chronic and, as Dr Gorman said, by its very definition it is permanent and will persist. The utility of procedures of the kind suggested by Professor Bittar to possibly relieve some of that chronic pain, still leaving the plaintiff with other grossly disabling symptoms, is, in my view, very doubtful.
[119] In any event however, the final position taken by Professor Bittar in his evidence on the hearing of the assessment was that whilst the plaintiff's diagnosis was that of aggravation of cervical spondylitis with cervicogenic headaches, he could not be confident about exactly which nerve roots were generating the plaintiff's symptoms at the present. For that reason Professor Bittar recommended that diagnostic nerve blocks be carried out. The Professor said that he had a lot of diagnostic information, but he wanted that to be even more detailed before he recommended definite surgical treatment if, he added, 'that's what it is going to be'.
[120] Professor Bittar's final rider leads me to conclude, on the whole of the medical evidence, that because of the diffuse, multi-level nature of the plaintiff's symptoms, surgery may not ultimately be performed at all. In this situation it is reasonable only to make an allowance for possible future surgery under the head of future surgical expenses.
[121] On the plaintiff's own medical evidence I am not persuaded, on balance, that it is reasonable to allow the plaintiff the cost of an occipital nerve stimulator. In so concluding I am influenced not only by the tenor of the evidence of Professor Bittar, but also by the tentative nature of the support for such a procedure lent by Mr Erasmus.
[122] It seems to me quite clear that in this case at least, the plaintiff should participate in a pain management program in order to see what benefits can be achieved before any further consideration should be given to a nerve stimulator, even on a trial basis. I will make an allowance for the possibility that a trial of a stimulator might be recommended after the multi-disciplinary pain management program has been undertaken."
All of those findings were in accordance with the evidence. The only appropriate course for the learned primary judge was to award a sum under this head to allow for the possibility of future surgery. The very nature of such an award is that the sum awarded would probably be inadequate if the respondent underwent surgery in the future, and that it would constitute a windfall if he did not. Allowance would have to be made not only for uncertainty, but also for the interval between the judgment and the time of the future surgery. The applicable discount rate was 5%: Civil Liability Act 2002, s 28A(a).
By way of example, the amount required to compensate a plaintiff for expenditure of $10,000 in three years' time, adopting a discount rate of 5%, is $8,638: Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths, 2002. It follows that if there is only a 10% chance that that plaintiff will incur expenditure of $10,000 in three years' time, the appropriate figure would be 10% of $8,638, namely $863.80. In the light of those calculations, an award of $15,000 would seem to be appropriate if there was a small but significant chance of very substantial expenditure being reasonable in the next few years. It is not as simple as that, because some of the procedures advocated by Prof Bittar appear to be less likely to be warranted than others.
Given the state of the evidence, I do not think it can be said that the award of $15,000 under this head was either manifestly inadequate or manifestly excessive. The grounds relating to this head of damage should fail.
Past and future medical expenses
The learned primary judge awarded $35,400 under this head. It appears from his reasons at [170] that that amount was calculated as follows:
Agreed unpaid expenses $400
Pain management expenses $12,000
General practitioner expenses $20,000
Agreed ophthalmological expenses $3,000
Total $35,400
The appellant contends that the figures of $12,000 and $20,000 were manifestly excessive. The respondent contends that the figure of $12,000 was manifestly inadequate, but has not challenged the figure of $20,000.
Pain management expenses ($12,000)
At [116], the learned primary judge made a finding that the respondent "would benefit, to some degree, from a multi-disciplinary pain management program". He concluded that the respondent should recover "the reasonable costs of involvement in such a program".
In his particulars, the respondent claimed $18,193.25 as the costs of attending a pain management program. That figure was based on an assumption that he would make four trips to Melbourne to participate in a program called the "Precision Ascend Program". The figure comprised the following:
Pre-course multi specialist evaluation $1,600.00
Program fee $11,500.00
Return airfares (4 trips) $1,000.00
Accommodation (16 nights) $2,880.00
Taxi fares in Melbourne (8 journeys) $800.00
Travelling to Hobart airport and return $63.00
Evening meals in Melbourne $350.25
Total $18,193.25
The learned primary judge's award of $4,000 for travelling expenses did not include a component for travel to attend a pain management course in Melbourne.
Prof Bittar, Dr Gorman and Dr Kapur each expressed the view that it would be desirable for the respondent to attend a pain management program. Prof Bittar recommended the Precision Ascend Program, which runs for five days per week, eight hours per day, for three weeks. He estimated that it would cost $11,000 to $12,000, in addition to a multi-specialist evaluation costing approximately $1,600. That program is not available in Tasmania.
Dr Kapur gave evidence that he ran a similar program in Adelaide which lasted for a minimum of three weeks.
Dr Gorman stated in a report in September 2008 that a suitable pain management program was available in Hobart. That evidence was not contradicted. Under cross-examination, it was put to him that the cost would be around $10,000, but he responded, "Perhaps a little less, $7,000, yes, $7,000 to $10,000, but more like $7,000 I think." He said that that included the pre-assessment and the follow-up. Counsel for the appellant argued that it was unlikely that the respondent would travel to Melbourne for such a program because he has trouble with headaches, incontinence and nosebleeds.
There is no reason to doubt the correctness of Dr Gorman's evidence to the effect that a suitable program is available in Hobart at a cost in the range of $7,000 to $10,000, probably closer to $7,000. There appears to be a small chance that the Melbourne program might be considered superior to the Hobart one, and that the respondent might reasonably incur higher fees, and travelling and accommodation expenses. The particularised claims are excessive in relation to the number of air fares, the number of nights' accommodation, and the cost of Melbourne taxis, but there is a chance that the respondent might reasonably incur accommodation expenses in Hobart. He lives in Franklin. Commuting from Franklin to Hobart and return each day might be counterproductive.
Taking all those matters into account, I consider that an award of $9,000 would be appropriate in respect of pain management expenses and related expenditure. I consider that the figure of $12,000 was manifestly excessive. The appellant's ground relating to pain management expenses should succeed, and the relevant ground in the cross-appeal should fail.
General practitioner expenses ($20,000)
It appears from [170] that the learned primary judge allowed $20,000 under this head on the basis that it was reasonable for the respondent to attend his general practitioner once a month. The appellant contends that the figure of $20,000 was manifestly excessive. The respondent has not challenged that figure in the cross-appeal.
There was no oral evidence as to the frequency of the respondent's visits to general practitioners, the cost of their consultations, or the frequency with which he would need to visit a general practitioner in the future. During his evidence-in-chief, when asked about attending general practitioners, the respondent said, "… in the end I couldn't see the point in going to a doctor every time me back had a twinge …". Later he said, "I don't go to the doctor unless I've got to."
Records kept by the Motor Accidents Insurance Board ("the MAIB") as to the payment of scheduled benefits were tendered at the hearing. They showed that the Board paid for two consultations with general practitioners in 2013 and four in 2014. By 2014 the general practitioners were charging $71 per consultation. They were also charging $10.40 on occasions for writing prescriptions. The general practitioners' records were tendered. They showed that the respondent was told in February 2014 that, because his medications were restricted narcotics, it would be good for him to be seen more regularly. That would appear to explain why he doubled his rate of attendance in 2014.
The total amount paid by the MAIB for consultations and prescription writing in 2014 was $346.40. That represents an average expenditure of $6.66 per week. The respondent's solicitors used a multiplier of 934 to calculate amounts required to compensate him for future expenditure for life. That multiplier was not challenged by the appellant.
Adopting that multiplier, the amount required to compensate the respondent for expenditure of $6.66 per week for life could be calculated as follows:
$6.66 x 934 = $6,220.
There are a number of factors that need to be taken into account in assessing damages under this head. No doubt the respondent would have needed to see a general practitioner from time to time in relation to problems unrelated to his motor vehicle accident, particularly in his later years. It is significant that he already had a bad back. He is entitled to damages only in respect of expenditure incurred as a result of his motor vehicle accident. There may be times when an accident-related medical condition would deteriorate and require several consultations with a general practitioner.
Taking all of those matters into account, I think it is clear that the award of $20,000 under this head was manifestly excessive. Allowing for the possibility that some years may well be worse than 2014, I think it would be reasonable to allow $9,000 under this head.
Conclusion as to future medical expenses
For these reasons, I would reduce the amount to be awarded in respect of past and future medical expenses from $35,400 to $21,400, made up as follows:
Agreed unpaid expenses $400
Pain management expenses $9,000
General practitioner expenses $9,000
Agreed ophthalmological expenses $3,000
Total $21,400
Past and future pharmaceutical expenses
The respondent claimed $59,249.46 under this head. The learned primary judge awarded $40,000. The appellant contends that that figure was manifestly excessive. The respondent contends that it was an appropriate award.
Counsel for the appellant submitted to the learned primary judge that the pharmaceutical expenses for the six months ending on 31 January 2015 averaged $26.50 per week; that the amount required to compensate the respondent for expenditure at that rate for life was $24,750; that it was reasonable for him to be weaned off his medication; and that only $10,000 should be allowed under this head.
At [172] the learned primary judge rejected the submission that participation in a pain management program was likely to result in the respondent no longer requiring Kapinol and Tramadol. However he went on to award $40,000 under this head without explaining why he had chosen a greater figure than the figure of $24,750 that had been adopted by counsel for the appellant as a starting point. Counsel for the appellant submitted to this Court that there was no basis for a larger award under this head.
The claim for $59,249.46 was based on a calculation as to the respondent's average weekly expenditure on pharmaceuticals since the motor vehicle accident, adjusted for inflation. Before the adjustment for inflation, the average weekly expenditure was calculated to be $35.38.
The exhibits at the trial included records from a pharmacy as to individual purchases, and records from the MAIB itemising the amounts paid by way of scheduled benefits. It appears from those records that the respondent's expenditure on pharmaceuticals was greater in the years immediately following his accident than it is now. The records show that he spent $1,714.49 on pharmaceuticals during the year ended 31 January 2015. Three purchases during that period, totalling $36.20, have not been shown to have any relationship to the accident. They are items 98, 139 and 44 in the pharmacy printout. Apart from those items, the respondent spent $1,678.39 on accident-related pharmaceuticals during the year ended 31 January 2015. That represents an average expenditure of $32.28 per week. The amount required to compensate a man of the plaintiff's age for such expenditure for life is calculated as follows:
$32.28 x 935 = $30,181.80.
There is a chance that the respondent might need to spend more on medication if his condition deteriorates. There is also a chance that his condition will improve a little, and that he will need to spend less on medication. An award of $40,000 under this head represents an allowance of about 33% above $30,181.80 for possible increased expenditure. Such an adjustment is out of all proportion to the chance that the respondent's expenditure on medication will increase rather than decrease. It follows that the award of $40,000 under this head was manifestly excessive.
Doing the best I can on the basis of the available evidence, I would award $32,000 under this head.
Domestic assistance
The respondent claimed $116,155.39 to compensate him for the cost of assistance from a commercial gardening service until his 75th birthday. At [176], the learned primary judge decided to allow $20,000 under this head. The respondent contends that that award was manifestly inadequate. It has not been challenged by the appellant.
His Honour indicated at [176] that he accepted submissions by counsel for the appellant that were expressed as follows:
"In all, the claim is one for $8,000 a year to maintain a bush block.
• This claim is on its face unreasonable,
• It lacks evidence as to many of its components,
• The plaintiff [respondent] was limited in what he could do before the accident and the evidence does not establish any significant change for the tasks particularised.
• It fails to take account of work done by Amanda [the respondent's wife] both before and after the accident,
• There is no account taken of improvement following the pain management program either in the theoretical sense that it was untaken when advised or on the future attendance.
• It assumes a complete loss of capacity for these tasks on the part of Mr Eirth that the evidence does not allow,
• It fails to take account of the fact that Mr Eirth following the accident and at the present time does not work and hence has the time to pace his activities to minimise pain,
• It fails to take account of the ability of Mr Eirth to adapt the tasks in away that he can cope."
The respondent lives on a property with an area of about 7.1 hectares. He gave evidence that it was mostly bush, but he also said that about 11 acres, which is about 4.5 hectares, was cleared. His claim under this head was based on evidence from an agricultural landscaper from Ranelagh named Anthony Griggs. He estimated the time that various tasks would take, and how often each task would need to be attended to. Based on his evidence, it was calculated that the cost of doing the required work would be $8,409.54 per annum. That figure was based on Mr Griggs' usual charges of $77 per hour for lawnmowing and $55 per hour for other work. Mr Griggs provides his own machinery. The claim of $116,155.39 represented the amount required to compensate the respondent for expenditure of $8,409.54 per year until his 75th birthday, discounted by 15% to allow for the costs of machinery and fuel.
The annual figure of $8,409.54 consists of eight components. In order to address this ground of the cross-appeal, it is necessary to address each of those eight components separately. The task of doing that has been made difficult by the fact that counsel for each party relied substantially on their written submissions as to this ground at the hearing of the appeal, leaving us to follow up page references and footnotes that took us to transcript passages, photographs and other exhibits. The eight components of the annual figure are as follows:
Lawnmowing around house $2,502.49
Brush-cutting around home lawns $1,786.75
Tractor mowing bank below house $616.00
Cleaning gutters $1,986.10
Spraying weeds in drains alongside driveway $330.00
Remove and dispose of weeds alongside driveway $220.00
Mow and brush-cut triangular area below shed $308.00
Prune deciduous trees around house $660.00
Total $8,409.54
A report by Mr Griggs was tendered as part of his evidence-in-chief. It appears from this report that the first item in this calculation relates to lawns to the west and south of the house. In cross-examination he said that those lawns were the lawns depicted in photos numbered 4 and 5. The respondent said in his evidence-in-chief that before his motor vehicle accident it was his wife who mowed those lawns, and that she continued to do so after the accident. There was no evidence that the respondent has incurred or might need to incur any expenditure in relation to the mowing of those lawns as a result of his injuries.
The respondent said that there were some lawns that his wife would not mow because they were in recently cleared areas where the lawnmower threw up lots of small stones. He said that he had done some mowing since the accident, but that he could not manage it all, with the result that there were some overgrown areas. I am not able to determine whereabouts the lawns his wife would not mow figure in Mr Griggs' evidence, but I am sure that he must have included them in some part of his evidence.
The second item in the calculation relates to brush-cutting around lawns near the respondent's house. The respondent gave evidence that, before the motor vehicle accident, he would usually do about half to three quarters of that brush-cutting, and that his sons would finish it. He also estimated that he did about 60% of that work before the accident. He said that after the accident his lower back would start aching after about half an hour of that work. Much later in his evidence-in-chief, he said that that would happen after about three or four minutes. His son, Isaac, gave evidence that he and his brother now attend to those areas with a whipper-snipper, and that their father now does none of that work. At best, the respondent was entitled to damages on the basis that his sons might move away, or become unable or unwilling to undertake some or all of the brush-cutting in the future.
The next item relates to mowing below the house, using a tractor. The respondent gave evidence that he can use a tractor, but that reversing can be hard. He described a technique that he uses to turn his tractor when standing on its side step. He did not say that he could not mow lawns safely with the tractor. It is likely that continued use of the tractor would result in pain but, as the respondent does not have employment commitments, he must be able to pace himself, doing a little tractor work at a time so as to minimise discomfort.
The next item relates to the cleaning of gutters. The respondent gave evidence that he used to clean out the gutters all the time before his motor vehicle accident, but that his sons do that now instead, and that no one has cleaned out the gutters of the shed for so long that they are beginning to rust badly. His son, Isaac, gave evidence that cleaning out gutters was a job that he was doing. He was asked whether gutter guards would solve the problem, and said that they probably would.
The next item relates to the spraying of weeds in drains alongside the driveway. No evidence was given as to what the spraying of weeds involves, whether the respondent used to do it before the motor vehicle accident, whether the accident had any impact on his ability to do that work, or what has been done in relation to the spraying of weeds in the drains in question since the accident. That is to say, there was no evidence that, as a result of the motor vehicle accident, the respondent has needed to incur any expense in relation to any such work or that he might need to in the future.
The next item relates to removing and disposing of weeds alongside the driveway. The respondent gave evidence that he used to grade the driveway with a tractor and grader, and then rake "stuff" into piles, which his wife would burn. He said he used to clean out the drains so that water did not overflow onto the roadway and damage it. Counsel did not direct us to any evidence as to the consequences of the motor vehicle accident in relation to this category of work. I infer that the respondent's ability to remove weeds, manually or with the aid of a tractor, and his ability to rake weeds into piles for burning have been impaired as the result of the pain he suffers. But there was no evidence of any past, present or possible future need to incur expenditure to get that work done.
The next item relates to the mowing and brush-cutting of a triangular area below the shed. Mr Griggs said in his report that that area had obviously been cared for in the past, but had "grown up" in recent years. He said it could be mowed with a ride-on mower and brush-cut. Counsel did not direct us to any evidence from the respondent or anyone else about the area in question. In his written submissions relating to this ground, counsel for the appellant said:
"… this is an area which would be mown only for aesthetic reasons. Given the bush setting it is not reasonable to allow for it even if the evidence is sufficient to find some tort cause reason why Mr Eirth is unable to mow and will be able [sic] to mow after he has been to a pain management program. In addition the boys and Amanda [the respondent's wife] could be expected to have mown this area if it reasonably needed it. No allowance should be made."
Counsel for the respondent made no submissions in response to that submission. I am not satisfied that the evidence established any need or possible future need for the incurring of expenditure for the work in question.
The final item relates to the pruning of deciduous trees around the house. There was no evidence as to whether the respondent pruned any such trees before his motor vehicle accident, nor as to the impact of the accident on his ability to prune trees, nor as to who did what in relation to the pruning of trees after the accident. There was no evidence to establish any need or possible future need for the incurring of expenditure in relation to this item.
The award of $20,000 under this head equates to compensation for expenditure of about $1,448 per year until the respondent's 75th birthday. Having regard to the state of the evidence, I am not satisfied that that award was manifestly inadequate.
Motor vehicle maintenance and servicing
Before his motor vehicle accident the respondent undertook all the routine services and maintenance on two cars owned by himself and his wife. At trial he claimed $8,578 on the basis that he was no longer able to undertake that work, and that the services would have to be undertaken at a cost by a mechanic. The learned primary judge awarded nothing under this head. The respondent contends that he should have awarded the claimed sum of $8,578.
There was uncontested evidence that each of the two vehicles required servicing about every six months; that the average service required about 1½ hours' labour; and that the reasonable cost of such labour was $88 per hour inclusive of GST. The claimed sum of $8,578 represents the cost of such services from the time of the trial until the respondent's 75th birthday, discounted as required by the Civil Liability Act, applying a discount rate of 5%.
One of the two vehicles was referred to at the trial as the respondent's wife's car. That vehicle was a Commodore. If the respondent was rendered unable to provide gratuitous services for his wife because of his injuries, he cannot recover as damages an amount calculated by reference to the commercial value of those services: CSR Limited v Eddy (above). There was no evidence at the trial as to who owned the Commodore, who paid for it, or who was the registered owner. That is to say, there was no evidence that the respondent owned that vehicle or had any legal or equitable interest in it.
Counsel for the respondent relied on s 79 of the Family Law Act 1975 (Cth). Section 79(1)(a) permits courts with jurisdiction under that Act to make orders altering the interests of the parties to a marriage in their property. However it is well established that s 79, of itself, does not give rise to a caveatable interest in land: Ioppolo v Ioppolo (1978) 4 Fam LR 124; Hayes v O'Sullivan (2001) 24 WAR 40; Re Weeks' Caveat [1971] QWN 4. Section 79 allows certain courts to create new rights and interests. It does not confer any rights other than a right to apply to a court. It follows that there is no evidence that the respondent owned the Commodore that was described as his wife's, or any interest in it, and that therefore no damages were recoverable in relation to it.
There was no evidence that the respondent had incurred any expenditure since his accident in 2008 for work on vehicles that he would previously have done himself. His ability to do mechanical work was impaired but not destroyed. The learned primary judge made the following findings at [99] and [100]:
"99Pre-accident the plaintiff used to undertake mechanical work on his own and his wife's motor vehicles and also on small engines such as lawnmowers.
100He can no longer do that work to the same extent. He cannot get under a motor vehicle and he cannot lean over the bonnet of a car, or lean over to work at a bench, without pain (something which of course he could not do in the setting of a kitchen sink before the motor vehicle accident because of lower back pain from his 1992 work accident). He can however do jobs such as removing a wheel on a car and changing the brake pads."
The respondent gave evidence that his sons now service both vehicles. If both sons become unable or unwilling to service the respondent's vehicles, he will either have to get a friend to do that work or pay for it to be done by a mechanic. I therefore consider that some award under this head was appropriate in relation to that contingency. In assessing an appropriate amount, I think it reasonable to take into account the possibility that, as time goes by, vehicles will become so technically sophisticated that only professional mechanics will be able to service them. Also, I think one should take into account the likelihood that, if the 2007 accident had not occurred, the respondent would have given up servicing his own vehicles long before his 75th birthday. Taking all those matters into account, I think it reasonable for the respondent to recover $1,000 under this head. I would therefore allow the cross-appeal and make such an award.
An application to amend
There was evidence at the trial suggesting that the respondent had removed himself from the waiting list of the Royal Hobart Hospital's pain clinic on 7 December 2009. The learned primary judge made findings, at [166] and [167], that the reason for his failure to attend the recommended clinic was not satisfactorily explained by him, and that his attendance could have resulted in him avoiding some of his pain and suffering. When he assessed the respondent's general damages for pain and suffering and loss of amenities in the sum of $75,000, he said that he was making "a reasonable discount from an otherwise appropriate figure for general damages in order to allow for the plaintiff's [the respondent's] failure to mitigate his damage in this regard". Ground 3 of the respondent's notice of cross-appeal asserts that the learned primary judge erred in concluding that it was appropriate to discount the award of general damages on the basis of a failure to mitigate. I will address that ground shortly.
At the hearing of the appeal, an application was made to amend the notice of cross-appeal by adding a new ground 3A, in the following terms:
"AND FURTHER, and in any event, the Appellant failed to plead an asserted failure on the part of the Respondent to mitigate his loss and, accordingly, His Honour was in error in entertaining this assertion in the absence of a pleading."
The amendment application was opposed. This Court reserved its decision in relation to the amendment application as well as the appeal and the cross-appeal. The proposed ground 3A was fully argued.
Rule 251(b) of the Supreme Court Rules 2000 requires a party to an action, in any pleading subsequent to a statement of claim, to plead specifically any fact or matter that "if not pleaded specifically, may take the opposite party by surprise". Counsel for the appellant conceded, for the purposes of the appeal, that the allegation that the respondent had failed to mitigate his damage should have been pleaded. However no point was taken at the trial as to that matter not having been pleaded.
At the trial, counsel for the appellant made an opening speech before any evidence was called, providing the learned primary judge with a written outline which contained an assertion that a key issue in the case was whether the respondent had acted reasonably to mitigate his loss. The respondent was cross-examined on the third day of the trial about his alleged failure to mitigate, without any objection as to that issue not having been pleaded. His counsel chose not to re-examine him. The trial continued for more than a week thereafter without any application to recall him. The issue of failure to mitigate was addressed by counsel for the appellant in his closing submissions to the learned primary judge. In my view both parties must have regarded failure to mitigate as a live issue at the trial, and there was no procedural unfairness as to that issue.
In my view it is very significant that no point was taken at the trial as to the alleged failure to mitigate not having been pleaded. In Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490 at 517, Isaacs and Rich JJ said:
"But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest."
The respondent is seeking to do what their Honours said was impossible – "to hark back to the pleadings and treat them as governing the area of contest". Since the parties conducted the trial on the basis that there was an issue as to the asserted failure to mitigate, and no procedural unfairness resulted from that matter not having been pleaded, it would be unjust for this Court now to permit the respondent to rely on the fact that the matter was not pleaded. If the point had been taken at the trial, leave to amend the defence to plead failure to mitigate would no doubt have been sought, and I can see no reason why such leave might not have been given. In the circumstances, I would refuse the application for leave to amend.
Pain and suffering and loss of amenities
As I have said, the learned primary judge awarded $75,000 under this head on the basis that that figure was discounted because of the respondent's failure to mitigate his damage by attending the Royal Hobart Hospital's pain clinic for appropriate treatment in 2009. The respondent contends that the figure of $75,000 was manifestly inadequate but, as I understand the submissions, does so only on the basis that the learned primary judge erred in applying a discount because of a failure to mitigate. The relevant ground in the notice of cross-appeal, ground 3, reads as follows:
"His Honour was in error:
(a)in concluding that the Defendant had discharged the onus of establishing that the Plaintiff had failed to mitigate his loss in not attending the Royal Hobart Hospital Pain Clinic;
(b)in concluding that the attendance by the Plaintiff at the Royal Hobart Hospital Pain Clinic could have resulted in him avoiding some of his pain and suffering; and
(c)in concluding, therefore, that it was appropriate to discount the award for general damages;
Accordingly, the discounted sum of $75,000.00 awarded for general damages was manifestly inadequate."
The learned primary judge did not specify the amount of the discount. Counsel for the respondent submitted that there should have been no discount, and that an appropriate award under this head without a discount would have been $95,000. Counsel for the appellant submitted that the learned primary judge's conclusions as to failure to mitigate were unimpeachable, and that $75,000 was an appropriate award under this head, with or without a discount.
The evidence about the respondent not attending the Royal Hobart Hospital's pain clinic was minimal. The hospital's records were tendered as an exhibit. The final page was entitled "Pain unit progress". In my view, that page revealed the following things. The respondent had an appointment on 24 February 2009 at 8.30am with a doctor in the pain management unit, but failed to attend. A staff member rang his home. There was no answer. A letter was sent to his general practitioner about his failure to attend. Over nine months later, on 7 December 2009, a staff member made an entry reading as follows:
"This patient has removed himself/herself [sic] from our Waiting List as he/she doesn't want PMU services. New referral from GP would need to be addressed to PMU before any further appointments can be made."
It seems likely that the assertion that the patient did not want the pain management unit's services was not something that the respondent told anybody, but an inference drawn from his failure to attend in February 2009, and the fact that no new appointment was made.
The respondent was cross-examined about his failure to keep that appointment. He said he had no memory of the relevant events. I see no reason to disbelieve him.
The MAIB's records of scheduled benefit payments show that the respondent attended Dr Gajinder Oberoi on eight occasions between February 2009 and April 2010. The first of those appointments was the day after the appointment that he failed to keep at the Royal Hobart Hospital's pain clinic. Dr Oberoi is a pain management specialist. He was described by the respondent's general practitioner, Dr Riley, under cross-examination as "one of those pain specialists who's got it together and is sparing in his use of narcotics and is skilled in a great number of non-narcotic interventions, plus he's a decent psychologist too."
The first suggestion that the respondent attend a multi-disciplinary pain management program appears to have been made by Dr Gorman in a report dated 28 October 2008. As I have said, Prof Bittar and Dr Kapur subsequently agreed with that recommendation. The reasons why that recommendation had not been acted upon were not explored at the trial. Dr Riley was not asked for an explanation. The plaintiff was cross-examined only about not going to the Royal Hobart Hospital's pain management unit and not going to see Dr Hilton Francis. The learned primary judge appears to have rejected the proposition that failing to go to see Dr Francis constituted a failure to take reasonable steps to mitigate damage.
There was evidence that the respondent had a general reluctance to go to see doctors. I have already mentioned his evidence that, "I don't go to the doctor unless I've got to." In a report dated 15 March 2013, Dr Kapur said he had some concerns over the respondent's "willingness to engage with the process of a formal multidisciplinary assessment team".
A defendant bears the onus of establishing a failure to take reasonable steps to mitigate damage: Watts v Rake (above) at 159 per Dixon CJ. The relevant evidence, which I have fully summarised above, is undisputed. This Court is therefore in as good a position as the learned primary judge to make a finding as to whether that onus was discharged. In my view it was not. There was no evidence as to whether a multi-disciplinary pain management program was available through the Royal Hobart Hospital. There was no evidence as to whether consultations with Dr Oberoi were an inadequate substitute for whatever the hospital's pain clinic had to offer. There was no evidence as to why the respondent did not pursue the idea of attending the hospital's pain clinic, nor as to what any general practitioner thought of that. In my view the submission as to failure to mitigate should have been rejected, and the learned primary judge erred in accepting it.
Since the assessment of general damages for pain and suffering and loss of amenities was affected by that error, the appropriate course is for this Court to substitute its own assessment under that head. It is not appropriate to consider whether the figure of $75,000 was manifestly inadequate.
In addressing various issues above, I have mentioned many aspects of the respondent's injuries, their sequelae, his pain and suffering, and the loss of amenities of life suffered by him. It is clear that, although he was incapacitated to a degree by his 1992 back injury, he is much more incapacitated as a result of the 2007 motor vehicle accident, and has been troubled by chronic pain on a daily basis as a result. His symptoms have interfered with all types of physical activity. In addition to the activities I have mentioned, his injuries have interfered with his sexual activities, the wearing of contact lenses, his activities as a boxing coach, recreational shooting, trout fishing, sausage making, and running sheep on his property.
In view of all the matters I have referred to, I would assess general damages for pain and suffering and loss of amenities in the sum of $90,000.
Conclusion
For the reasons set out above, I would refuse the application for leave to amend the notice of cross-appeal, allow both the appeal and the cross-appeal, and vary the judgment by reducing the judgment sum from $361,913 to $215,913. That figure is made up as follows:
Possibility of future surgery $15,000 Past and future medical expenses $21,400 Past and future pharmaceutical expenses $32,000 Heating expenses $32,513 Travelling expenses $4,000 Domestic assistance $20,000 Motor vehicle expenses $1,000 General damages $90,000 Total $215,913
File No FCA 276/2015
GEOFFREY ARTHUR SPAULDING v TROY LESLIE EIRTH
REASONS FOR JUDGMENT FULL COURT
WOOD J
7 September 2016
I have had the opportunity to read the draft judgment of Blow CJ. I agree with those reasons in relation to all but one of the grounds of the appeal. I also agree with his Honour's reasons in relation to the grounds of the cross-appeal and the application to amend the notice of cross-appeal. There is nothing I would wish to add to those reasons. However, I respectfully do not agree with his Honour's resolution of the ground of appeal relating to the award for loss of earning capacity and ultimately, the outcome of the appeal. As I conclude that this component of the award for $140,000 should stand, I need to give consideration to three grounds of the cross-appeal which attack the amount with a view to establishing it is inadequate.
The ground of appeal about which I disagree is in terms that:
"The learned trial judge erred in law at paragraph 162: when having found at paragraph 152 of his reasons that the earning capacity lost by the Plaintiff would not have been productive of financial loss and was not therefore compensable, he awarded the Plaintiff $140,000.00 for loss of past and future earning capacity."
As background to my consideration of this ground I refer to the reasons of Blow CJ which usefully summarise matters taken into account by the learned primary judge. At [11] matters in relation to the respondent's pre-accident work history are set out. At [12] the respondent's post-accident history is set out. I adopt these summaries. Having taken into account such matters, the primary judge then made findings and observations regarding the respondent's earning capacity and how the respondent would have exercised that had he not been injured in the motor vehicle accident in 2007. These findings and observations are set out below.
The findings at [152], notably that the respondent's lost earning capacity would not have been productive of financial loss, and the award of $140,000 at [162] are undoubtedly inconsistent at face value. The question is whether the apparent inconsistency can be reconciled. If the findings are irreconcilable they need to be set aside and the Court will determine the facts, if it can, or if it cannot, the Court will order a new trial on the issue. In determining the facts the Court will give deference to the advantage of the trial judge in assessing demeanour of the witnesses.
In considering whether the findings can be reconciled it is appropriate to have regard to the reasons as a whole and also the live issues at trial: Insurance Commission of Western Australia v Weatherall [2007] WASCA 264, McLure JA at [12] and Pullin JA at [45].
I set out the relevant passages of the primary judge's decision, with the inconsistent propositions highlighted.
"Loss of earning capacity
147 I do not accept that as a result of the motor vehicle accident the plaintiff's earning capacity has been totally destroyed. I accept the submission of Mr Read, that the plaintiff still retains the capacity to shoot. I have set out the plaintiff's evidence about that at [95] above. The evidence is that Lenah Game Meats pays $8.50 plus GST per kangaroo shot and left in the skin, and that there is a demand by them for this product.
148 The injury the plaintiff had suffered to his back as a result of his work accident doubtless caused him ongoing symptoms, but as noted by Dr Lemon in his notes of 16 July 2007, the plaintiff's symptoms from the 15-year old injury to his L3/L4 vertebrae were 'chronic but manageable'. Indeed that very visit to Dr Lemon was the result of aggravating his lumbar spine while engaging in what I regard on the evidence as a reasonably strenuous activity, namely pushing down while pulling up in the course of skinning a kangaroo.
149 The work that the plaintiff described that he carried out in the course of running the knackery 15 to 18 hours per week, and that he and Mr Oates described in the course of operating the Dog and Cat Deli for up to 30 hours per week, leaves me with the clear impression that he had significant retained earning capacity after his 1992 accident, but I am not satisfied on the balance of probabilities that had it not been for the motor vehicle accident he would have ended up in full-time employment as a meat worker, or in the kind of work that Mr Oates was engaged in, whether it be for Mr Pennicott or Mr Daniel.
150 As at the time of the motor vehicle accident in 2007 the plaintiff had not worked full-time in any remunerative employment, and indeed had hardly worked at all, outside the knackery and the Dog and Cat Deli, for 15 years. The only year in which he earned anything in those 15 years was in 1998 when he earned $2,800 for casual work filling in potholes and fencing.
151 I have reached the view that the plaintiff was not incapable of full-time employment as a meat worker, or in work of the type engaged in by Mr Oates, even though Mr Oates said in his evidence that such work was somewhat heavier than that which the plaintiff had engaged in at the Dog and Cat Deli. I note that Dr Kapur described the plaintiff's work prior to the motor vehicle accident as appearing to involve 'really very heavy manual work', however, in my view, the real reason that the plaintiff did not return to full-time employment was a comfortable reliance on his disability support pension which allowed him to pursue the sort of rural small holding and hunting and shooting lifestyle that he so plainly enjoyed. I am of the view that such a lifestyle had become entrenched and was never likely to be changed during the plaintiff's working life.
152 The plaintiff had, in my view, chosen voluntarily not to exercise his earning capacity in full or part-time employment, but only in much loved, hobby-like, non-remunerative activities. I find that the earning capacity he quite clearly lost as a result of the motor vehicle accident would not have been exercised by him in any way different from the previous 15 years, and would not have been productive of financial loss. It is therefore not compensable (Graham v Baker (1961) 106 CLR 340 at 347).
153 The plaintiff gave evidence that prior to the accident he reached the view that he wanted to have a remunerative occupation as he had come to the realisation that he was not going to find it in a game meat sales business, which would only ever provide a sideline, and that he would have had to return to a full-time job to accompany and support his ideal of the home processing of game meat for human consumption.
154 I do not accept the plaintiff's evidence that he would have taken a job as a meat worker, and I do not believe that the plaintiff would have taken up employment with Mr Pennicott or with Mr Daniel. Nor do I believe that the plaintiff would have worked in regular contract work shooting game or butchering game for other people or companies such as Lenah Game Meats.
155 I do not accept the submission of counsel for the plaintiff, Mr Hobbs, that, as is asserted in the particulars of claim, had it not been for the accident the plaintiff would more likely than not have returned to work as a meat industry employee by 1 July 2008.
156 It was clear that the plaintiff had come to the realisation that he could not earn an income from the Dog and Cat Deli and had, prior to the motor vehicle accident, already commenced to try and sell the business as a going concern. In my view, however, the plaintiff would not have accepted the inevitable, and that was that he needed full-time paid employment, and could not make a living on a lifestyle oriented business alone. He said that he did but I do not find that evidence truthful.
157 I have set out earlier at [81]-[82] of these reasons the evidence of the plaintiff as to his expressions of intent as to returning to employment. But I have also said that I did not accept his evidence in this regard. As noted, his evidence as to his intentions as to future employment was, in my view, very weak and his demeanour told against him. The plaintiff's evidence-in-chief on this topic lacked the verisimilitude that to my mind accompanied the balance of his evidence given over three days in the witness box. And his answers to questions asked of him by Mr Hobbs were not delivered with the same sincerity that I saw in him over almost the entirety of the rest of his evidence. I set out but one example from the transcript reflective of my impression:
'Leaving aside that avenue of potential remunerative self-employment have you considered returning to shooting for other persons?............Yeah, I would have done, probably one of the biggest things is getting' on the property, like there's good money in shooting kangaroo like I can sell kangaroo now, if I could shoot them, I can sell them now for seven dollars a kangaroo in the skin, like all you've got to do is shoot them and go and drop them off in the skin, that's seven dollars a kangaroo. Like, you could make employment out of it, yeah, you could, like especially being able to reload bullets, like I do, like I reload everything (indistinct words) with all the guns, I'm sitting down there, you can reload, which I done all the time I dealt with, um, but I think I would have rather the shooting side of it as a second sort of thing. I'm pretty sure I would have rather go back, this was someone paying me, just paying me a full wage, like a butcher's shop or some employment where I was paid a wage, so the money was coming in every week because it was just, yeah, just not earning no money…'. (Emphasis added.)
158 As already noted, his answers in cross-examination were also unconvincing and often did not barely rise above an assertion of a capacity or a vague desire to be so employed, as opposed to a formed intention to change his lifestyle of the past 15 years and seek paid employment. The following passage from the transcript is illustrative:
'But it hadn't been making any money for six years, had it, and you stayed in it?.......No, but I was, I'm pretty pig-headed in - when I was pretty pig-headed and stuff like that and Amanda will tell you that. She tried, on several occasions, to get me to sell it or if we couldn't sell it, get out of it and get another job, paid job but Dale Booth fell through on a sale. I had the accident and now I'm sitting here.
You were never going to become a butcher, were you?……I can butcher you anything you want. I could've have butchered you anything you wanted. I can still break you down anything on a bench, now, on a good day.
Let's be more specific, you were never going to be employed as a butcher, were you?……Could've been when I'm one hundred per cent.
You had no intention at all of being employed as a butcher at the time you were injured, did you?……Yes, I did.'
159 Now I do not wish to be taken as having decided this question of the plaintiff's credit on those passages of transcript or on any others taken in isolation. I have come to the conclusion I have, after anxious consideration and based upon my indelible impression that any time the plaintiff was asked about this issue his demeanour changed quite perceptibly. I make no finding or suggestion that the plaintiff gave perjured evidence about this. At one level he was guilty of no more perhaps than articulating wishful thinking or mourning the loss of what he had been capable of doing, as opposed to what he would have done. I can appreciate that it must be difficult to have to accept losing a capacity to earn and not be compensated for it. I am in no doubt however that the lack of verisimilitude in his evidence and the lack of sincerity and openness in his demeanour were because he recognised that the reality was that there was no reasonable prospect of him ever changing his lifestyle.
160 I accept the submission of Mr Read that this is not a case where a regular weekly income can be used for the past or extrapolated into the future. The evidence does fall well short of establishing that as possible. And I accept Mr Read's allied submission that it is likely that the plaintiff would have continued to receive his disability support benefit and would have continued shooting kangaroo and selling the meat in one form of self-employment or another. I accept Mr Read's submission that as a result the plaintiff's work hours, and thus his earnings, would be limited, and that the evidence makes it very difficult to conclude that at any stage he would have made this work profitable.
161 The submission made on behalf of the defendant in closing was that any loss of earning capacity is to be judged against the mere chance that the uninjured capacity would have been used for a profit. At best, Mr Read submitted, a global award of damages for both the past and future is appropriate.
162 Adopting, as in my view I must in this case, an intuitive and not a mathematical approach to the assessment of the award of damages for loss of both past and future loss of earning capacity, I allow a sum of $140,000.
163 As any income would, in my view, have been derived from self-employment or contract work and not employment, I make no allowance for lost employer superannuation payments."
I make the following observations bearing on the question of whether the findings and the award of $140,000 can be reconciled. The context of [152] was the issue of whether, if it had not been for the motor vehicle accident, the respondent would have ended up employed as a meat worker or working in the kind of work that Mr Oates was engaged in, whether for Mr Pennicott or Mr Daniel. The evidence was that this employment involved shooting deer and kangaroo and processing game meat for consumption. Mr Oates earned about $50,000 per annum gross plus expenses. There was evidence of opportunities for employment with Mr Pennicott and Mr Daniel. This aspect of the reasons was dealing with an important part of the respondent's case on loss of earning capacity, that he would have been employed in full-time work earning a regular weekly income. The submission was that had the respondent not sustained his injuries in the motor vehicle accident his intention was to resume gainful employment and he would have had these opportunities. The respondent's evidence was he intended to pursue these opportunities for employment. A mathematical approach to assessment of past and future loss of earning capacity was urged on behalf of the respondent. The particulars of claim set out that had it not been for the injuries he sustained in the accident he would have worked either as a butcher, or in a similar and similarly remunerative capacity, until retiring on or before he turned 67. Calculations set out in the particulars were based on a regular weekly income with reference to the State and Federal Meat Industry Awards.
The respondent's evidence as to his intentions to pursue employment was rejected by the primary judge. The critical finding was set out at [151] that, contrary to the respondent's evidence, the reason he did not return to full-time employment before the accident was "a comfortable reliance on his disability support pension which allowed him to pursue the sort of rural small holding and hunting and shooting lifestyle that he so plainly enjoyed […] such a lifestyle had become entrenched and was never likely to be changed during the plaintiff's working life".
This led to the findings at [152]. The paragraphs that follow at [153]–[159] expose his Honour's reasoning with regard to the respondent's evidence that he would have taken up a job as a meat worker or taken up employment with Mr Pennicott or Mr Daniel. The learned primary judge gives detailed reasons for rejecting that evidence as to the respondent's intent in that regard. In doing so, the primary judge drew on the respondent's demeanour and the advantage he had as the trial judge. He reached the view that "the lack of verisimilitude in his evidence and the lack of sincerity and openness in his demeanour were because he recognised that the reality was that there was no reasonable prospect of him ever changing his lifestyle." It is noted that the reasons at [154] touched briefly on the prospect of the respondent pursuing "regular" contract work shooting or butchering game. The learned primary judge stated that he did not believe that the respondent would have worked in regular contract work of this kind. At this stage of his reasons, his Honour did not give consideration to intermittent contract work.
The analysis exposes the conclusion reached in the earlier part of the reasons at [151] that a comfortable reliance on his disability support pension and pursuing a rural small holding and hunting and shooting lifestyle had "become entrenched and was never likely to be changed during the plaintiff's working life". There is consistency between that proposition and the conclusion drawing on demeanour that "the reality was that there was no reasonable prospect of him ever changing his lifestyle". The context of [152] is highly relevant in construing the extent of the finding which appears in that paragraph. The context focuses on likelihood of past and future employment, in accord with the evidence of the respondent, as a meat worker or employed by individuals such as Mr Pennicott and Mr Daniel who have businesses involved in hunting and processing game, and the earning capacity he lost in that regard.The finding may be read as confined to that earning capacity and thus, it was that earning capacity which was not compensable.
By contrast, [160]–[163] are concerned with self-employment and the capacity the respondent lost in that regard. The global award of $140,000 was to compensate the respondent for the mere chance of him deriving profit from self-employment in one form or another of shooting kangaroo and selling the meat. The primary judge reached a conclusion at [160] that if not for the motor vehicle accident that self-employment was likely to have continued, but that his work hours and his earnings would have been limited. Evidently, his Honour rejected a claim that the respondent would have derived a regular or steady income from self-employment. His Honour noted that the evidence made it very difficult to conclude that at any stage the respondent would have made this work profitable. That should be read as any particular stage, rather than as excluding any stage at any time. His Honour makes plain that the respondent is to be compensated for just the chance that the uninjured capacity would have been used for profit if not for the accident.
Paragraphs [160]–[162] make reference to the appellant's submissions and it is evident that the primary judge's approach is in accord with those submissions. His Honour accepted the approach canvassed by the appellant of the existence of a chance of the respondent making a profit, and also in taking an intuitive approach. It is useful to have regard to these submissions. The appellant's written submissions encapsulate the appellant's position in this respect:
"The claim that he would have been employed as a butcher or in an abattoir is a construct not supported by the evidence. By reference to being a butcher the plaintiff meant working as a meat worker and was unable to be more specific. […] To move from a self employed status to an employed one with his level of back pain and love of the freedom his work gave him was wholly unlikely.
It is likely that he would have continued to receive the DSB and continue shooting and selling the meat in one form of business or another. As a result his earnings would be limited as would his work hours. The evidence makes it very difficult to conclude that at any stage he would have made this work profitable."
Later, the written submissions provided as follows:
"We submit that it is speculative to suggest that Mr Eirth would have been employed at any time between the accident and the present. There is a possibility that he might have earned some money shooting and selling roo either from his own facility at home or on a contract basis for one of the witnesses who attested to a willingness to 'give him a go' or put him on as a casual.
In respect of the future we submit the same speculation is required.
[…]
Our submission is that any loss of capacity is to be judged against the mere chance that the uninjured capacity would have been used for a profit. At best for the plaintiff a global award of $80,000 for the past and future is appropriate. As this income would have been the result of self employment or contract work and not employment there is no place to allow for lost employer superannuation payments. If superannuation is allowed we submit it cannot be conclusively based on the 'relevant percentage' as s 25 of the Civil Liability Act 2002 provides for a maximum only. In the absence of the usual actuarial evidence led by the plaintiff the court is left to do its best."
The award for loss of earning capacity at [162] is supported by findings. The primary judge found that the status quo would have remained and that the respondent would have continued to receive his disability support benefit and would have continued shooting kangaroo and selling the meat in a form of self-employment. His Honour plainly accepted that if the respondent had not been injured there was a chance that self-employment would have yielded profit. This latter finding is not inconsistent with the rejection of the respondent's evidence which his Honour had spent time considering in the earlier paragraphs. The chance of earning a profit from his preferred lifestyle had not arisen or been dealt with in the paragraphs preceding [160].
His Honour's reasons for allowing the global award of $140,000 for loss of past and future earning capacity were very brief. However, that does not necessarily undermine the award or suggest that it was ill-considered. There are a number of matters that I would observe. Firstly, the reasons were not made public; his Honour was "speaking" to parties who were informed of the issues and mindful of the submissions made at trial. It was well known to them that rejection of the respondent's evidence as to his intentions to pursue employment did not dispose of the issue of an award for loss of chance with respect to self-employment. Secondly, while there was little said to underpin the global amount of $140,000, it was an intuitive or "broad-brush" assessment, resting on findings already articulated and not capable of calculation or precision. It may be that there was little more that could be said to support it. Indeed, the figure of $80,000 was advanced by the appellant at trial without exposition as to how that figure was reached. Whether the figure should be $80,000 or higher or lower, assuming findings to support such a chance, was a matter on which minds may differ. As pointed out by the respondent the award of $140,000 represented 15.7% of the total amount claimed by the respondent of $890,610. It is defensible as a global figure encompassing a period, past and future, of 31 years, assuming retirement at age 67. The amount is consistent with its purpose of compensating for a chance of earning money in self-employment which was lost as a consequence of the motor vehicle accident. Other than the ground of appeal regarding inconsistency, there is no other complaint by the appellant regarding the award of $140,000 for loss of earning capacity.
In my view, the award of $140,000 can be reconciled with the earlier findings. In the context of the reasons as a whole, the findings and conclusion at [152] should be read as confined to lost earning capacity with respect to full or part-time employment as a meat worker, or employed by someone such as Mr Pennicott or Mr Daniel in game hunting and processing. These findings did not deal with the chance that the respondent would have made a profit if he had continued to work as he had done before his accident in some form of self-employment. I would dismiss ground one of the appeal.
It is necessary for me to consider three grounds of the cross-appeal relating to the award for loss of earning capacity asserting that the sum allowed was inadequate. One of the grounds is that the finding that the respondent would only have participated in remunerative work to a limited extent had the accident not occurred was against the weight of the evidence. It was submitted on appeal that the respondent's conduct after 2001 demonstrated a demand he imposed upon himself to resume gainful employment. Reference was made to his conduct in taking on the Tea Tree Knackery and the labour intensive duties that that involved and, at the same time, shooting kangaroo approximately one night per week. Further, reference was made to the respondent's conduct in taking on the Dog and Cat Deli and his outlay to purchase the business and the labour intensive demands that that occupation involved. The submissions also emphasised opportunities to obtain work since the motor vehicle accident that he was unable to take up because of his injuries. It was submitted that the demand he imposed upon himself and his intention to find gainful employment, the steps he had taken both prior to and subsequent to the motor vehicle accident, together with his experience and skills would inevitably have led to gainful employment, whether in an employed or self-employed capacity or a combination of both. It was submitted that, in accordance with the statement of claim, the respondent had a potential earning capacity of in excess of $50,000 per annum. A mathematical calculation could be undertaken and as an example, if the respondent had pursued commercial shooting and nothing else, allowing for three nights per week harvesting 40 kangaroo per night, this would have generated a gross income of $1,020 per week. Calculations were presented for past loss of earning capacity of $278,070 and future loss of earning capacity of $612,540 and a total of $890,610. It was pointed out that the intuitive assessment undertaken by the primary judge of $140,000 was only 15.7% of the total sum.
However, it was conceded that a precise mathematical approach to assessing loss of earning capacity was not appropriate, and an intuitive exercise of judgment in assessing the component as undertaken by the primary judge was not contested. It was submitted that, in arriving at an intuitive assessment, the issue of contingencies remained pertinent. It was submitted that the award failed to reflect the evidence and was manifestly inadequate. However, an essential premise of this argument, regarding a self-imposed demand or drive which would have led to gainful employment or self-employment producing a regular income, was not accepted by the primary judge. While it was found that the respondent would continue, as he had done, shooting kangaroo and selling the meat, his Honour also found that his hours and earnings would have been limited and that it was difficult to conclude that at any stage he would have made this work profitable. The findings were open to the primary judge and have not been shown to be unreasonable. The allowance for loss of earning capacity as a chance of profitable self-employment could not be said to be inadequate and, if anything, was on the generous side.This ground is not made out.
Another ground of the cross-appeal relating to the amount allowed for loss of earning capacity was that the primary judge erred in concluding at [147] that the respondent had a retained capacity to shoot and to thereby participate in remunerative work, notwithstanding the injuries sustained in the motor vehicle accident. The identified error was said to be that the conclusion was against the weight of the evidence. Further findings of the primary judge on this matter appear at [94]–[96]:
"94 After his lower back injury in 1992, and up until the motor vehicle accident in October 2007, the plaintiff said that he could still put a rifle on his shoulder and walk for hours stalking deer and could sit and wait for deer to appear for five or six hours.
95 He can no longer do that although he can still shoot a deer with a rifle and he can still sit in a motor vehicle to shoot, as I understand it, kangaroo by spotlight. He can cope with 'no drama at all' if the driving is along a track or 'decent sort of road' on a farm or on flat paddocks, but he is unable to drive over rough or uneven ground.
96 The plaintiff's sons still shoot regularly and he accompanies them but he mainly just drives the vehicle. Importantly however, he added that this is not because he could not pick up a small calibre rifle and shoot, but rather because he has shot 'thousands and thousands and thousands' of kangaroo and he now gets more enjoyment from watching his sons shoot. The plaintiff is no longer able to fire a shotgun because of the pain from the recoil of the gun."
It is noteworthy that while the respondent can sit in a motor vehicle to shoot kangaroo by spotlight using a rifle, he is unable to drive over rough or uneven ground. It was submitted for the respondent that the evidence does not support a residual earning capacity of any realistic significance utilising, for example his skills in shooting. It was submitted that travel and generally sustained activity, even sedentary in nature, is a problem, as indicated by a consideration of the entirety of the evidence given by the respondent as to his ongoing symptoms and resultant impairment.
However, this ground is misconceived as the primary judge did not suggest that the retained earning capacity was at a level which was significant. All his Honour said was that he did not accept that the respondent's earning capacity had been "totally destroyed". If he had regarded the respondent's retained earning capacity as significant then the award for a chance of profitable self-employment from shooting would not have been as high as it was.
The final ground of the cross-appeal relating to the adequacy of the award of $140,000 was that there was error in failing to award damages for loss of superannuation entitlements. It was submitted that it was not appropriate to exclude with absolute certainty the potential for the respondent to have worked in an employed capacity for the ensuing 31.5 years of residual working life to age 67. I agree with Blow CJ that the primary judge's finding that the respondent would not have chosen to work as an employee, referred to at [152] of the reasons, was reasonably open and is not a finding that this Court should interfere with. This ground is not upheld.
As I have said, I agree with Blow CJ in his consideration of the other grounds of appeal and cross-appeal and the application to amend the cross-appeal. The end result is that some components of the award are increased and others decreased. Putting to one side loss of earning capacity, the result of the revised components, as determined by Blow CJ, is a total amount which is close to the final award of the learned primary judge. These errors point to an excess of $6,000 in the sum awarded of $361,913. Given my conclusion that the component for loss of earning capacity should stand, I would be disinclined to interfere. The errors identified by the learned Chief Justice that I agree with are not sufficient in combination to taint the award for damages as a whole. Drawing on the principles referred to by Pearce J, the errors do not render the award unreasonable or manifestly excessive. In light of my conclusion regarding the component of the award for loss of earning capacity, I would dismiss the appeal and cross-appeal.
File No FCA 276/2015
GEOFFREY ARTHUR SPAULDING v TROY LESLIE EIRTH
REASONS FOR JUDGMENT FULL COURT
PEARCE J
6 September 2016
I have had the advantage of reading the reasons for judgment of Blow CJ. I agree with the orders he proposes. For the reasons his Honour states, the finding of the learned primary judge that the respondent's loss of earning capacity was not productive of financial loss is unimpeachable and compelled the conclusion that the respondent should recover nothing for past and future loss of earning capacity. Subject to the following remarks I am in general agreement with his Honour's reasons and his comments and conclusions about the other heads of damage comprising the award.
I would however make another observation. But for the conclusion about the component of the award for loss of earning capacity, I do not think that intervention of this Court would have been justified. This appeal is from the order of the trial judge that there be judgment for the respondent against the appellant for the sum of $361,913 and the judgment that the respondent recover that sum and costs: Supreme Court Civil Procedure Act 1932, s 40. No appeal lies against amounts expressed in the reasons for judgment as attributable to individual heads of damage, although it is legitimate to examine those amounts in considering the total sum: Motor Accidents Insurance Board v Richards [1991] TASSC 98; 14 Tas R 221 per Underwood J (as he then was) at [17]. The principles to be applied were summarised by Porter J in Marlow v Walsh [2008] TASSC 58; 51 MVR 169 in the following terms:
"The following summary of the principles to be applied is taken from MAIB v Richards [1991] TASSC 98;(1991) 14 Tas R 221 per Underwood J at 224 – 229, 235; per Zeeman J at 244 – 245, and Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 at 188:
· Before an appellate court interferes with an award of damages it should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.
· In the absence of a wrong principle of law or misapprehension of fact, appellate intervention is warranted only if the final award is shown to be wholly erroneous in the sense of being manifestly excessive or inadequate.
· In determining whether the final award is wholly erroneous, it is permissible to examine amounts attributed to individual heads of damage, but the disproportion of those amounts must appear in the total sum awarded; that is, all other matters in the case being equal, the conclusion that the total award is disproportionate cannot be reached unless that same conclusion is reached in relation to the ingredients of the total award sought to be challenged."
Apart from the component of the final award attributable to loss of earning capacity, none of the other adjustments to the amounts allowed under the other various heads of damage had the effect of making the final award either manifestly excessive or manifestly inadequate. In his reasons Blow CJ assessed whether some of the allowances made by the primary judge were manifestly excessive and, in some cases, decided that they were. Five of the seven grounds of the respondent's cross-appeal refer to sums attributed to individual heads of damage as being manifestly inadequate. The authorities make clear that, absent error of law or misapprehension of the facts, a ground of appeal which asserts that the amount allowed under a particular head of damage is manifestly excessive or inadequate should not succeed unless the effect is to make the final award wholly erroneous. It is worth repeating the passage quoted with approval by Underwood J in MAIB v Richards at [17] from the judgment of Shepherdson J in Calder v Boyne Smelters Limited [1991] 1 Qd R 325 at 346:
"In many cases on appeal against assessment of damages for personal injury arguments are advanced against amounts assigned by a trial judge in respect of selected heads of damage. The present case is one such. There is I think a danger that in focusing on a particular item attacked as too high or too low as the case may be an appellate court can lose sight of the other heads of damage to which the amounts have been allocated and the possibility that those amounts or any of them may be either on the high side or on the low side and in a particular case offset the amount in the particular head attacked as either too high or too low. All this is to really emphasise the point constantly made in the cases that it is the total sum awarded which must in the final analysis be looked at by the appellate court. As Mason J (as he then was) said in Wilson v Peisley: (1975) 50 ALJR 207 at 214
'The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered'."
The same approach has been adopted in intermediate courts of appeal in other states. As a recent example, in Smith v Zhong [2015] WASCA 202 the Western Australian Court of Appeal referred with approval to the following observation made by Ipp J in an unreported decision of that Court in 1997, State Government Insurance Commission v Hitchcock:
"In these circumstances there is considerable room for individual choice in regard to a multitude of factors. It may well be that in regard to certain particular components of the award, the appellate tribunal might consider that the trial Judge, without acting on a wrong principle of law or misapprehending the facts, has awarded too much or too little. Where errors falling into that category lead to relatively insignificant increases or reductions in the overall sum awarded, the appeal court will not normally interfere. In regard to issues of that kind the question is whether the total sum awarded is outside the limits of a sound discretionary judgment, and not whether some portion of that total sum standing alone would call for the court's intervention."
Similarly, in Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, the Full Court of Queensland observed at 265:
"[I]f a particular component of such an award is plainly an under-estimate or over-estimate and if substituting a proper figure for that component will substantially alter the total, then the substitution should be made; but if there is nothing more than a wrong estimate of one component which has no substantial effect on the total, the award stands. The pointing out of a relatively small error in one estimated component of a judgment which is in substance a sum of estimates does not necessarily make the judgment as a whole wrong."
Such comments are particularly relevant to claims for non-pecuniary loss. In this case, some grounds of appeal are directed to future pecuniary loss. Even so, assessment of those parts of the claim under challenge depended heavily on the primary judge's assessment of the respondent's need for future services. I see little reason in principle why the same considerations should not apply. Some of the appellant's grounds and submissions were put on the basis that the evidence did not support various aspects of the award, not that the primary judge acted on a wrong principle of law. It is not necessary to determine whether the submission amounts to an asserted misapprehension of facts, or simply an argument that the trial judge should have taken a different view of the evidence within the scope of his discretion. That is because the net result of the various additions and subtractions determined by Blow CJ, leaving aside the loss of earning capacity claim, does not substantially alter the total award. I do not lose sight of the ground of the cross-appeal which correctly asserts that the primary judge was in error to conclude that the appellant discharged his onus of establishing a failure on the part of the respondent to mitigate his loss. In my view, that error did not make the judgment as a whole wrong when the countervailing considerations are taken into account.
I would have simply reduced the judgment sum by $140,000. The difference between the result of that reduction and the result of the calculations undertaken by Blow CJ is relatively small. For that reason I decided that the appropriate course is to agree with the orders his Honour suggests.
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