Utting v Clark - [2017] ACTCA 22

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Utting v Clark

Details

AGLC: Utting v Clark [2017] ACTCA 22
Case: [2017] ACTCA 22
Decision Date: 15 May 2017

CaseChat Overview and Summary

The Full Federal Court heard an appeal in *Utting v Clark* concerning the assessment of damages for a future pain condition. The appellant, Mr. Utting, had suffered an injury and was awarded damages by the trial judge for a period of 12 months, based on the likelihood that his pain condition would resolve within that time. Mr. Utting argued that the damages should have been assessed for his entire working life, with a discount applied to account for the chance of an earlier recovery.

The central legal issue before the Full Federal Court was whether the trial judge had erred in awarding damages for a fixed period of 12 months, rather than assessing them for the plaintiff's entire working life and then discounting for the possibility of early recovery. This involved determining the correct approach to assessing damages for a future condition where there is uncertainty about its duration.

The Full Federal Court dismissed the appeal, upholding the trial judge's assessment. The Court reasoned that the trial judge had properly considered the evidence regarding the likely duration of the pain condition. The judge had found that there was a significant chance of recovery within 12 months, and that the condition was unlikely to persist for the plaintiff's entire working life. The Court affirmed that where there is a chance of recovery, damages can be awarded for a fixed period, provided that this assessment reflects the probabilities established by the evidence. The principle applied was that damages should be awarded to compensate for the loss that is likely to occur, taking into account the probabilities of future events.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed: see [47]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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