Tabloid Pty Ltd v Pringle
[2024] WASCA 152
•5 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TABLOID PTY LTD -v- PRINGLE [2024] WASCA 152
CORAM: VAUGHAN JA
TOTTLE J
VANDONGEN JA
HEARD: 4 APRIL 2024
DELIVERED : 5 DECEMBER 2024
FILE NO/S: CACV 26 of 2023
BETWEEN: TABLOID PTY LTD
Appellant
AND
KARIS LOUISE PRINGLE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
Citation: PRINGLE -v- TABLOID PTY LTD [2023] WADC 18
File Number : CIV 1502 of 2016
Catchwords:
Personal injury - Damages - Assessment of damage - Past loss of earning capacity - Future loss of earning capacity - Appellate restraint - Where trial judge failed to use or palpably misused advantage as trial judge by mischaracterising or misunderstanding effect of expert evidence - Court able to make substituted finding - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Substituted findings as to past and future losses made
Category: B
Representation:
Counsel:
| Appellant | : | T J Hammond SC & A Nolan |
| Respondent | : | D R Clyne |
Solicitors:
| Appellant | : | McCabes |
| Respondent | : | SJB Legal |
Case(s) referred to in decision(s):
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Bowen v Tutte (1990) Aust Torts Reports 81-043
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Browne v Browne [2019] WASCA 1
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222
Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
DL v The Queen [2018] HCA 26; (2018) 266 CLR 1
Doerr v Gardiner [2023] QCA 60
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gordon v Ross [2006] NSWCA 157
Greenslade v Hiew [2022] WASCA 47
H & Q Café Pty Ltd v Melbourne Café Pty Ltd [2023] VSCA 200; (2023) 72 VR 53
House v The King [1936] HCA 40; (1936) 55 CLR 499
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
L v P [2022] WASCA 40
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
McCartney v Orica Investments Pty Ltd [2011] NSWCA 337
Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190
Minister for Immigration, Local Governments and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Montemaggiori v Wilson [2011] WASCA 177
Paul v Rendell [1981] UKPC 19; (1981) 55 ALJR 371
Pave Wealth Services Pty Ltd v Jones [2021] WASCA 7
Pene v Murphy [2004] WASCA 103
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Player v Avery [2022] WASCA 147
Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362
Pringle v Tabloid Pty Ltd [2023] WADC 18
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) Aust Torts Reps 81-864
Smart v Power [2019] WASCA 106
Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wilson v Arwon Finance Pty Ltd [2020] WASCA 137
Wilson v Peisley (1975) 50 ALJR 207
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
JUDGMENT OF THE COURT:
Overview
This is an appeal against an assessment of damages by the District Court of Western Australia (Lonsdale DCJ). The appellant admitted liability. After a five-day trial on quantum the primary judge delivered written reasons assessing the respondent's damages in an amount of $1,126,045.39.[1] That amount included $449,312 for past loss of earning capacity, $145,386 for interest on past economic loss and $350,000 for future loss of earning capacity.
[1] Pringle vTabloid Pty Ltd [2023] WADC 18 (primary reasons).
The appellant's grounds of appeal challenge those three aspects of the primary judge's award.
The respondent concedes the ground of appeal concerning the primary judge's award of interest on past economic loss. The respondent's concession is properly made. The appeal must be allowed to that extent. Otherwise, for the reasons that follow, the appellant has also established material error in the primary judge's award in relation to past and future loss of earning capacity. The judgment in favour of the respondent against the appellant must be varied to reflect the reduced assessment of damages specified in these reasons.
Background facts
The appellant conducted a fast-food outlet in Bunbury, Western Australia. The respondent attended the appellant's establishment on 22 May 2013 with her then nine‑year-old son. The respondent, then aged 26, purchased meals for herself and her son. The purchase included servings of fried chips that had been contaminated with caustic soda. After eating the chips the respondent experienced tingling and burning sensations in her mouth. The respondent sought medical treatment and was eventually hospitalised for two days.
The respondent was found to have suffered caustic burns to her upper gastrointestinal tract. Specifically, an endoscopy revealed two minor gastric erosions. Subsequently a 14 October 2013 review endoscopy of the respondent's upper and lower gastrointestinal tract was reported as normal. Accordingly, the physical injuries suffered as a result of the contamination were not long lasting.
The primary judge found that the respondent's physical injuries from the caustic soda resolved themselves. However, the respondent continued to experience symptoms of pain and discomfort. Sometime after the incident a treating pain specialist, Dr Phillip Finch, diagnosed the respondent with a neuropathic pain disorder. A treating psychiatrist, Dr Lance Risbey, provisionally diagnosed the respondent as suffering from post-traumatic stress disorder (PTSD). The respondent continued to suffer from poor mental health and to experience intermittent pain and discomfort.
At the time of the incident the respondent had been working full‑time in an administrative role for a company called Boom Logistics. After the incident the respondent was unfit for work for seven days. Thereafter the respondent returned to full‑time work. The respondent said that she continued to experience severe physical and psychological symptoms which affected her ability to work effectively. On or about 16 January 2015 (ie some 20 months after the incident) the respondent accepted a voluntary redundancy - the respondent was given the choice of accepting the redundancy or relocating to Perth. The respondent applied for other work without success.
Later - in September 2019 and October 2021 - the respondent gave birth to two daughters. Before the incident the respondent had not planned to have any more children.
The respondent has not returned to work since January 2015. In findings that are unchallenged on appeal the primary judge stated:
[T]he evidence establishes that [the respondent] likely suffered PTSD because of the incident, and this was likely to have worsened any feelings of physical pain and discomfort. I find that [the respondent's] symptoms have largely remained despite the effluxion of time, although she has learned to manage them, to some extent, with lifestyle changes.
Although I find that [the respondent's] PTSD is likely to be in remission (based on the most recent diagnosis of Dr Piirto), the evidence does not establish that [the respondent's] feelings of emotional distress have abated [228] ‑ [229].
The primary judge found that the combination of the respondent being made redundant and suffering the physical and emotional symptoms of her condition resulted in her forming a belief that she was unsuitable for work. Her Honour found that the respondent abandoned hope of resuming a useful working life. Since that time, in the primary judge's view, the respondent was functionally unsuitable for any kind of work as a consequence of her condition. The primary judge thus held that the respondent had suffered a total loss of earning capacity until the date of judgment [245] ‑ [246].
The evidence at trial and the primary judge's reasons
At trial the respondent submitted that her symptoms had rendered her incapable of work.
Medical experts who had either treated or examined the respondent agreed that she had suffered, and continued to suffer, symptoms of pain, discomfort and poor mental health. At trial, while the appellant admitted liability, the appellant disputed the quantum of the respondent's claim for past and future economic loss. The appellant submitted that, with the exception of the initial seven-day period, the respondent had not established any loss of earning capacity attributable to the caustic soda poisoning incident.
The primary judge identified four main areas of dispute relevant to the assessment of damages. Of those two remain relevant on appeal. They are:
1.Whether the respondent suffered a loss of earning capacity attributable to the incident; and, if so, to what extent.
2.Whether the respondent's condition was likely to improve with psychotherapy. (A closely related issue of whether the respondent had failed to mitigate her loss by refusing psychotherapy treatment was resolved adversely to the appellant at trial and is not reagitated on the appeal.)
The other issues, no longer relevant on appeal, concerned whether there were intervening acts which affected the causal link between the caustic soda incident and the appellant's claimed losses. The first matter relied on by the appellant in this respect was the respondent's decision to accept the voluntary redundancy. The second matter was the respondent's decision to have further children. Both of these matters were resolved in favour of the respondent. These aspects of the primary judge's decision are unchallenged for the purpose of the appeal.
The primary judge's reasons contain a detailed account of the evidence adduced at trial including a comprehensive history of the respondent's medical treatment. On appeal the remaining factual dispute is quite narrow. In considering that dispute it will be necessary to address some of the evidence. For now, however, it will suffice to identify the witnesses and some of the material conclusions reached by the primary judge. These reasons should, however, be read with the more detailed account of the evidence at trial; and, in particular, the history of the respondent's medical treatment as is recounted in the primary judge's reasons. See primary reasons [24] ‑ [25], [103] ‑ [203].
The respondent called four lay witnesses - herself, Luke Guppy (her long‑term partner), her son and Laura Nihill (a former co-worker).
The primary judge had some reservations about the reliability of the respondent's evidence. The primary judge identified implausible evidence and characterised the respondent as presenting in a way that was 'excessively emotional'. However, her Honour did not consider that the respondent was deliberately lying or exaggerating her symptoms. Rather, the respondent's demeanour was said to be consistent with her complex psychiatric presentation as observed by both Dr Risbey and Dr Piirto (Dr Piirto being a consultant psychiatrist called by the appellant). In eschewing any finding that the respondent was being deliberately untruthful or feigning symptoms of distress for effect the primary judge said that her assessment of the respondent's truthfulness as a witness was consistent with Dr Piirto's evidence that the respondent was not malingering or feigning her physical complaints [80] ‑ [85].
The primary judge seemingly accepted Dr Piirto's evidence that the respondent was not malingering or feigning her physical complaints [84], [224].
The respondent adduced medical evidence from:
1.Dr Mark Hall - Dr Hall was the respondent's treating general practitioner. Dr Hall provided reports dated 17 December 2016, 19 June 2018 and 23 July 2020. Among other things Dr Hall was of the opinion that the respondent's psychological symptoms were greater than her physical symptoms [127]. Dr Hall gave evidence that the respondent was unemployable and would remain so until her physical and psychological symptoms resolved [129]. However, on various dates in May and June 2018 Dr Hall had certified the respondent as fit for her occupational duties as a business administrator [131], [134].
2.Dr Lance Risbey - Dr Risbey was the respondent's treating psychiatrist. The respondent consulted Dr Risbey between October 2014 and June 2015 on three occasions. In mid‑2015 Dr Risbey provided provisional diagnoses of PTSD [137] ‑ [138]. Dr Risbey thought that psychotherapy would lead to a 'good prognosis' in the long‑term; although the short-term prognosis was 'poor' [138], [141]. In his oral evidence Dr Risbey said that the respondent had suffered somatisation - the sensation of bodily pain where there was no apparent cause. Dr Risbey said this was a very common trauma response [142]. The primary judge accepted Dr Risbey's evidence [147]. However, on the question of whether the respondent was fit for work, Dr Risbey declined to express an opinion [146].
3.Dr Phillip Finch - Dr Finch was the respondent's treating pain specialist. Dr Finch treated the respondent between June 2015 and January 2019. Dr Finch provided reports dated 30 June 2015, 29 February 2016, 8 May 2017, 18 February 2019 and 9 June 2022 (the last report being in the nature of a medico‑legal report following a review at the request of the respondent's solicitor). Dr Finch's opinion was that the most likely explanation for the respondent's symptoms was neuropathic pain syndrome [159]. He expressed the opinion that the respondent was unfit to work until retirement age [160].
4.Dr Frederick Ng - Dr Ng is an examining consultant psychiatrist. The respondent was assessed by Dr Ng on 21 December 2020 and 1 June 2022. Relevantly:
(a)As at December 2020 Dr Ng considered that the respondent had developed PTSD which was partially treated but was persistent and remained problematic [168]. Dr Ng thought the respondent would benefit from psychotherapy; but he considered that the respondent was likely to suffer psychiatric problems for the foreseeable future [169] ‑ [170]. Dr Ng opined that, from a psychiatric perspective, the respondent was totally unfit for work [173], [182] (see also [172] ‑ [175]).
(b)As at June 2020 Dr Ng considered that the respondent continued to experience ongoing residual anxiety symptoms to a varying extent in a generalised manner [177]. Dr Ng again expressed the opinion that the respondent was unfit for work [178], [182]. Dr Ng did not disagree with Dr Piirto's opinion that the respondent was suffering from an 'unspecified anxiety disorder' but stood by his diagnosis of PTSD [179]. Dr Ng suggested that the PTSD had become more residual and had been replaced by generalised anxiety symptoms [179].
Dr Ng accepted that there might be some psychiatric improvement. Thus it was premature to suggest that the respondent could never return to work. But Dr Ng considered that the prognosis for psychiatric improvement was poor [183], [185].
The appellant adduced expert medical opinion evidence from:
1.Dr Itad Dayoub - Dr Dayoub is a consultant occupational physician. The respondent was examined by Dr Dayoub on 18 August 2020. Dr Dayoub observed that the respondent's physical injuries had resolved [201]. In Dr Dayoub's opinion the respondent was capable of returning to work on a full‑time and unrestricted basis as a maintenance manager [201] (see also [202]). However, in terms of the respondent's ability to work, Dr Dayoub had not considered the respondent's psychological issues because that was outside his area of expertise [203]. The primary judge considered that the psychiatric evidence was more helpful in answering the question of the respondent's capacity for work [213].
2.Dr Helena Piirto - Dr Piirto is a consultant psychiatrist. The respondent was examined by Dr Piirto on 8 June 2021. It will be necessary to examine Dr Piirto's evidence in greater detail in evaluating ground 1 and ground 3. For now it suffices to state that:
(a)Dr Piirto considered that the respondent presented with unspecified anxiety disorder with limited PTSD phenomena and a somatic symptom disorder [190]. Dr Piirto considered that the respondent had suffered from PTSD but that she no longer met the diagnostic criteria for diagnosing PTSD [194].
(b)Dr Piirto considered that pre‑existing psychological parameters - ie innate cognitive schema - had contributed to the emergence of the respondent's complex physical and psychiatric profile [191] (see also [197]).
(c)Dr Piirto considered that the respondent did have the capacity to work, stating that:
[The respondent] does have the capacity to engage in her pre‑existing employment from a psychiatric perspective. However, I believe she would need to engage in part time hours initially, increasing to full time over six months with concurrent appropriate psychological intervention.
I believe [the respondent] will be distracted by her physical complaints on occasion. However, from a psychiatric perspective I would not anticipate these would be debilitating or persist in the long term [192] (see also [195]). (emphasis added)
Dr Piirto considered that the respondent's capacity to work full‑time was demonstrated by the circumstance that the respondent had continued to work full‑time for a period of 18 months after the incident [193].
The primary judge decided that she should not rely on any opinion expressed by Dr Hall concerning the respondent's loss of earning capacity. Her Honour was not satisfied that Dr Hall had appropriate specialist qualifications [135]. The primary judge accepted Dr Finch's opinion on the likely cause of the respondent's pain [162] (see also [213]). But her Honour did not accept Dr Finch's evidence on the respondent's unfitness for work [213]. In circumstances where Dr Finch had no expertise in occupational medicine or psychiatry her Honour did not consider that Dr Finch was qualified to express an opinion about the respondent's present capacity for work [213]. The primary judge also observed that, in providing his report of June 2022, Dr Finch had last reviewed the respondent on 30 June 2019 and thought that little had changed. However, since that date the unchallenged evidence was that the respondent had given birth to her two daughters and had reported not using pain relief for her symptoms since that time [162].
All three psychiatrists agreed that the respondent had suffered a very significant psychiatric injury [204]. So far as there were differences as to the precise characterisation of the respondent's psychiatric condition the primary judge considered that:
[T]he precise diagnosis of [the respondent's] illness is not important insofar as an assessment of damages is concerned. What is important is that all experts agree [the respondent] has suffered significant psychiatric illness because of the incident, and she suffers the effects of such illness to this day [211].
The matter for resolution was, instead, the extent to which the respondent's capacity for work had been affected - an issue about which the psychiatrists were in disagreement [211]. The primary judge characterised Dr Piirto's opinion to be that the respondent 'was capable of work, but would need to return to work gradually, accompanied by psychotherapy, over a 3 - 6 month period' (emphasis added) [208]. By contrast, the primary judge identified that Dr Ng did not consider that the respondent was capable of work and would never be capable of returning to work in any capacity [208].
At the heart of the appeal is whether in so describing Dr Piirto's opinion the primary judge mischaracterised or misunderstood the effect of Dr Piirto's evidence as to the respondent's capacity to work.
The primary judge resolved the factual question of the respondent's capacity for work in these terms:
Dr Ng and Dr Piirto disagreed about whether [the respondent] was incapacitated for work. Dr Ng thought that [the respondent] had suffered a total incapacity for work. Dr Piirto on the other hand thought that [the respondent] could return to work provided she received appropriate psychotherapy and did so on a gradual basis.
The fact that [the respondent] continued to work for some 18 months after the incident (and there is no evidence she needed sick leave in that time) affects the weight of the opinion of Dr Ng about [the respondent's] capacity for work. (Dr Ng was of the belief that [the respondent] had not worked since the incident.) The fact that [the respondent] continued to work is evidence that [the respondent] retained a capacity for work after the incident (albeit that her performance and motivation had been significantly diminished).
Dr Dayoub's expertise as an occupational physician was not challenged. I accept his opinion that, from a physical perspective [the respondent] was not incapacitated for office work. However, Dr Dayoub's opinion that [the respondent] was not incapacitated for work did not factor in the impact of [the respondent's] psychiatric condition. Therefore, I would ascribe less weight to the opinion of Dr Dayoub about [the respondent's] capacity for work in terms of her psychiatric condition.
It follows from the foregoing that I prefer the evidence of Dr Piirto [214] ‑ [217]. (emphasis added)
In substance, by preferring the evidence of Dr Piirto, the primary judge was satisfied that the respondent could return to work provided that the respondent received appropriate psychotherapy and did so on a gradual basis.
The primary judge then turned to causation issues. The primary judge said there were three relevant issues. First, based on the respondent having had a prior episode of mental ill health in 2012, whether and to what extent the respondent's condition was caused by that episode rather than the caustic soda poisoning incident. Second, whether the respondent had failed to mitigate her loss by failing to have psychotherapy (although the primary judge described this as a 'causation' issue she correctly identified that any contention of failure to mitigate was an issue on which the appellant bore the onus of proof). Third, the impact of the matters relied on by the appellant as intervening acts.
In relation to the first and third of these three issues:
1.The primary judge found that the respondent's physical injuries and her psychological condition was caused or materially contributed to by the appellant's negligence [223] (see generally [224] ‑ [230]). Moreover, given the limited information available as to the 2012 episode, the primary judge considered that she should not approach the assessment of damages on the basis that there should be a reduction in the award because of a pre‑existing condition [226].
2.The primary judge held that there were no intervening acts which meant that the caustic soda poisoning incident ceased to be a cause of the respondent's losses [231] ‑ [248].
On the latter point the primary judge referred to evidence in addition to the psychiatric evidence. Her Honour said it could be inferred, as a matter of common experience, that the respondent's symptoms would have had some effect on her capacity for work. The primary judge observed that the former co-worker's evidence corroborated that the respondent's mood and behaviour at work changed - something which meant that the circumstance that the respondent continued to work at Boom Logistics for a while did not mean that the respondent's capacity to work was not affected [240].
After dealing with the first of the suggested intervening acts the primary judge stated the following:
I find that the combination of [the respondent] being made redundant and suffering the physical and emotional symptoms of her condition, resulted in her forming a belief that she was unsuitable for work. I find she simply abandoned hope of resuming a useful working life. I find that since that time, she had become functionally unsuitable for any kind of work as a consequence of her condition.
I find [the respondent] suffered a total loss of earning capacity until the present time [245] ‑ [246].
The primary judge returned to these observations when assessing loss of earning capacity. Her Honour discussed the relevant principles as to compensation for loss of earning capacity by quoting extensively from Husher v Husher[2] and Montemaggiori v Wilson.[3] The primary judge then said that she assessed loss of earning capacity on the basis that, between 2015 and the present time, the respondent had been totally incapacitated for work [253] (see also [276]). The primary judge stated:
I find that, after accepting the redundancy from Boom Logistics in January 2015, [the respondent] continued to experience significant symptoms. In 2015 and 2016 [the respondent] was seeing Dr Risbey and Dr Finch. By that time, she believed she was incapacitated for work having applied for jobs unsuccessfully. I find that her belief that she had been rendered incapacitated for work due to her complex psychiatric profile, became intractable.
I find that [the respondent] is physically capable of her former work. However, psychologically she has not been capable of working since she was made redundant. I base my conclusion in this regard on the expert evidence, considered as a whole but, in particular, the evidence of Dr Piirto [254] ‑ [255]. (emphasis added)
[2] Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 [7].
[3] Montemaggiori v Wilson [2011] WASCA 177 [28] ‑ [33].
Having, for those reasons, dealt with the appellant's past loss of earning capacity, the primary judge turned to future loss. Her Honour stated:
As to the issue of to what extent [the respondent's] future earning capacity has been diminished, I accept that [the respondent] has, until now, been incapable of work. However, I consider that [the respondent] is likely to be capable of returning to work provided she engages with a skilled psychotherapist, and in a graduated return to work programme.
Although I consider that [the respondent] would be capable of some work, I am nevertheless of the view that [the respondent's] capacity to return to her pre‑injury working capacity has been significantly affected. [The respondent's] present belief that she is incapable of returning to work and the outward manifestations of her psychological condition are likely to render her an unattractive proposition for many employers. However, Dr Piirto considered that [the respondent's] condition is likely to improve once the case is over [256] ‑ [257]. (emphasis added)
The respondent had asked the primary judge to assess damages on the basis that she, the respondent, had no retained earning capacity. In that regard the respondent did not accept that she would benefit from psychotherapy. The primary judge rejected that submission. Her Honour found, and it is unchallenged on appeal, that the respondent would benefit from psychotherapy provided that a suitably qualified and understanding practitioner was engaged [259], [268] (see also [260] ‑ [263]).
In this context the primary judge addressed the second 'causation' issue (see [29] above). Her Honour held that the respondent had not acted unreasonably in refusing psychotherapy until now meaning that there had been no relevant failure to mitigate [267]. In assessing the reasonableness of the respondent's decision not to pursue psychotherapy the primary judge had regard to two matters [266]:
1.Her Honour accepted that the respondent was genuinely fearful of having to talk about the caustic soda incident - there was, in this respect, evidence of a snowballing effect whereby the respondent's anxiety worsened her physical symptoms and her physical symptoms increased her anxiety [263].
2.The evidence of the respondent's treating doctors did not reveal that they had actively tried to persuade the respondent that psychotherapy treatment would not be unsafe and would be helpful.
The respondent had mentioned other reasons for not wanting to engage in psychotherapy [261]. These need not be examined (although, as the primary judge observed, the financial reason relied on by the respondent would cease to be an impediment to future treatment once the respondent received her award of damages [269] (see also [296])). For present purposes it is enough that the primary judge accepted that there was no failure to mitigate, ie the respondent had not acted unreasonably in refusing to participate in recommended treatment in the form of psychotherapy. As previously mentioned, the appellant does not challenge this finding on appeal. Senior counsel for the appellant confirmed as much at the appeal hearing.[4]
[4] Appeal ts 9, 11.
In completing her findings as to future loss of earning capacity the primary judge stated:
On the issue of whether [the respondent] has a retained earning capacity I accept the evidence of Dr Dayoub that [the respondent] is not physically incapacitated for work, despite her continuing to experience physical pain and discomfort. I accept the evidence of Dr Piirto that, with the right counselling and support [the respondent] would be suitable for some kind of work. I nevertheless find there has been a significant diminution in her [ie the respondent's] earning capacity which is difficult to quantify.
Doing the best I can, I would estimate [the respondent's] future loss of earning capacity at 40% [270] ‑ [271].
In this respect, referring to Dr Piirto's evidence, the primary judge considered that the respondent's mental health would improve post-judgment. However, there were, in the primary judge's view, too many imponderables to make a precise calculation for future loss of earning capacity. Her Honour considered that a global award was appropriate. Adopting the approach accepted in Bowen v Tutte[5] and Pene v Murphy[6] the primary judge reduced the allowance for future loss of earning capacity based on a 40% diminution in earning capacity from the date of judgment until the respondent turned 67 (which the primary judge rounded to 31 years) [294] ‑ [296].
[5] Bowen v Tutte (1990) Aust Torts Reports 81-043.
[6] Pene v Murphy [2004] WASCA 103.
Finally the primary judge turned to quantification. Her Honour made assessments as follows [272] ‑ [317]:
Past loss of earning capacity
$449,312.00
Past superannuation
$45,201.00
Interest on past economic loss
$145,386.82
Future loss of earning capacity (including future superannuation)
$350,000.00
Past travel expenses
$1,918.00
Special damages
$18,723.00
Interest on special damages
$5,504.57
Future medical
$10,000.00
General damages
$100,000.00
TOTAL:
$1,126,045.39
In quantifying the allowance for future loss of earning capacity the primary judge reduced the amount initially calculated by 6% for contingencies [298]. This was consistent with an earlier finding based on the circumstance that the respondent had suffered a bout of mental ill health in 2012. The primary judge held that, as the respondent may have been vulnerable to a further episode of mental ill health due to stressful life events, there should be a slightly higher deduction for contingencies at 6% [230]. However, the primary judge did not apply any discount for contingencies in quantifying the allowance for past loss of earning capacity.
Grounds of appeal
There are three grounds of appeal.
By ground 1 the appellant contends that the primary judge erred in law and in fact in awarding the respondent $494,513.54[7] (excluding interest) on account of past loss of earning capacity.
[7] By reference to the identified pars of the primary reasons this figure is calculated as:
- 7 days off work [272] ‑ [275] $1,355.54 - Add: Past loss of earning capacity [276] ‑ [289] $447,957.00 - Add: Past loss of superannuation [291] $45,201.00 $494,513.54 There are three aspects to ground 1 corresponding to three particulars that are provided in support of ground 1. The appellant alleges:
1.By particular (a), that the primary judge erred in fact by finding that the respondent was functionally unsuitable for any kind of work from 16 January 2015 onward (here contending that the primary judge mischaracterised Dr Piirto's evidence as it related to the respondent's earning capacity). Senior counsel for the appellant identified the alleged factual error to be at primary reasons [246] (see [32] above) (particularly as [246] was explained at primary reasons [255]).[8]
2.By particular (b), that the primary judge erred in law in upholding the respondent's claim for past economic loss on the basis of 'a total incapacity' in that the primary judge failed to provide legally adequate reasons for that conclusion.
3.By particular (c), that the primary judge erred in law by failing to make any reduction in the award because of a pre‑existing condition in circumstances where, at primary reasons [230], the primary judge accepted the possibility of the respondent suffering episodes of poor mental health in the event of stressful life events.
[8] Appeal ts 7.
At the appeal hearing, senior counsel for the appellant described the issue raised by particular (b) to be the essence of the appeal. The appellant contends that the primary judge failed to adequately expose her Honour's reasoning process for finding that the respondent was incapable of working to the extent as found. There is, according to the appellant, no discernible pathway of reasoning that links her Honour's acceptance of Dr Piirto's expert evidence and the conclusions that her Honour reaches as to past and future loss of earning capacity.[9]
[9] Appeal ts 2 - 4.
By ground 2 the appellant contends that the primary judge erred in awarding the respondent $145,386.82 interest on past loss of earning capacity. The appellant says the correct amount is $120,760.21. The respondent concedes this ground. The respondent was correct to do so. The primary judge's interest award included a component for the period during which the respondent returned to work and worked full time [292].[10] It is self-evident that there was no relevant loss over this period. Accordingly, no interest allowance should have been made in respect of this period. Ground 2 must be allowed.
[10] The interest calculation is for a period of '9.8 years', ie from the date that the respondent ingested the contaminated chips.
We will reproduce ground 3 in full. It states:
The trial judge erred in fact and in law in awarding the respondent future economic loss of $350,000.
Ground 3 is plainly inadequate. A ground must not merely allege that the primary court erred in fact or in law.[11] Yet that, in substance, is all that ground 3 purports to do. The nature of the alleged factual and legal error is not disclosed. At the appeal hearing senior counsel for the appellant explained ground 3 as raising the same issues as raised for determination in relation to particulars (a) and (b) of ground 1, but in the context of the primary judge's finding as to future loss of earning capacity.[12]
[11] Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4A)(a).
[12] Appeal ts 5 - 7.
The alleged factual error, for the purposes of ground 3, was identified by senior counsel for the appellant as being at primary reasons [271] (see [38] above) when read with primary reasons [270] and [297].[13]
[13] Appeal ts 8.
Senior counsel for the appellant was asked to identify the substituted findings the appellant contends for in relation to past and future loss of earning capacity. As to past earning capacity, the appellant says that, on the evidence, the respondent should be assessed as having a 50% loss of earning capacity from the time of the respondent's redundancy (in mid‑January 2015) to the date of judgment. As to future earning capacity, the appellant says that, on the evidence, the respondent should be assessed as having a 50% loss of earning capacity - but, importantly, only for a total of six months post-judgment (the respondent thereafter not suffering any further loss of earning capacity).[14]
[14] Appeal ts 9, 39 - 42.
Applicable legal principles
In an action for damages for personal injury a claimant is compensated for loss of earning capacity not loss of earnings. Earning capacity is an intangible asset that has a value only to the extent that it is or could be exploited financially. The claimant has the legal onus of proving loss of earning capacity and the extent to which that loss produces or may produce financial loss. No compensation is payable for loss of earning capacity unless the loss is or may be productive of financial loss. The relevant question is whether, as a result of the breach, the claimant has been rendered less capable of earning income. In determining that question the court looks at the claimant's capacity for work beyond the particular employment in which he or she was engaged at the time of the breach.[15]
[15] Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 3 - 5, 12, 16 ‑ 20.
The claimant must prove his or her loss - this includes the quantification in money that should be adopted in the amount awarded.[16]
[16] Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 159.
In Wainwright v Barrick Gold of Australia Ltd Murphy JA explained:
[I]t is desirable for a plaintiff to call precise evidence of what he or she would have been likely to earn but for the injury and what the plaintiff actually did earn (past loss) and was likely to earn after the injury (future loss). Nevertheless, the failure to call such evidence by a plaintiff does not necessarily result in nominal damages, although, if the plaintiff calls incomplete evidence, it may be difficult to complain of a low award for lost earning capacity. Similarly, a defendant who fails to adduce evidence with respect to a plaintiff's retained earning capacity, in the discharge of any evidential onus that might arise, runs the risk that the court may find a retained earning capacity which is lower than that which would apply if proper evidence had been adduced by the defendant and accepted.[17] (citations omitted)
[17] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 [93].
Damages for financial loss likely to result from personal injury can only be an estimate - often a very rough estimate - of the present value of a claimant's prospective loss.[18]
[18] Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 413.
Where an injured claimant has suffered a loss of earning capacity the court should do its best to place a value on that loss even in the absence of evidence (or where there is uncertainty in the evidence) as to the availability of employment in the claimant's residual capacity or the amount that could be earned in such employment.[19] Examples of that may be seen in Bowen v Tutte and Pene v Murphy (the two authorities referred to by the primary judge). In Bowen v Tutte it was held that in the absence of any evidence of the availability of suitable employment for an injured claimant, or of earnings which could be derived from such employment, a trial judge may, in an appropriate case, assess the claimant's residual earning capacity as a percentage of his or her pre‑accident earning capacity.[20] In Pene v Murphy it was held that the claimant's loss of earning capacity should be assessed as a percentage of his pre‑accident earning capacity as there were considerable uncertainties associated with his prospects of obtaining work within his residual capacity.[21]
[19] Montemaggiori v Wilson [32]. See also: Bowen v Tutte (68,086); Pene v Murphy [6].
[20] Bowen v Tutte (68,086 - 68,087), (68,092).
[21] Pene v Murphy [30], [74]; compare [50] ‑ [54].
However, as Buss & Newnes JJA observed in Montemaggiori v Wilson, such an approach is not appropriate in every case. In the end the question is one of fairness.[22]
[22] Montemaggiori v Wilson [32]. See also Pene v Murphy [31].
It should also be remembered that the assessment of damages for personal injuries in an action for negligence is not an exact science.[23] Ultimately the process must be one of judgment rather than calculation.[24] Some aspects of the exercise can only be intuitive.[25] In any event the process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case.[26]
[23] Montemaggiori v Wilson [28].
[24] Todorovic v Waller (413).
[25] Paul v Rendell [1981] UKPC 19; (1981) 55 ALJR 371, 372.
[26] Montemaggiori v Wilson [28].
The nature of such an assessment has implications for appellate review. It is well established that:[27]
1.An assessment of damages in an action for negligence has many of the characteristics of a discretionary judgment.
2.In general, an appeal from a trial judge's assessment of damages for non-economic loss for a personal injury is to be determined in the same manner as an appeal from the exercise of discretion of a trial judge - an error must be identified within the terms of House v The King.[28] (This principle is of limited significance to the present appeal so far as the appellant's challenge is directed to the primary judge's assessment of loss of earning capacity).
3.There is a similar need for appellate restraint in review of the past and future hypotheticals of an assessment of damages for lost earning capacity - at least where the decision reflects a degree of judicial prophesy or speculation. Appellate courts observe restraint in recognition of the necessary imprecision and evaluation involved in determining the likelihood that a past hypothetical event would have occurred or a future hypothetical event will occur.
4.In order to justify review on the ground that an award is excessive the compensation must be so excessive as to be beyond the limits of what a sound discretionary judgment could reasonably adopt.
[27] McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 [126]; Montemaggiori v Wilson [29]; Wainwright v Barrick Gold of Australia Ltd [88]. See more generally the principles recited in Doerr v Gardiner [2023] QCA 60 [145] ‑ [151].
[28] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
As to the third of those principles, it should be emphasised that the assessment of future loss of earning capacity involves a 'double exercise' in the art of prophesying - what the future would have been if the injury had not occurred and what it is now likely to be.[29]
[29] Paul v Rendell (372); Todorovic v Waller (412).
The requirement for appellate restraint recognises that the task undertaken by the primary judge is an exercise in judgment rather than calculation. An appellate court cannot interfere with an award of damages merely because it would have awarded more or less had it tried the case at first instance.[30] Nor is an appellate court to approach its evaluation of an assessment of damages by determining the amount it would award left to itself as the basis of the decision as to whether the award is so disproportionate as to go beyond the range of a sound exercise of judgment in the awarding of damages.[31] Instead it must be demonstrated that the trial judge's exercise of judgment has miscarried because, for example, the trial judge acted on a wrong principle of law or has misapprehended the facts or the award is so inordinately low or so inordinately high that it is apparent that the trial judge has made a 'wholly erroneous' estimate of the damage suffered.[32]
[30] Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190, 194 - 195; Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, 369; Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, 352; H & Q Café Pty Ltd v Melbourne Café Pty Ltd [2023] VSCA 200; (2023) 72 VR 53 [105].
[31] Wilson v Peisley (1975) 50 ALJR 207, 209, 213.
[32] Miller v Jennings (196); Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 124; Wilson v Peisley (211 ‑ 212), (214); Precision Plastics Pty Ltd v Demir (369). See also McCartney v Orica Investments Pty Ltd [110] ‑ [126] (esp. those authorities cited at [119], [121], [123], [125]).
These principles, in particular the principles governing appellate review, provide the background in which the grounds of appeal fall to be evaluated.
Disposition ground 1: the award for past loss of earning capacity
It is convenient to first deal with the particulars to ground 1 that allege legal error. It should, however, be observed that ground 1 and each of the particulars was directed to the primary judge's findings at primary reasons [245] ‑ [246] and [253]. This was the primary judge's factual conclusion that the respondent's past loss of earning capacity was to be measured on the basis that between 16 January 2015 and the date of judgment the respondent was totally incapacitated for work.
Particular 1(b) - Alleged legal error by failure to provide adequate reasons
The parties' submissions
The appellant submitted that the primary judge failed to properly expose her reasoning process. It was asserted that, viewed objectively, the appellant was unable to discern why the impugned finding was made. That was particularly the case given the concerns expressed as to the reliability of the respondent's evidence and the primary judge's express finding that she preferred Dr Piirto's evidence over that of the other psychiatrists. The appellant contended that the finding that the respondent was totally incapacitated was irreconcilable with Dr Piirto's evidence that, from a psychiatric perspective, the respondent had capacity to engage in her pre‑existing employment.
The appellant asserted that there was a clear and incurable 'fault line' in relation to the primary judge's reasoning process.
The respondent submitted that the primary judge's reasoning process was clearly exposed - referring, in this respect, to primary reasons [223] ‑ [228], [238] ‑ [242] and [245] ‑ [246].
Applicable legal principles
The generally applicable principles dealing with the adequacy of reasons are well-established.[33]
[33] What follows at [67] ‑ [69] below is substantially drawn from Player v Avery [2022] WASCA 147 [101] ‑ [103].
In evaluating the adequacy of reasons for decision the critical question is whether the essential path of reasoning to the impugned conclusion is disclosed in sufficient detail and with sufficient certainty to meet the twin objects that: (1) the litigant knows why he or she was unsuccessful; and (2) an appeal court may determine whether the decision involved appellable error.[34]
[34] Browne v Browne [2019] WASCA 1 [80], [86]; Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 [182]; Pave Wealth Services Pty Ltd v Jones [2021] WASCA 7 [121]; L v P [2022] WASCA 40 [101].
As was stated in Browne v Browne:
The principles relevant to an evaluation of the adequacy of reasons are well established and include the following:
(1)Reasons for decision need not be lengthy or elaborate.
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3)It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires.
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.[35] (citations omitted)
[35] Browne v Browne [80]. See also: Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112]; Wilson v Arwon Finance Pty Ltd [181]; L v P [100]; Greenslade v Hiew [2022] WASCA 47 [42].
As to the last point, the authorities accept that the content and detail of reasons will vary according to the nature of the jurisdiction that the court is exercising and the particular matter the subject of the decision.[36] So, for example, where reasons for decision concern an assessment of damages for non-pecuniary loss, it is to be expected that a trial judge's reasoning process will be less developed and more imprecise than in other areas in which judicial reasons are required and provided.[37]
[36] Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 [56]; DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 [32].
[37] Player v Avery [103] ‑ [105].
There is often a lack of precision involved in an argument that a judge's reasons are insufficient. For example, such an argument may encompass a complaint of failure to examine all material relevant to an issue - which is a complaint of error in fact finding rather than the legal adequacy of the reasons.[38] As Basten JA (Hodgson & Bryson JJA agreeing) explained in Gordon v Ross:
As is frequently the case in relation to an appeal by way of re-hearing, a complaint of lack of adequate reasons tends to obscure the real ground of complaint. Thus, if the real complaint is that no finding has been made, the question of reasons is irrelevant. There is no obligation to give reasons for a finding which has not been made. The gravamen of that complaint, whether right or wrong, must be that no finding has been made in circumstances where there was an obligation to address the issue. On the other hand, if a finding has been made, but is not supported by the evidence, there is little substantial benefit to an appellant to complain of inadequate reasons: on a re-hearing, it would generally be necessary for the court hearing the appeal to consider the evidence and determine for itself whether it was adequate to support the finding made.[39]
[38] Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 [129] ‑ [130].
[39] Gordon v Ross [2006] NSWCA 157 [81]. See also Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) Aust Torts Reps 81-864 [311], [314] ‑ [316].
As to the second category identified by Basten JA, an appellant cannot disguise what, in truth, is a challenge to the factual finding of a trial judge by saying that there is inadequate reasoning for that factual finding, and thereby avoid the hurdles faced by challenges to factual findings. On an appeal by way of rehearing the appellant must, ordinarily, identify error in the factual finding. Sometimes, however, a finding may be made without reasoning in support and it may not be possible to discern error from a review of the evidence. If the correctness of the finding is material to the outcome the absence of adequate reasons may then constitute error sufficient to require a retrial.[40]
[40] Greenslade v Hiew [47] ‑ [48].
This explains why inadequacy of reasons does not necessarily amount to an appellable error. Rather, as this court has previously stated, an appeal court will only intervene when the inadequacy or insufficiency in the reasons is such as to give rise to a miscarriage of justice.[41]
Conclusion and determination
[41] Greenslade v Hiew [49].
Particular (b) of ground 1 is misdirected.
The appellant is correct to say that the primary judge's conclusion as to the respondent's incapacity for work is predominantly stated to be based on the evidence of Dr Piirto. The primary judge did not reject any of Dr Piirto's evidence and stated on numerous occasions that Dr Piirto's evidence on identified subjects ought to be accepted. Most importantly, as we have summarised at [25] ‑ [28] above, in finding that the respondent could return to work provided that she received appropriate psychotherapy and did so on a gradual basis, the primary judge expressed reliance on Dr Piirto's evidence [208], [214], [217]. The primary judge based her consequential finding that the respondent had been incapable of working since she was made redundant on the expert evidence 'considered as a whole' but relied in particular on Dr Piirto's evidence [255].
The primary judge also observed that her assessment of the respondent's truthfulness was consistent with Dr Piirto's evidence [83] ‑ [85].
It does not follow, however, that the primary judge failed to disclose the intellectual process that led to her decision that the respondent was totally incapacitated for work from mid‑January 2015 until judgment. To the contrary there is a clear and comprehensive exposition of the pathway of reasoning that led to the primary judge's conclusions. We have already developed the process of reasoning undertaken by her Honour. In substance, as to the question of the respondent's capacity to work:
1.There was identification of the areas of dispute in relation to the assessment of damages - these included whether the respondent suffered a loss of earning capacity attributable to the caustic soda poisoning incident.
2.The primary judge summarised the evidence of the witnesses called at trial.
3.The primary judge was satisfied that the respondent suffered (and continued to suffer) a significant psychiatric illness - most likely PTSD - as a result of the caustic soda poisoning incident.
4.In evaluating the question of the respondent's capacity to work the primary judge concentrated on the psychiatric opinions. That is understandable where, on the evidence, the respondent's physical injuries were resolved relatively promptly and the respondent's claimed incapacity was grounded in an ongoing psychiatric injury.
5.The lay evidence had little import to the primary judge's evaluation. The primary judge's limited reliance on the lay evidence was quite understandable where it did no more than confirm the ongoing impact of the respondent's condition on her daily activities thereby validating the psychiatric opinions that the respondent's symptoms were genuine and that that the respondent was not malingering or feigning her physical complaints. Beyond that the lay witnesses lacked the necessary qualifications and expertise to assist the court by proffering any opinion as to the extent to which, if at all, the respondent's psychiatric condition was unmanageable or intractable.
6.As to the expert evidence, the primary judge did not rely on Dr Hall's opinion because of Dr Hall's lack of specialist qualifications. Dr Risbey had the necessary qualification as a psychiatrist but did not proffer a relevant opinion. Nor had Dr Risbey reviewed the respondent recently. Dr Finch was a pain specialist, not a psychiatrist, and in any case thought that little had changed for the respondent between January 2019 and June 2022 whereas in fact the respondent had given birth to two children and reported no longer using pain relief for her symptoms. Dr Dayoub was an occupational physician not a psychiatrist. This left the conflicting opinions of Dr Ng and Dr Piirto.
7.The primary judge summarised Dr Ng's and Dr Piirto's conflicting opinions in the terms that we have mentioned at [25] and [27] above. Relevantly:
(a)Dr Ng considered that the respondent had been and would continue to be incapable of working in any capacity;
(b)Dr Piirto - according to the primary judge' understanding of Dr Piirto's evidence - considered that the respondent could return to work 'provided that' the respondent received appropriate psychotherapy. A return to work was to be 'accompanied' by psychotherapy.
8.The primary judge preferred Dr Piirto's opinion (as her Honour understood that evidence to be) over that of Dr Ng. Her Honour's reasons for preferring Dr Piirto's stated opinion are set out at [27] above.
9.The finding that Dr Piirto's evidence was to be preferred was not the end of the primary judge's consideration of the question of the respondent's capacity to work. Her Honour also dealt with various causation issues and whether the respondent failed to mitigate her loss by not undertaking psychotherapy.
10.The mitigation issue was resolved adversely to the appellant (for reasons that are recounted at [36] ‑ [37] above) as were the other causation issues (again for articulated reasons that are not challenged on appeal - see [29] ‑ [33] above).
11.These findings resulted in the conclusion that the respondent had suffered a total loss of earning capacity to the time of judgment. Psychologically, from the time she was made redundant until the time of judgment, the respondent had been incapable of work.
12.However - consistently with her Honour's stated understanding of Dr Piirto's evidence - the primary judge found that henceforth, provided that the respondent undertook psychotherapy with a skilled psychotherapist, the respondent was likely to be capable of returning to work in a graduated return to work program.
This pathway of reasoning results in the respondent being found to be totally incapable of work from her redundancy to judgment but thereafter having at least some capacity to work. This is because, consistently with the primary judge's understanding of Dr Piirto's evidence, the respondent's return to work was dependent on the respondent undertaking appropriate psychotherapy. To the extent that, pre‑judgment, the respondent had not undertaken psychotherapy, it was for the appellant to establish that the respondent had failed to mitigate her loss by not taking reasonable steps. The appellant did not discharge its onus in this regard. Accordingly, the respondent suffered a total loss of earning capacity to the time of judgment. Post-judgment, however, the respondent was found to be likely to be capable of returning to work if she undertook psychotherapy. In that respect, the financial reason cited by the respondent as a reason for not engaging in psychotherapy would no longer be operative.
At the appeal hearing the court identified the key aspects of the primary judge's reasoning process conformably with what has been stated above. In particular, the court referred to her Honour's apparent understanding of the substance of Dr Piirto's evidence. Senior counsel for the appellant was asked why that was not a sufficiently exposed pathway of reasoning for the purpose of legally adequate reasons. Senior counsel for the appellant stated that the appellant did not agree with the primary judge's characterisation of Dr Piirto's evidence. Senior counsel went on to submit that Dr Piirto's evidence, considered as a whole, was to the effect that the respondent exhibited a capacity to work consistently throughout the time at which the respondent was not working post-redundancy. This, it was said, meant that her Honour had not exposed her pathway of reasoning at all.[42]
[42] Appeal ts 10 - 12.
We disagree. The appellant's submission equates the requirement that reasons be legally adequate with a requirement that reasons be factually and legally correct. To state the obvious, reasons for decision may be legally adequate but nonetheless contain a factual or legal appellable error. Indeed, reasons may even display that a decision‑maker has reached a conclusion that is legally unreasonable or illogical but still meet the requirements to be considered adequate in the sense of the authorities discussed at [66] ‑ [72] above.
Properly understood, the appellant's complaint was not directed to the legally adequacy of the primary judge's reasons but rather with whether her Honour erroneously mischaracterised or misunderstood the effect of Dr Piirto's evidence. The primary reasons are plainly legally adequate. The primary judge clearly reveals her essential pathway of reasoning in the terms that we have summarised above. The fact that it is possible to outline the steps in the primary judge's reasoning demonstrates unequivocally that her Honour more than adequately disclosed the essential path of reasoning that was adopted in determining the case. The appellant ought to have been able to identify why it was unsuccessful. Indeed, so far as particular (a) of ground 1 challenges the determination as to past loss of earning capacity based on her Honour having mischaracterised or having mistaken the effect of Dr Piirto's evidence, it appears that the appellant has identified why it was unsuccessful. All the more so this court is well able to determine from the reasons whether there was appellable error in terms of particular (a) of ground 1.
Particular (b) of ground 1 fails.
Particular 1(c) - alleged legal error by failure to reduce award due to pre‑existing condition
The parties' submissions
The appellant submitted that it was permissible, and indeed appropriate, that the respondent's pre‑existing vulnerability to poor mental health be taken into account for the purpose of assessing past loss of earning capacity. The appellant said that:
1.The primary judge was wrong in law to find that, where there is evidence of a pre‑existing condition, an assessment of damages ought to be undertaken 'with regard to' it.
2.It is uncontroversial that, provided a defendant discharges its evidentiary onus, an assessment of economic loss may be reduced on the basis of the possibility of a further unrelated pre‑existing condition manifesting.
3.Dr Piirto identified the risk of the respondent's pre‑existing mental health condition re-emerging at a later time.
4.Accordingly, the primary judge ought to have discounted her calculation of the amount to be awarded to the respondent on account of loss of earning capacity from 2015 to judgment.
The respondent submitted that, on the evidence in this case, there was no reason to discount for adverse contingencies in relation to past loss of earning capacity. On behalf of the respondent it was pointed out that there was no evidence that the respondent had any work absences due to psychological issues during the 9‑year period of her employment prior to the incident.
Applicable legal principles
In Montemaggiori v Wilson Buss & Newnes JJA considered the application of a discount for contingencies in quantifying an amount for past loss of earning capacity:
The primary judge made a deduction of 3% for contingencies. Whether or not a deduction for contingencies in relation to past loss of earning capacity is appropriate will depend upon the facts of the case: Brown v Dato Pty Ltd [2006] WASCA 170 [17]. Although it is an accepted practice not to make a deduction, there may be circumstances where a deduction is appropriate, such as where some years have elapsed between the injury and the trial: Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, 186. In that case, Mason J said that the period of four years which had elapsed might have justified some deduction. In this case the period was some four years. The deduction of 3% made by the primary judge was not challenged on the appeal and it was an appropriate deduction in the circumstances. We would not interfere with it.[43]
[43] Montemaggiori v Wilson [57].
Accordingly, whether or not a trial judge should discount for contingencies when assessing damages for past loss of earning capacity will always be fact specific.
Consideration and determination
The appellant's primary submission as recorded at [82.1] above is difficult to understand. Perhaps the appellant intended to say 'without regard to' rather than 'with regard to' the pre‑existing condition.
In any case the primary judge made no finding of either kind as a matter of law (as distinct from coming to an evaluative judgment on the facts of the case). In the passage complained of by the appellant - at primary reasons [226] - the primary judge simply concluded that on the facts of the case she should not approach the assessment of damages on the basis that there should be a reduction in the award because of a pre‑existing condition. However, this was a finding dealing with a causation issue based on the pre‑existing condition rather than the application of a discount for contingencies. The primary judge went on to state: 'I find there is no reason to conclude that the incident was not causative of [the respondent's] present physical and psychological presentation' [226].
The primary judge gave reasons for that conclusion. First, there were only sparse details of the respondent's prior bout of mental ill health in 2012. This was described as an episode of depression and anxiety. The primary judge considered that the limited details were insufficient to permit a reliable prediction about the likelihood that the respondent would have developed the psychiatric illness that she suffered from were it not for the caustic soda incident. Second, the appellant had not sought to disentangle any pre‑existing psychiatric illness as a contributing cause of the respondent's illness [225].
However, while considering that the 2012 episode did not preclude a finding that the respondent's psychological condition was caused or materially contributed to by the appellant's negligence, the primary judge acknowledged that the respondent's predisposition was relevant to the assessment of damages. The primary judge stated:
It is nevertheless relevant that [the respondent] had previously suffered a bout of mental ill health. This suggests that [the respondent] may have been vulnerable to a further episode of ill health in the event of other stressful life events: Dr Piirto's evidence, which I accept, was to that effect. Whatever mental health difficulties [the respondent] would have been likely to have suffered in the future, should be reflected in a deduction for contingencies. The chance [the respondent] would have developed poor mental health is not certain. However, I consider it appropriate that I will allow a slightly higher deduction for contingencies at 6%. I must emphasise that the responsibility of [the appellant] for the consequences of its negligence, namely [the respondent] very significant psychological injuries, is not diminished. [230] (emphasis added) (citations omitted)
In calculating the award of damages for future loss of earning capacity the primary judge provided for the 6% discount for contingencies. However, there was no allowance for a 6% discount for contingencies in calculating the award of damages for past loss of earning capacity [289] ‑ [290], [298].
It is difficult to understand why this occurred given the primary judge's finding as reproduced at [89] above. The primary judge contemplated a 6% deduction for contingencies based on the mental health difficulties the respondent would have been likely to have suffered 'in the future'. Reading that passage fairly, and taking into account the evidence of Dr Piirto that the primary judge relied on, the reference to 'in the future' means from the time of the caustic soda poisoning incident rather than from the time of the judgment. The primary judge uses the language of 'would have been likely to have' suffered in the future rather than 'is likely to' or 'will' otherwise have suffered in the future. The primary judge is speaking as and from the time of the injury. And Dr Piirto's evidence as the respondent's pre‑existing psychological factors was directed to the eight‑year period following the incident as well as the future more generally.[44]
[44] See eg GAB 205 - 211.
Nowhere does the primary judge explain why a 6% discount for contingencies is appropriate for future loss of earning capacity but not warranted for past loss of earning capacity. An explanation to that effect would have been expected if - despite the generality of what is expressed in the passage reproduced at [89] above - the primary judge intended to distinguish between the two periods. This is a case in which there is an unusually long passage of time between the respondent's injury and the trial. Prima facie there is no substantial basis to distinguish between the two periods so far as concerns the imposition of a discount for contingencies. If the primary judge had intended to distinguish between the two periods it is to be expected that her Honour would have provided reasons explaining the basis for distinguishing between the two periods. That is all the more so where the primary judge has otherwise given comprehensive reasons that fully explain the basis for her Honour's conclusions and the damages as calculated.
In the circumstances the primary judge's omission to acknowledge any distinction - and to explain why her Honour intended to proceed in that way - is marked. We are driven to conclude that the primary judge has inadvertently omitted to give effect to her Honour's finding that it is appropriate that the award of damages for loss of earning capacity allow a deduction for contingencies of 6%.
Particular (c) of ground 1 should be upheld.
In upholding particular (c) of ground 1 we have not overlooked the respondent's submission that she had not had any work absences due to psychological issues before the caustic soda incident. That is immaterial to the error that has been identified. The primary judge determined that a 6% discount for contingencies was appropriate but then failed to perform the necessary calculation. There was no cross‑appeal against the finding and no basis to reconsider the appropriateness of the discount given the respondent's work history.
Particular 1(a) - alleged factual error in finding that the respondent was functionally unsuitable for any kind of work from 16 January 2015 onwards
The parties' submissions
The appellant submitted that the primary judge mischaracterised or misunderstood Dr Piirto's evidence. The appellant said that:
1.The primary judge justified her relevant findings on the basis that the expert evidence of Dr Piirto was preferred without qualification.
2.The finding that the respondent was totally incapacitated for work from 2015 to 2023 was not supported anywhere in Dr Piirto's evidence - in this respect the appellant referred to various aspects of Dr Piirto's written report and oral evidence.
The respondent emphasised the limitations of appellate review as opposed to the advantages enjoyed by a trial judge in having seen and heard the witnesses and having seen the evidence emerge as a whole over the course of a trial. In this respect:
1.The respondent pointed to the primary judge's positive credibility findings as to the respondent's evidence.
2.The respondent noted the lack of evidence contradicting the evidence she had adduced - it being a feature of the case that the appellant did not seek any medical opinion evidence from an examining medical practitioner until more than seven years after the caustic soda poisoning incident.
3.The respondent said that the primary judge's expressed preference for Dr Piirto's evidence was only one of her Honour's findings and it needed to be understood in context (one of the matters of context being that Dr Piirto did not examine the respondent until more than eight years after the incident).
It was also said that the appellant had not led evidence of work availability or rates of pay theoretically applicable in the event that some work capacity existed.
Applicable legal principles
The principles that apply to appellate challenges to factual findings are well established.[45] For present purposes it is enough to state that in relation to an appeal by way of rehearing:
[45] Relevant recent decisions in this court include: Smart v Power [2019] WASCA 106 [100] ‑ [106]; Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208 [93] ‑ [96]; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [95] ‑ [96]; Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 [105] ‑ [108], [128] ‑ [130], [205] ‑ [213], [244], [262] ‑ [263]; Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 [193] ‑ [194].
1.An appeal court is bound to conduct a 'real review' of the evidence and the trial judge's reasons to determine whether the trial judge has erred in fact or law.[46]
[46] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25]; Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43]; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55].
2.In its examination of the trial record an appeal court accords 'proper weight' to the views of the trial judge.[47]
[47] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 [28].
3.It is necessary for the appellant to demonstrate error.[48] It is not enough to establish that an alternate finding was open or that 'a choice arises between conclusions equally open and finely balanced' - the appeal court must be satisfied that the trial judge's decision is wrong and that it should be corrected.[49] Nor is it sufficient to contend that the trial judge should have accepted certain evidence - the appellant must demonstrate why the primary judge was in error in not accepting that evidence.[50]
[48] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
[49] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [21] ‑ [22], [28] ‑ [30]. See also Minister for Immigration, Local Governments and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 [45], [50]; Joyce v Anderson [205].
[50] Smart v Power [100]; Child and Adolescent Health Service v Mabior [96]; Zerjavic v Chevron Australia Pty Ltd [96]; Wilson v Arwon Finance Pty Ltd [194].
4.The nature and extent of the trial judge's advantage informs what is required in order to reach, and the extent of appellate restraint in reaching, a conclusion of error.[51]
[51] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [25], [28] ‑ [29]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [7] ‑ [10], [47], [53]; Smart v Power [103]; Joyce v Anderson [108], [208] ‑ [213].
5.Where a trial judge's factual finding is likely to have been affected by impressions as to witness credibility having seen and heard the witnesses give evidence an appeal court will not interfere with the finding unless it is demonstrated to be wrong:
(a)by reference to 'incontrovertible facts' or 'uncontested testimony';[52]
(b)because the finding is 'glaringly improbable' or 'contrary to compelling inferences';[53] or
(c)because the trial judge failed to use, or palpably misused, his or her advantage as a trial judge.[54]
6.That is also the position where, having seen and heard the witnesses give evidence, the impugned factual finding is likely to have been affected by impressions as to witness reliability.[55]
7.A trial judge's advantage is not confined to impressions as to credibility or reliability having seen and heard the witnesses give evidence. The nature of the finding, and the process of reasoning for the finding, is relevant to the appropriate degree of appellate restraint. For example, where a finding concerns a matter of impression or judgment, a trial judge's comparative advantage in coming to that evaluative determination should be given proper weight.[56] Similarly, there should be appellate restraint before interfering with a trial judge's finding of secondary facts which is based on a combination of impressions from seeing and hearing the witnesses give their evidence and other inferences from primary facts[57] (one example of such a situation being the evaluative judgment involved in issues of undue influence or unconscionability).[58]
8.By contrast, in general an appeal court is in as good a position as the trial judge to decide on the proper inferences to be drawn from undisputed facts or primary facts that are established by the trial judge's findings. The appeal court will give respect and weight to the conclusion of the trial judge in deciding the proper inference to be drawn. But, if the appeal court reaches a different conclusion, it must give effect to that conclusion.[59]
9.If an appeal court concludes that the trial judge has erred in fact the appeal court must make its own findings of fact and formulate its own reasoning based on those findings.[60]
10.It is, however, inappropriate to treat an appeal as providing the opportunity for a new trial on the evidence adduced at trial constrained merely by the trial judge's unassailable factual findings. It is unacceptable to ask an appeal court to survey all the evidence and arrive at its own conclusions. An appellant must positively demonstrate error by showing that the trial judge's conclusions are wrong.[61]
[52] Fox v Percy [28]; Robinson Helicopter Company Inc v McDermott [43].
[53] Fox v Percy [29]; Robinson Helicopter Company Inc v McDermott [43]; Lee v Lee [55].
[54] Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479.
[55] Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [3]; Lee v Lee [55]; Joyce v Anderson [207].
[56] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [24], [28] ‑ [29]; Joyce v Anderson [211].
[57] Lee v Lee [55].
[58] Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [42] ‑ [43].
[59] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551; Lee v Lee [55].
[60] Fox v Percy [29]; Robinson Helicopter Company Inc v McDermott [43].
[61] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [30].
The principles of appellate restraint in relation to challenges to factual findings likely to have been affected by impressions as to witness credibility and reliability apply equally to expert witnesses and lay witnesses.[62]
Consideration and determination
[62] Child and Adolescent Health Service v Mabior [94].
Particular (a) of ground 1 requires close examination of Dr Piirto's evidence. The effect of Dr Piirto's evidence, as it was understood by the primary judge, has been summarised at [21.2], [22] and [25] above. The appellant contends that the primary judge mischaracterised or misunderstood the effect of Dr Piirto's evidence as to the respondent's capacity to work. To assess that submission is it necessary to develop what was stated by Dr Piirto in her report and what was said by Dr Piirto in her oral evidence.
Dr Piirto provided a report dated 18 June 2021[63] following an 8 June 2021 psychiatric assessment of the respondent. Dr Piirto's evidence was that, for medico-legal assessments, she allocated a two‑hour timeframe.[64] It was not suggested that the psychiatric assessment of the respondent took significantly more or less than the usual two‑hour period and at one point Dr Piirto refers to the respondent's 'two‑hour assessment'.[65] The report itself is comprehensive. It comprises four sections: (1) the psychiatric assessment; (2) Dr Piirto's conclusions; (3) Dr Piirto's answers to specific questions; and (4) enclosures. The bulk of the report is concerned with the psychiatric assessment including a detailed personal and medical history, psychiatric profile and a summary of prior medical assessments.
[63] Exhibit 22 GAB 181 - 217.
[64] ts 308.
[65] GAB 199.
Dr Piirto opined that the respondent presented with a complex psychological psychiatric and physical profile. This was said to be consistent with an Unspecified Anxiety Disorder (UAD) and limited PTSD (although it was possible that previously the respondent's profile did fulfil the criteria for PTSD[66]). The UAD was said to be 'mild to moderate' in severity and, in itself, not debilitating. In addition to these conditions the respondent presented with Somatic Symptom Disorder (SSD) experiencing physical symptoms. While pre‑existing psychological factors had been salient to the respondent's psychiatric and physical presentation - the respondent's perception and interpretation of her symptoms being significantly determined by her innate cognitive schema - Dr Piirto opined that the respondent's complex psychiatric profile had a direct and indirect relationship with the caustic soda poisoning incident.[67]
[66] Dr Piirto confirmed as much in cross‑examination: ts 322.
[67] GAB 203 - 206, 208.
Importantly, Dr Piirto confirmed that the respondent was not deliberating malingering or feigning her physical complaints.[68]
[68] GAB 212. See also ts 313, 323 - 324.
In answer to a question from the appellant's solicitors, Dr Piirto said that the respondent had made a partial recovery.[69] More generally Dr Piirto offered a 'guarded' or 'uncertain' prognosis for the respondent. Dr Piirto's opinion was that, with the passage of time, the caustic soda poisoning incident had become less relevant to the respondent's functional impairment. Future improvement would be determined by the respondent's capacity to engage effectively with psychological intervention. Dr Piirto recommended that the respondent be referred to an experienced clinical psychologist for psychological intervention including cognitive behavioural therapy, individual psychotherapy and supportive counselling.[70]
[69] GAB 210.
[70] GAB 207 - 208. In cross‑examination Dr Piirto confirmed her opinion that the time for recovery was 'uncertain' or 'very uncertain': ts 328.
We are satisfied, in the circumstances, that Dr Piirto's evidence should be preferred over that of Dr Ng. The primary judge should have found, conformably with Dr Piirto's evidence, that in terms of past loss of earning capacity the respondent had a partial capacity to engage in employment of the kind the respondent was previously engaged in. It was not the case that, as a result of the respondent's psychiatric injury, the respondent was psychologically totally incapable of working at all from the time that the respondent accepted the voluntary redundancy in mid‑January 2015.
The primary judge's conclusion to the contrary has three difficulties that necessitate this court's intervention. First, as we have explained, the primary judge mistook the effect of Dr Piirto's evidence as to the respondent's capacity to work. Second, the primary judge's conclusion overlooks the uncontested testimony that the respondent continued in her employment for some 20 months after the caustic soda poisoning incident. Third, the primary judge's conclusion fails to weigh and properly take into account an objective fact of material importance, namely, that by having and caring for young children in the period immediately prior to the trial the respondent was able to conduct an active life despite the psychiatric injury that she had suffered.
For these reasons, our review of the evidence and the primary judge's reasons satisfies us that her Honour erred in fact in concluding that the respondent was totally incapacitated for work from mid‑January 2015 until judgment because, psychologically, the respondent was incapable of working since she accepted the voluntary redundancy. Particular (a) of ground 1 must be upheld.
The substituted finding sought by the appellant
Neither party suggested that, if error was established in terms of particular (a) of ground 1, the proceedings should be remitted for rehearing to determine the amount that should be awarded for past loss of earning capacity.
There are limits to the capacity of an appellate court to assess damages. However, to the extent that this court is able to determine the amount that should have been awarded, the court should now do so. We are satisfied that the court is able to assess the damages for itself without having seen and heard the witnesses. There are, as we have previously noted, no outstanding issues of credibility or reliability that cannot be resolved by this court. Moreover, the caustic soda poisoning incident occurred more than 10 years ago. It is in the interests of the parties that the litigation be brought to a conclusion. Any gaps in the evidence are deficiencies that existed at trial and this court is in as good a position as the primary judge to decide how to assess the damages given those deficiencies.
No party suggested that this court should reconsider any aspect of the damages award other than the primary judge's allowances in relation to loss of earning capacity and interest thereon. Accordingly, while sometimes if may be necessary to reconsider a damages award in its entirety when error is established, on this occasion it suffices to reconsider the aspects of the award that can be seen to have been directly affected by the error as identified.
In assessing future loss of earning capacity the primary judge made a global award adopting the approach accepted in Bowen v Tutte and Pene v Murphy. It was not suggested that her Honour was in error in taking that approach. The present case does not readily permit this court to provide for precise calculations in relation to the respondent's past loss of earning capacity. It is, in our view, fair in the circumstances of the present case to allow for past loss of earning capacity by assessing the loss as a percentage of the respondent's pre‑injury earning capacity in the same way that the primary judge did in relation to future loss of earning capacity. This is subject to one exception. There was no dispute as to the primary judge's calculation of the allowance for the seven-day sick leave period that immediately followed the caustic soda poisoning incident. This court should not interfere with the $1,355.54 that the primary judge allowed for the seven-day period that the respondent was unavailable for work in the immediate aftermath of the poisoning incident [272] ‑ [275].
We would also adopt, as being reasonable and not being the subject of any challenge or adverse comment on appeal, the net income figure of $1,059 per week for past loss of earning capacity that was arrived at by the primary judge [277] ‑ [288].
The more difficult integer for quantification is the diminution in the respondent's earning capacity. In assessing the respondent's earning capacity in the period between mid‑January 2015 and judgment we take into account the lay and expert evidence we have previously referred to. Of this, for the reasons previously given, more weight must be given to the psychiatric evidence - in particular to the evidence of Dr Risbey and Dr Piirto. We have, for reasons already explained, accepted Dr Piirto's evidence that the respondent had the capacity to engage part‑time in her prior employment. It is also material that the respondent continued in full‑time employment for 20 months immediately after the caustic soda poisoning incident and was capable of parenting young children from September 2019 (ie from at least three years before judgment and some four years and eight months after the voluntary redundancy). Considering these matters in the broad, and doing the best we can on the available evidence as is required by the authorities, we accept the 50% past loss of earning capacity figure put forward by the appellant. This, it should be noted, is more favourable to the respondent than the 40% allowance for residual incapacity arrived at by the primary judge when assessing future loss of earning capacity.
The resultant calculations are:
1.Seven-day period that the respondent was unavailable for work - $1,355.54 (see [138] above).
2.Past loss of earning capacity from date of redundancy to date of judgment - $210,539.79[100] (ie $1,059 per week x 423 weeks x 50% less 6% contingency).
3.Past loss of superannuation from date of redundancy to date of judgment - $21,244.62[101] (ie 9.5%[102] of $1,323.33 per week[103] x 423 weeks x 50% less 6% contingency less 15%[104]).
4.Interest on past loss of earning capacity and past loss of superannuation - $57,398.81[105] (ie [$1,355.54 x 6% p.a. x 9.8 years][106] + [($210,539.79 + $21,244.62) x 3% p.a. x 8.14 years[107]]).
[100] The primary judge allowed $447,957 for this component of the award: primary reasons [290].
[101] The primary judge allowed $45,201 for this component of the award: primary reasons [291].
[102] This was the superannuation contribution figure allowed by the primary judge: primary reasons [291].
[103] This was the gross weekly income figure used by the primary judge. On appeal there was no suggestion that the figure required any revision. In the circumstances we would apply the $1,323.33 for the same reasons that we accept the net weekly income figure of $1,059.
[104] The primary judge reduced the superannuation related allowances by 15% conformably with Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192: primary reasons [291] (see also [299]). On appeal neither party challenged this reduction or suggested that it required reconsideration.
[105] The primary judge allowed $145,386.82 for this component of the award: primary reasons [292].
[106] It is convenient to provide for a separate interest calculation on the $1,355.54 figure as this interest component effectively accrues over the whole of the pre‑judgment period.
[107] The primary judge used a figure of 9.8 years. However, this was conceded to be in error in as much as the respondent conceded ground 2. The 8.14 years is taken from the appellant's written submissions and is apparently accepted by the respondent in as much as the respondent concedes ground 2.
Disposition ground 3: the award for future loss of earning capacity
The parties' submissions
The appellant challenged the primary judge's finding whereby her Honour estimated the respondent's future loss of earning capacity as being 40%. The appellant submitted that:
1.The finding was glaringly improbable and contrary to the compelling inferences available on the evidence adduced at trial. In this respect the appellant again relied heavily on the evidence of Dr Piirto.
2.The primary judge erred by considering the evidence in a piecemeal fashion rather than evaluating it as a whole and considering the united force of the evidence.
It was contended that there was no basis on which the primary judge could, on the one hand, prefer the expert medical opinion of Dr Piirto and, on the other hand, apply a permanent reduction in earning capacity on account of the respondent's psychiatric condition of nearly one half over the rest of the respondent's working life.
The respondent referred to various aspects of Dr Piirto's evidence. The respondent said that, given that evidence, the primary judge was correct to conclude that there were too many imponderables to make a precise calculation of future loss of earning capacity. The respondent submitted that, in the circumstances, an assessment based on a 40% diminution of future loss of earning capacity was appropriate and well within the range of a sound discretionary judgment.
Consideration and determination
As explained at the appeal hearing, ground 3 relies on the matters raised by particulars (a) and (b) of ground 1 but in the context of the primary judge's finding as to future loss of earning capacity.
The complaint based on particular (b) - legal inadequacy of the primary judge's reasons - may be dismissed at the outset. The primary judge's reasons for her Honour's finding as to future loss of earning capacity were legally adequate conformably with the legal adequacy of her Honour's reasons for the finding as to past loss of earning capacity. The appellant's true complaint, again, is not as to the adequacy of the primary judge's reasons - rather it is whether her Honour's determination was factually erroneous.
There is, however, considerable merit in ground 3 so far as it is based on particular (a) (ie the complaint that the primary judge erred in fact in assessing the respondent's future loss of earning capacity at 40%).
The primary judge held that:
1.The respondent would be capable of some work [257].
2.However, the respondent's capacity to return to her pre‑injury working capacity had been significantly affected [257].
3.The respondent's belief that she was incapable of returning to work, and the outward manifestations of her psychological condition, were likely to render the respondent an 'unattractive proposition' for many employers [257].
4.The respondent would benefit from psychotherapy provided that a suitably qualified and understanding practitioner was engaged [259], [268].
5.The respondent was not physically incapacitated for work despite continuing to experience physical pain and discomfort [270].
6.With the right counselling and support the respondent would be suitable for some kind of work [270]. (The primary judge later described this in terms of being satisfied that the respondent would be 'capable of doing some level of administrative work' [293].)
The finding that the respondent would be suitable for some kind of work was expressly based on the primary judge's acceptance of Dr Piirto's evidence to that effect [270]. The primary judge also accepted Dr Piirto's evidence that the respondent's presentation would improve after the litigation was completed - particularly if the respondent committed to a course of psychotherapy [294].
The primary judge concluded that there had been a 'significant diminution' in the respondent's earning capacity which 'was difficult to quantify' [270]. The primary judge estimated that loss of future loss of earning capacity at 40% [271]. It must be acknowledged that this was an evaluative judgment, no doubt informed by impressions acquired by the primary judge from her advantage as trial judge in having seen and heard the witnesses (including the respondent and the other lay witnesses) and having experienced the totality of the evidence emerge in the course of the trial. The primary judge was alive to the difficulty of the quantification exercise and expressly stated that the 40% figure was arrived at '[d]oing the best I can' [217].
While, in the circumstances, this court must give proper weight to the primary judge's view and exercise that restraint associated with the limitations of appellate review, we are comfortably satisfied that error has been demonstrated in the finding assessing the future loss of earning capacity at 40%.
The respondent was 35 years old at the time of trial and was approaching 36 years of age at the time judgment was delivered.[108] The primary judge allowed for retirement at 67.[109] Accordingly, the impugned finding is one providing for a 40% residual incapacity over the ensuing 31 years. While that conclusion is one said by the primary judge to be based on acceptance of Dr Piirto's evidence it is self-evident that her Honour's conclusion cannot be reconciled with Dr Piirto's evidence. The substance of Dr Piirto's evidence, as has been seen, was that the respondent had an initial part‑time capacity to engage in her pre‑existing employment with that partial impairment subsisting for three to six months as the respondent increased her hours from part‑time to full‑time while the respondent engaged in appropriate concurrent psychological intervention. Having accepted Dr Piirto's evidence that, with the right counselling and support the respondent would be capable of doing some level of administrative work, it is inexplicable - given Dr Piirto's evidence as a whole - that the primary judge found that the respondent had a 40% future loss of earning capacity that would subsist for the 31‑year remaining duration of the respondent's working life.
[108] The respondent's date of birth is recorded at ts 120.
[109] Primary reasons [297].
The primary judge's conclusion would be understandable if her Honour rejected Dr Piirto's evidence. But, rather than rejecting Dr Piirto's evidence, the primary judge expressly accepted related aspects of Dr Piirto's evidence. The primary judge expressly accepted Dr Piirto's evidence that the respondent would benefit from psychotherapy and that the respondent's condition was likely to improve after the litigation was over, particularly if the respondent committed to psychotherapy.
In coming to the conclusion that the respondent had a 40% future loss of earning capacity - one that would subsist for the remaining 31 years of the respondent's working life - the primary judge did not recite Dr Piirto's evidence as to the likely timeframe within which the respondent might return to full capacity. Nor did her Honour consider the other objective facts of importance that we have previously referred to: first, that the respondent was able to continue full‑time work for some 20 months after the caustic soda poisoning incident; second, that the respondent had resumed aspects of an active life in as much as the respondent had given birth to two daughters who she had been parenting over the three‑year period immediately prior to trial. We are satisfied, in the circumstances, that the primary judge failed to use, or palpably misused, her advantage as a trial judge. Moreover, in our opinion, the finding is glaringly improbable. We will address the correct finding as to residual incapacity - one that, in our view, reveals the error in the primary judge's conclusion, in the next section of these reasons.
While the appellant advanced its challenge to the finding in terms of factual error the respondent sought to answer this aspect of ground 3 by arguing that the 40% assessment was within the range of a sound discretionary judgment.
There would be force in that argument if it could be concluded that the respondent had suffered a residual incapacity which would subsist for the remainder of her working life. The primary judge did not make an express finding to that effect. Such a finding is, however, implicit in her Honour applying the 40% residual incapacity to the respondent's assessed likely future earning for the ensuing 31 years. But even Dr Ng accepted the possibility of psychiatric improvement with treatment[110] and the passage of further time.[111] Rather than committing to an ongoing residual incapacity for the remainder of the respondent's working life Dr Ng stated that the prognosis for psychiatric improvement going forward was 'guarded'.[112] By contrast, when engaged as the respondent's treating psychiatrist, Dr Risbey expressed the hope that continuing treatment would lead to full recovery[113] and said that, after getting physical symptoms under control, a committed approach to psychotherapy would lead to a good prognosis in the long‑term.[114] As previously mentioned, Dr Piirto anticipated that the respondent was capable of making a recovery permitting her to engage in full‑time employment within three to six months provided that the respondent engaged in appropriate concurrent psychotherapy.
[110] GAB 128.
[111] GAB 127.
[112] GAB 137.
[113] GAB 112.
[114] GAB 113.
Only Dr Finch gave unequivocal evidence that the respondent was unfit to work until retirement age. That evidence was properly rejected by the primary judge for reasons that we agree with.
In the circumstances, and as we will develop further below, we do not accept on the balance of probabilities that the respondent's psychiatric condition was such that she had a residual incapacity affecting her future employment which would subsist for the remainder of her working life. Once that point is reached there is no merit in the respondent's argument that the primary judge's 40% assessment was within the range of a sound discretionary judgment. The likelihood, on the evidence, that the respondent was capable of achieving a full recovery in the medium to long term (and certainly within a fraction of the 31 years that the primary judge allowed for in calculating the award) necessarily means that the primary judge's allowance of $350,000 for future loss of earning capacity (including loss of future superannuation) amounted to a wholly erroneous estimate of the damage suffered.
The substituted finding sought by the appellant
The appellant sought a substituted finding to the effect that the respondent should be assessed as having a 50% future loss of earning capacity for the limited period of six months post-judgment. It is evident, in this respect, that the appellant accepted the necessity of this court adopting a global approach. The primary judge adopted a global approach [295], [297], [300]. The respondent accepted that her Honour was correct to do so.[115] We too would adopt a global approach insofar as there are too many imponderables to make a precise calculation of future loss of earning capacity.
[115] Respondent's submissions par 29 WAB 49.
The 50% figure is consistent with the assessment we have made for the purposes of ground 1. We would adopt it in this context for the same reasons as we have accepted the 50% assessment in the context of ground 1. It is, in any event, logical that the extent of the reduction in the respondent's earning capacity carries over from pre‑judgment to post-judgment until the effects of treatment in the form of psychological intervention would be likely to result in the respondent's further recovery. So understood the real issue is not the assessment of the 50% figure. Rather, it is the length of time over which the respondent will recover at that 50% figure.
The evidence does not suggest that recovery will be instantaneous, ie at one point there is a 50% incapacity and the next day there is none. But nor does the evidence suggest a linear progression towards full recovery. Logically progress towards full recovery will be gradual, may at times see rapid improvement but at other times may plateau, and on occasions there may be set backs. Remembering, however, that the respondent has proven a loss, and the issue is one of quantification, we would provide for the full 50% incapacity figure until such time as it is likely that there should be no or no material residual incapacity. The appellant, as wrongdoer, ought not be heard to complain of this approach where it has not adduced evidence that allows the court to take a more nuanced assessment. In any event the continued application of the 50% figure for a period as now assessed is consistent with the appellant's approach in the substituted finding that it contended for.
The appellant contended that six months would suffice. The six months is consistent with Dr Piirto's evidence. In Dr Piirto's report she opined that the respondent could increase to full‑time work over six months[116] or three to six months.[117] However, as counsel for the respondent highlighted, Dr Piirto expressed a degree of uncertainty in her oral evidence. There was general uncertainty as to the respondent's prognosis.[118] There was a more specific uncertainty as to the respondent's motivation to engage and form a relationship with a psychotherapist. This included the difficulty of finding the right therapist.[119]
[116] GAB 210.
[117] GAB 211.
[118] ts 328. See also GAB 207 -208.
[119] ts 327 - 328.
This, to our mind, necessitates allowing for a period of more than six months. There should, in any case, be some allowance for the respondent to build up her resilience on the workplace and to take account of the circumstance that the respondent's absence from the workplace, as a result of the injury caused by the appellant, is likely to create some difficulty in re-entering the workplace in the first place (especially as initially the respondent is likely to be limited to part‑time employment). In adopting a global approach we would allow a period of three years having regard to the matters we have referred to as well as the evidence of Dr Piirto and, to a lesser extent, the evidence of Dr Risbey to the effect that a committed approach to psychotherapy would lead to a good prognosis in the long‑term.
The three years exceeds Dr Piirto's estimate of three to six months by a fair margin. The difference is explained by the additional considerations we have had regard to. We have also taken into account the primary judge's finding that the respondent requires regular psychotherapy in the short to medium term [308]. This, in our view, supports the conclusion of three years that we have arrived at. The period for which there is to be an allowance for psychotherapy provides an indication of the sort of period during which it may be expected that there will be a degree of continued incapacity. To the extent that the respondent might consider that the three years is relatively short given the time that has passed since the caustic soda poisoning incident it should be recalled that the respondent is to be compensated on the basis of the 50% residual incapacity figure for the whole of the period notwithstanding the likelihood of improvement over the duration of the period.
Separately, to the extent that the primary judge only considered that psychotherapy was required for the short to medium term, it emphasises the difficulty with her Honour's implicit finding that the respondent had sustained a psychiatric injury that had resulted in a 40% residual incapacity that would subsist for the 31 years that remained of the respondent's working life.
The primary judge determined a global amount having first conducted some indicative calculations and then rounding those figures to come to a total of $350,000 [297] ‑ [300]. We will take a similar approach. The two components of the assessment for future loss of earning capacity comprise:
1.Future loss of earning capacity - $77,645.88 (ie $1,059 per week x 156 weeks x 50% less 6% contingency).
2.Future loss of superannuation - $8,247.25 (ie 10%[120] of $1,323.33 per week x 156 weeks x 50% less 6% contingency less 15%).
[120] This was the superannuation contribution figure allowed by the primary judge: primary reasons [299].
Except where indicated the calculations apply the figures adopted for the purpose of calculating the past loss of earning capacity. The primary judge's calculations applied a multiplier to the weekly amount based on the present value of $1 per week for 31 years at a 6% rate of compound interest. That was appropriate given the 31‑year period adopted by the primary judge. However, we have provided for a three‑year period only. In the circumstances, and since we have adopted a global approach where there ought to be some give and take, we are satisfied that the assessment need not provide for a reduction through application of such a present value discount.
Having regard to these calculations, and adopting a global approach, we would allow $90,000 for future loss of earning capacity including loss of future superannuation. In rounding upwards in favour of the respondent we have sought, again, to ameliorate for the uncertainty in the likely timeframe for recovery.
Conclusion and orders
The parties will need to be heard on the precise terms of the orders to give effect to these reasons. At that time the parties may address the court on any inadvertent arithmetical errors that have arisen in our calculations. Subject to hearing from the parties on these matters, the orders required will be to the following effect:
1.The appeal is allowed.
2.Paragraph 1 of the order of the District Court of Western Australia made 24 February 2023 in action CIV/1502/2016 is varied by deleting 'the sum of $1,126,045.39' and substituting:
'the sum of $516,683.79'[121]
[121] This is based on the $1,126,045.39 being reduced by a total of $609,361.60, the $609,361.60 reduction being comprised of:
·$237,417.21 as to past loss of earning capacity from date of redundancy to date of judgment ($447,957 allowed by the primary judge versus $210,539.79 allowed on appeal);
·$23,956.38 as to past loss of superannuation from date of redundancy to date of judgment ($45,201 allowed by the primary judge versus $21,244.62 allowed on appeal);
·$87,988.01 as to interest on past loss of earning capacity and past loss of superannuation ($145,386.82 allowed by the primary judge versus $57,398.81 allowed on appeal);
·$260,000 as to future loss of earning capacity ($350,000 allowed by the primary judge versus $90,000 allowed on appeal).
The parties should be heard on the costs of the appeal and any other necessary orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Vaughan
5 DECEMBER 2024
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