Utting v Clark
[2017] ACTCA 22
•15 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Utting v Clark |
Citation: | [2017] ACTCA 22 |
Hearing Date(s): | 3 May 2017 |
DecisionDate: | 15 May 2017 |
Before: | Burns, Mossop and Collier JJ |
Decision: | Appeal dismissed: see [47] |
Catchwords: | DAMAGES – General principles – assessment of damages in relation to future events – likely duration of pain condition – whether court erred in awarding damages for fixed period when chance that pain condition would continue – whether damages should have been assessed for whole of working life and then discounted for chance of early recovery |
Cases Cited: | ACT v Crowley [2012] ACTCA 52; 7 ACTLR 142 Carmen Utting v Ben Clarke & Insurance Australia Limited T/A NRMA Insurance [2016] ACTSC 168 Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Singh v Cooper [2016] ACTCA 55 |
Parties: | Carmen Utting (Plaintiff) Ben Clark (First Defendant) Insurance Australia Limited t/a NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr R Crowe SC (Appellant) Mr K Rewell SC, Mr D Crowe (Respondent) |
| Solicitors United Legal (Plaintiff) HWL Ebsworth (Defendant) | |
File Number(s): | ACTCA 37 of 2017 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 14 July 2016 Case Title: Carmen Utting v Ben Clarke & Insurance Australia Limited T/A NRMA Insurance Citation: [2016] ACTSC 168 |
THE COURT:
Introduction
The appellant suffered soft-tissue injuries to her back and neck in a motor vehicle accident on 19 May 2013. The accident involved a rear-end collision. Proceedings were commenced in the Supreme Court. Liability was admitted. The proceedings were heard by Elkaim J on 11 and 12 July 2016 and his Honour gave judgment in favour of the plaintiff on 14 July 2016: Carmen Utting v Ben Clarke & Insurance Australia Limited T/A NRMA Insurance [2016] ACTSC 168. His Honour assessed damages in the sum of $220,610.68.
The appellant has appealed against that judgment. The contention of the appellant was that his Honour had erred in assessing damages on the basis that she would make a recovery from her injuries over a period of about 10 years. Instead, the appellant contended that his Honour should have assessed damages on the basis that her injuries and disabilities were likely to be life-long subject to a discount to address the chance of an earlier recovery.
The present appeal is an appeal by way of rehearing. The Court is obliged to conduct a real review of the trial and give the judgment which in its opinion ought to have been given at first instance: ACT v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [5]. However the Court cannot simply substitute its opinion for the judge at first instance. Rather, error must be demonstrated: Singh v Cooper [2016] ACTCA 55 at [44].
Judgment below
One of the principal issues at trial was how long the injuries and disabilities causally related to the accident would last. The imaging evidence did not disclose any abnormalities in the appellant’s spine. However, the appellant continued to suffer from pain.
The condition from which the appellant suffered was usefully summarised by senior counsel for the appellant upon the hearing of the appeal as:
a central sensitisation disorder [in which] a physical injury sets in train a neural disorder in the nerve pathways that go from the site of the injury to the brain and back and that is what is perpetuated and becomes a pain disorder which is prolonged and different from what might well have just been a strain injury in the first place.
In order to reach conclusions as to how long the appellant’s condition would last his Honour was required to undertake a careful assessment of the medical evidence. At trial the appellant relied upon expert reports from:
(a)Dr David Champion, a physician;
(b)Dr WGD Patrick, a surgeon;
(c)Dr Leon Le Leu, an occupational physician.
The respondent relied upon expert reports from:
(a)Dr Geoffrey Stubbs, an orthopaedic surgeon;
(b)Dr Uthum Dias, an occupational physician;
(c)Dr Doron Samuell, a psychiatrist.
Also in evidence were two letters from Dr Geoffrey Speldewinde a consultant in rehabilitation, pain and musculoskeletal medicine.
For reasons set out in his judgment (at [54], [56] [65]), His Honour did not accept the evidence of Dr Dias that the plaintiff’s current injury was not attributable to the accident. Neither side referred to the report of Dr Samuell in their submissions before his Honour and his Honour did not “see a great deal of relevance” in his report. His Honour undertook a detailed and careful consideration of the evidence of the remaining doctors, preferring the evidence of doctors Champion and Patrick to that of Dr Stubbs. His Honour concluded that the appellant’s spinal problems were a product of the motor vehicle accident, stating:
I am of the view that although the plaintiff’s spinal injuries are of a soft tissue nature, they are real, they were caused by the accident and will continue to affect the plaintiff for some years into the future.
At [68]-[70] his Honour dealt with the issue of how long the appellant would continue to suffer from her injuries as follows:
68. An area of particular contention was the expected time during which the plaintiff is likely to continue to suffer from her injuries. The plaintiff essentially said her problems should be regarded as life-long. The defendants suggested about 5 years. The importance of the issue is reflected in the effect it has on damages. For example, there is a large difference between future economic loss for 5 years and for 31 years (to age 65).
69. While I generally accept the plaintiff’s medical opinion, I do not think it supports the plaintiff’s claim. Dr Champion foresaw improvement with the assistance of rehabilitation. He suggested domestic assistance for at least 12 months. Dr Patrick’s views are similar. I have already referred to Dr Le Leu’s statement regarding problems for the “foreseeable future”. Notably, Dr Speldewinde referred to “several years” of recovery.
70. I think the plaintiff should be provided with funds for rehabilitation but this should be on the basis that it is likely to be successful and she will recover over a period of about 10 years.
Submissions on appeal
The appellant submitted that the conclusion reached in paragraph 70 was incorrect and that his Honour ought to have adopted as a starting point for his assessment of damages the continuation of injuries for the whole of the appellant’s working life, subject to a discount to take account of the possibility that she might recover earlier.
Senior counsel for the appellant submitted that having accepted the opinion of doctors Champion and Patrick (and perhaps to a lesser extent Dr Le Leu) it was not open to his Honour to conclude that the appellant would recover within 10 years. Further, senior counsel for the appellant submitted the approach adopted by his Honour was inconsistent with the decision of the High Court in Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 because his Honour’s conclusion took no account of the significant risk of no recovery within the 10-year period that he identified.
In Malec the judgments of the High Court recognised that in relation to future events relevant to the assessment of damages a court must make its assessment in terms of the degree of probability of those events occurring. Unless the chance of a future event is so low as to be regarded as speculative or so high as to be certain then it is the chance that must be assessed. That contrasts with the approach to past events where events determined to be more probable than not are treated as certainties. As a consequence, in relation to future events a court must assess the degree of probability that an event might occur and adjust its award of damages to reflect that degree of probability. While both judgments of the Court endorsed the same approach, some caution was expressed in the judgment of Brennan and Dawson JJ about assessing damages by reference to precise percentages because “[d]amages founded on hypothetical evaluations defy precise calculation”.
Counsel for the appellant submitted that damages should be reassessed on the basis that the injuries and disabilities would continue until retirement age with a discount of 25% to take account of both vicissitudes of life and the possibility of an early recovery. He accepted however that a discount of up to 50% would be unimpeachable. Even with a discount of 50%, assessment of damages using this methodology would result in a significant increase in the overall award of damages.
Counsel for the respondent submitted that in the light of the evidence it was clearly open to his Honour to reach the conclusion that he did and that his Honour’s reasons at [70] should be understood as appropriately reflecting all of the possibilities that Malec required to take into account.
Medical evidence
The appellant was 31 at the time of the accident and 34 at the time of the trial. The appellant’s contentions therefore commence from the proposition that his Honour should have adopted as his starting point an award of damages for 33 years until the age of 67.
In order to assess the appellant’s contentions it is necessary to have regard to the medical evidence relevant to the question of how long the appellant’s injuries and disabilities would last. The evidence of Dr Speldewinde, Dr Champion, Dr Patrick and Dr Le Leu touched upon the likely duration of the appellant’s condition
The evidence of Dr Speldewinde.
Dr Speldewinde was one of the appellant’s treating doctors. He practised as part of a multidisciplinary pain clinic trading as Capital Rehabilitation. Two letters dated 13 August 2013 and 10 January 2014 written by Dr Speldewinde to the appellant’s general practitioner were admitted into evidence.
Dr Speldewinde’s first letter followed a consultation with the appellant. He diagnosed:
Subacute lumbar back strain not related to disc ligament injury associated with.
Stress issues, fears and uncertainties.
In his letter of 10 January 2014 he reported some improvement in the appellant’s back pain. He suggested, in addition to massage therapy, a general and a spine-specific fitness program. He said:
Through this means I am trying to optimise her spinal function, her further recovery, which is likely to continue steadily over the next several years, and to facilitate her participation in undertaking management and MYOB training courses this year. [Emphasis added]
No expert report from Dr Speldewinde was in evidence and he was not called to give evidence.
There was evidence that the plaintiff had been unable to continue with massage and physiotherapy at Capital Rehabilitation because the second respondent had refused to pay for it and she could not otherwise afford it. The second respondent also refused to fund gym membership as suggested by Dr Speldewinde.
The evidence of Dr Champion
Dr David Champion prepared three expert reports. The first, dated 28 October 2014, was based upon an examination of the appellant. The subsequent reports dated 12 April 2015 and 6 July 2016 provided commentary in response to expert medical reports served on behalf of the respondent.
The central diagnosis made by Dr Champion was of “chronic multilevel cervical spine pain disorder of the whiplash associated disorder category with prominent deep somatic referred pain to the upper back and shoulder regions and in her arms…” He also diagnosed a minor thoracic spinal pain disorder, a chronic lumbosacral spinal pain syndrome, headaches caused by the cervical spinal injury as well as psychosocial consequences.
He recommended assessment by an occupational therapist, returning to Dr Speldewinde and his pain management team as well as an assessment for depression. In relation to how long the appellant’s condition would continue the end of his report provided:
There is important requirement for domestic assistance. This is best assessed by an occupational therapist in a home visit. For at least 12 months I expect that she would need gardening assistance probably 2 hours a month and domestic assistance ideally 2 hours twice a week, or whatever is advised by the occupational therapist.
While there is scope for improvement, it will I expect, only be partial and it will be most difficult for Miss Utting to work for a normal life work span. It wouldn’t take much of a setback to put her out of work altogether. She will remain vulnerable in the long term to exacerbation on minor or moderate mechanical provocation.
Dr Champion’s subsequent two reports did not provide any further assessment of how long her condition would last. His review of the reports of Dr Dias and Dr Stubbs did not cause him to alter his opinion.
The evidence of Dr Patrick
Dr WGD Patrick prepared a report dated 3 August 2015 following consultations with the appellant on 3 October 2014 and 27 July 2015. Dr Patrick was described as a “General & Vascular Surgeon, Trauma Surgeon, MedicoLegal Specialist”. His curriculum vitae was not in evidence. In relation to the duration of symptoms his report provided as follows:
The prognosis is for some degree of ongoing residual symptoms, continuing into the future.
I do believe that as a consequence of her accident related injuries that there has been and will continue to be some loss of earning capacity.
Notwithstanding that she is living alone with young daughter in rented accommodation in Latham ACT, I believe it is very reasonable that as a consequence of her accident-related injuries that she has been able to work the reduced hours at the medical and dental Centre where she had been working as 2IC, and I believe it is appropriate that she has made the change to a somewhat more sympathetic work environment in the physiotherapy business working just the 21 hours per week with no weekend work.
As a consequence of her accident-related injuries I do believe that into the long-term Carmen Utting may well have to retire somewhat earlier than would otherwise have been [the] case, and I believe it is reasonable to suggest that her effective working life (she is now aged 34) is probably likely to be shortened by as many as three years (having to retire at age 64 as opposed to age 67).
Also, allowance should be made for possibly three working days off per year to accommodate for periods of exacerbation/flare up of symptoms.
Dr Patrick did not give oral evidence.
It is not clear, having regard to the description of his specialisation and the absence of a curriculum vitae, what particular expertise Dr Patrick had in relation to pain conditions such as that suffered by the appellant.
In so far as he expressed a view about the possibility that she may have to retire earlier than might otherwise have been expected, no reasoning is disclosed which would permit an assessment of this opinion. It is not at all clear how, on the basis of his specialised knowledge and experience, he could make a prediction that in 30 years’ time the appellant might be required to retire earlier than would otherwise have been the case. It is perhaps for that reason that the opinion is hedged about with qualifying terms “I do believe”, “may well have to”, “I believe it is reasonable to suggest” and “shortened by as many as”. For these reasons this part of the opinion could be given little weight.
The doctor did not directly express an opinion that the effect of the accident would be that the appellant would be unable to work more than 21 hours until the age of retirement.
Some light is shed on his opinion by what he said in relation to domestic assistance:
Also, I believe there has been and continues to be a requirement for domestic/care assistance for help with the heavier tasks in and around the home and I believe that there has been the need for at least seven hours such assistance per week during the initial six-months subsequent to this accident, and after that time just 1-2 hours such assistance per week continuing into the longer term.
This is consistent with an opinion that her symptoms might continue “into the longer term” but provides no express support for the proposition that the appellant’s condition will continue until the age of retirement.
The evidence of Dr Le Leu.
Dr Leon Le Leu prepared two reports and gave oral evidence. The second report that he prepared simply corrected one portion of his earlier report which was considered to be confusing. Thus his second report reflected his opinion. The relevant part of his report was as follows:
6. The likely prognosis for our client’s accident caused injuries and disabilities.
She has had her current range of symptoms for 2 ½ years so it is more probable than not that her injuries and disabilities will continue for the foreseeable future.
7. Your opinion as to whether or not our client will suffer in any way a loss of earning capacity as a result of the accident-related condition.
She can continue to do work of a light sedentary and semi-sedentary nature with breaks, but is currently only able to work 23 hours a week on average. On the basis that her condition is showing no signs of improvement in that her injuries and disabilities will continue for the foreseeable future it is more probable than not that she will suffer a loss of earning capacity and this is already present in that she works just a little over half the hours she worked before the subject accident
8. Whether or not there is any prospect of our client having to retire early or reduce the hours she is currently working as a medical receptionist.
This is difficult to be absolutely certain but it is more probable than not that her symptoms will remain at about the same level for the foreseeable future rather than deteriorate. Hence, her capacity to work should not change. (Italics added)
In answer to a question about her requirement for domestic assistance he said:
She has difficulty with a range of household duties as outlined in the “current activities section” of the report. I estimate that she would need two hours of domestic assistance for probably the next five years. The situation could be reviewed by an occupational therapist at the end of that period.
In cross-examination Dr Le Leu was asked about the references in his report to “the foreseeable future”:
You’ve said in your report at page 13 that it is more probable than not that her disabilities will continue for the foreseeable future?---Yes.
What do you mean by foreseeable future?---Well, I guess it doesn’t mean infinitely. It means the extent to which the future can be foreseen. I suppose usually I’d be thinking in terms of the next five to 10 years, probably closer to five.
Of course at page 14 of your report - if I could ask you to turn to page 14?---Yes.
You’ve recommended some domestic assistance?---Yes.
For probably the next five years?---Yes.
Is that recommendation made on the basis that that’s when you anticipate that she will continue to have some problems?---Yes. I guess that was the time over which if - she would need to be re-assessed at the end of that time both in terms of symptoms and signs, and in terms of her requirement for ongoing domestic help.
…
MS ALLEN: In your experience in the absence of evidence of structural damage to the spine, would you expect a gradual settling of symptoms over time?---Well, it depends on what part of the spine we’re talking about. Say if we are talking about the cervical spine or the thoracic spine, in about 40% of cases you do get complete resolution. In an other 5% or so - no. I should say in 42% of cases you get ongoing symptoms and I guess that’s about the only possible consequences, either symptoms or no symptoms, so that doesn’t quite add up to 100%.
No?---But you certainly can get ongoing symptoms in the absence of any structural change which can be detected with the current imaging modalities.
I take it that in your practice you have seen a number of patients who in the past have experienced injuries of this type, but have told you that they had had a complete recovery over a period of time?---Yes, I’ve seen many such people.
This issue was picked up in re-examination by some leading questions from senior counsel who then appeared for the appellant:
Doctor, you were asked questions about the - page 13 of each of your reports, answer 6, where you said, “It is more probable than not that her injuries and disabilities will continue for the foreseeable future,” and you were asked to some questions about that and you said, “Five to 10 years, anticipate five years.” Did you mean by that that there would be recovery in that period or that it would require reassessment at that time?---I didn’t indicate there would be recovery in that time but it is vaguely possible there could be, so reassessment would be reasonable at the end of five years.
But it’s vaguely possible it could be?---It’s far more probable than not that she would still have the same range of symptoms, yes.
At that point counsel was stopped by his Honour because he was cross-examining his own witness. His Honour then asked the doctor some questions as follows:
HIS HONOUR: … Doctor, can we just go back to number 6 if you don’t mind?---Yes; yes.
You say there, “It is more probable than not that her injuries and disabilities will continue for the foreseeable future”?---Yes.
Ms Allen asked you about that and you said, “Five to 10 years, more likely five.” Correct? That’s what you said?---Right,. Well, yes.
I mean, you can change it if you like. I just want to understand what you had said before?---Yes.
If the injuries will continue for, say, five years, or you can make it seven if you like, does that not suggest that they will not continue in the eighth year or the sixth year or whatever it is?---If the injuries continue for five years, it seems far more likely that they are going to continue for the next five or even 10 years. By that time a pattern, a clear pattern, has been established. At the time I saw her, I think it was two and a half years after the accident, she was outside the normal recovery period for her condition, that’s what I thought, particularly in her situation, to have ongoing symptoms and it’s very difficult to predict how long they are going to last but most often they just keep on going on and on.
At the end of the re-examination senior counsel for the appellant asked some further questions:
MR ROBERTS: Doctor, in answer to one of the questions my learned friend asked you said that 42 per cent of people who suffer these types of injuries, I think you said - - -?---Yes.
- - - have ongoing symptoms?---Yes.
Does that mean obviously some, a significant number recover?---Yes; yes, it does.
If symptoms have continued for a period of, say, three or four years, what does that say in terms of the prognosis?---Well, unfortunately there aren’t any figures, readily available figures, out of that distance but I think by that time you can say there’s sort of a pattern that has developed and there’s no indication of recovery, so we can expect the symptoms to go on for a lot longer.
Consideration and conclusion
The state of the evidence about how long the plaintiff’s condition would continue was unsatisfactory. No doctor expressly said that the condition would continue for the rest of the appellant’s working life. The closest that the evidence came to identifying symptoms over the whole of the plaintiff’s working life was Dr Champion’s opinion, which recognised scope for improvement, the possibility of setbacks and vulnerability, in the long term, to exacerbation. Dr Patrick’s evidence was limited, made no express estimate of how long the condition would last and made statements about early retirement the basis for which were not clear. Dr Le Leu’s evidence had the benefit that it was given orally and hence its parameters could be explored. Initially he identified that the future was only foreseeable for “five to 10 years, probably closer to five”. Subsequently his answers given to leading questions in re-examination suggested that was the period after which some reassessment would be necessary. His Honour, with the benefit of having observed Dr Le Leu give evidence, observed that the answers given in re-examination involved Dr Le Leu “benignly attempting to ameliorate the effect of his earlier answer”. He did give some evidence with an apparent statistical basis that 42% of people with a pain condition such as that suffered by the appellant would fully recover. However having regard to the various figures of 42%, 5% and 40% referred to in his evidence as set out above, it is difficult to work out the ultimate effect of his evidence. In any event even those figures do not involve any assessment of the period over which such a recovery would occur.
Dr Le Leu did refer to the establishment of a pattern in the plaintiff’s condition saying that such a pattern keeps “going on and on” but recognising that it was “very difficult to predict how long they are going to last”.
In those circumstances, accepting the necessity to assess possibilities required by Malec, it was necessary to take into account the possibility that the appellant might recover within a relatively short period of, say, under five years, or a longer period up to and including the possibility that she might never recover. Having regard to the imprecision in the evidence about the natural history of the pain condition of the type suffered by the appellant and the absence of clear opinion evidence as to the prognosis in her case, the assessment of the likelihood of the various scenarios was such that any precision in the calculations based upon percentage-chances would have been spurious. It was clearly a case where “[d]amages founded on hypothetical evaluations defy precise calculation”: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 640.
If his Honour’s reasons are to be understood as involving a positive finding that recovery would occur over a period of 10 years and that there was no chance in the Malec sense of the appellant’s condition continuing beyond that period and no chance of it resolving within a lesser period then that approach would involve an error. However, his Honour’s reasons, although expressed as including a finding that “she will recover over a period of 10 years”, should be understood as involving a finding that the period of 10 years provides an appropriate basis upon which to assess damages taking into account all of the possibilities.
If, on the contrary, the language used by his Honour was not susceptible to such an interpretation then a positive finding that the appellant would recover over a period of 10 years would not be supported by the evidence. However, even if that was the case it would not have resulted in the appeal being successful because the appeal is against the orders made by his Honour, not the reasons for those orders. Having regard to the evidence it would be appropriate to award damages on the basis of a buffer the equivalent to the damages that would be suffered if the appellant’s condition lasted for a period of 10 more years and no longer. That approach would appropriately take account of the uncertainties as to the period for which the appellant’s condition would continue and make explicit that the only way to realistically assess damages for the variety of possible outcomes was by way of a buffer.
Because of the limited and uncertain nature of the evidence it was not a case where it was appropriate to adopt as a starting point disability continuing until retirement age and then subject that figure to a discount to take account of the prospect of early recovery. Many contested assessments of damages turn upon whether to adopt that approach or to award damages for a limited period. Plaintiffs will often contend for the former, defendants for the latter. Which approach should be adopted is very sensitive to the evidence in any particular case. However because of the limitations on the evidence, this case is one in which it is clear that his Honour did not err in awarding damages calculated by reference to a period of 10 years.
As a consequence, the appeal must be dismissed.
Orders
The orders of the Court are:
1. Appeal dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
3. Order 2 does not take effect for a period of 14 days and does not take effect until further order of the Court if submissions are filed by a party in accordance with this order. Any party seeking an order different to order 2 shall file and serve written submissions limited to not more than three pages and any evidence in relation to costs within 14 days. Each other party may file and serve written submissions in reply limited to not more than three pages and any evidence in reply within 21 days.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
4
0