Attard v Hore & Anor [2003] QCA 536

SUPREME COURT OF QUEENSLAND CITATION: Attard v Hore & Anor [2003] QCA 536 PARTIES: LORETTA KAY ATTARD (plaintiff/respondent) v BENJAMIN PETER HORE (first defendant) QBE INSURANCE LIMITED (second defendant/appellant) FILE NO/S: Appeal No 3813 of 2003 SC No 30 of 2002 DIVISION: Court of Appeal PROCEEDING: Personal Injury-Quantum only ORIGINATING COURT: Supreme Court at Mackay DELIVERED ON: 5 December 2003 DELIVERED AT: Brisbane HEARING DATE: 21 November 2003 JUDGES: de Jersey CJ, McPherson JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. Appeal dismissed 2. The appellant pay the respondent’s costs of the appeal to be assessed CATCHWORDS: DAMAGES – MEASURE OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where appellant appeals against the assessment of damages made by primary judge – whether the assessment of damages was manifestly excessive – whether an inadequate discount was applied in the assessment of damages for past economic loss – no proper ground for interfering with the award – appeal dismissed COUNSEL: K N Wilson SC for the appellant D V C McMeekin SC for the respondent SOLICITORS: McInnes Wilson Lawyers for the appellant Macrossan & Amiet for the respondent [1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Mullins J. I agree with the orders proposed by her Honour, and her reasons. -- 1 of 10 -- 2 [2] McPHERSON JA: For the reasons given by Mullins J, with which I agree, this appeal should be dismissed with costs. [3] MULLINS J: The respondent who was the plaintiff at trial obtained a judgment against the appellant which was the second defendant at the trial in the sum of $87,522.38. The appellant was ordered to pay the plaintiff’s costs of the action assessed on an indemnity basis, but limited to the costs which would have been recoverable if the action had been brought in the District Court and to exclude the respondent’s costs of the application to transfer the action from the District Court to the Supreme Court. [4] The respondent’s claim was for damages for personal injuries sustained in a motor vehicle accident which occurred on 4 August 1998. Liability for the accident was apportioned by the learned trial judge as to 25% to the first defendant and 75% to the respondent. There is no challenge to the findings on liability. [5] By its notice of appeal, the appellant appeals against that part of the judgment in which the learned trial judge assessed the respondent’s damages in the sum of $350,089.52 and the order made as to costs. At the hearing of the appeal, the appellant abandoned the appeal against the costs order, except to the extent that any success on the appeal against the assessment may affect the costs order made at trial. Findings of the trial judge [6] The respondent was born in June 1968. She was therefore 30 years old at the date of accident and 34 years old when the trial took place on 25 and 26 March 2003. The respondent completed a year 10 education in 1983. She then worked in a book exchange and as a shop assistant. She married in 1986. She left work to look after her husband’s child of a previous relationship. When that child commenced pre- school she commenced to look for work. She worked as a carer both at a nursing home and privately and then worked as a day care mother. She worked as a shop assistant at a video store for approximately 18 months. The respondent and her husband separated in 1991 and the respondent moved to New South Wales where she commenced a relationship with Mr Ashford. She undertook a course from which she obtained a certificate as a carer for the aged. [7] At about this time the respondent fell pregnant and gave birth to a child on 1 December 1993, but the child survived only 1 day. The plaintiff then obtained employment at a nursing home on a casual basis for 3 months and then on a permanent basis until approximately 1 month prior to the birth of her son on 30 December 1994. The plaintiff returned to work after the birth of this child, but decided after a couple months to stay at home, so that she could look after the child. [8] The respondent and Mr Ashford moved back to Queensland in late 1995 and their second child was born on 12 May 1996. Mr Ashford had been employed as a truck driver but had lost his licence and was unable to work. [9] Between 1995 and early 1998 the respondent had not worked in paid employment, but when the 2 children commenced to attend a kindergarten in early 1998, the respondent took some steps to look for work, but did not receive any response to her applications to the nursing homes and the other places to which she applied had no positions. Although there was some evidence from a witness Ms McDonald that -- 2 of 10 -- 3 there was a demand for carers in the area and therefore the credibility of the respondent about her evidence in seeking employment in 1998 was challenged, the learned trial judge stated at para [38] of the reasons for judgment (“the reasons”): “My impression generally of the plaintiff was a positive one. I thought that her work history indicated a readiness to work and that she would have been likely to have re-entered the workforce when the circumstances of her family, particularly the age of the children, would have permitted. Whilst the lack of response is at least somewhat curious given Ms McDonald’s evidence, I accept the plaintiff’s evidence generally that she was seeking work at the time that the accident occurred.” [10] The respondent’s symptoms following the accident were of pain and discomfort in the neck and chest, a loss of feeling in the right leg, severe headache and pain in the lower back. The learned trial judge accepted the evidence of the orthopaedic surgeons called for the respondent at the trial, Dr White and Dr Cook, as to the respondent’s disabilities at the time of the trial and their relationship to the accident. Both Dr Cook and Dr White thought that the respondent had been left with significant disabilities of the lumbar and the cervical spines. An early x-ray of the lumbar spine which was taken in March 1999 was normal. In May 2000 an MRI of the cervical and lumbar spines was performed which showed that the cervical spine was normal, but there was a broad based disc bulge at L45 and some minor desiccation of the discs at L45 and L5S1. Both Dr White and Dr Cook were of the view that the abnormalities shown in the lumbar spine were the consequence of the accident and that the respondent had generalised soft tissue damage to the upper spine. Dr White assessed the respondent’s disability of the cervical spine as being some 5% and of the lumbar spine some 10% in terms of a whole of person disability. Dr Cook thought that of the 10% disability, 8% should be ascribed to the motor vehicle accident, but the learned trial judge concluded from Dr Cook’s evidence that, given the respondent’s age, any degree of pre-existing degenerative change would have been minor (at para [48] of the reasons). [11] The learned trial judge preferred the psychiatric evidence from the psychiatrist called for the respondent, Dr James, as the learned trial judge found that the evidence of Dr James was supported by what Dr McIntosh, the respondent’s treating general medical practitioner had observed about the onset of the respondent’s depression. Dr James was of the view that the respondent suffered a serious psychiatric condition that was attributable to the accident. In his first report dated 9 November 2001 Dr James said that the respondent had a chronic adjustment disorder with depressed mood, having earlier suffered after the accident from a major depressive disorder which had responded well to treatment. When Dr James subsequently saw the respondent on 19 February 2002, he observed that the respondent had relapsed and that the major depressive disorder from which she had suffered previously had reappeared. Dr James was of the opinion that the pain and disability from which the respondent was then suffering as a result of the accident and the limitation upon her employability were the causes of her present psychiatric condition. [12] The learned trial judge therefore concluded that the respondent suffered significant physical and psychiatric consequences of the accident and that some improvement in her psychiatric problems might be expected with treatment of the kind proposed -- 3 of 10 -- 4 by Dr James of intensive psychotherapy and the use of anti-depressants. Dr James considered that treatment may result in the respondent being able to cease anti- depressants after 1 year, but that it was more likely that the respondent would continue to require both medication and treatment for some longer time. The learned trial judge accepted that the respondent’s symptoms were as she described them in her quantum statement and that she suffered most of them on a daily basis and, from time to time, she suffered more acute symptoms. These symptoms included constant pain across the respondent’s lower back and in her right hip area including pain from her lower back down mainly into her right leg, pain, aching and restriction of movement in her neck and both shoulders, muscle spasm in her neck and shoulders, headaches, feelings of tiredness, depression and mood swings, forgetfulness and loss of concentration and pain in her chest area. Issues on the appeal [13] The issues that were pursued at the hearing of the appeal can be summarised as: (a) whether the award of damages for pain, suffering and loss of amenities in the sum of $50,000 was manifestly excessive; (b) whether an inadequate discount was applied in the assessment of damages for past economic loss; (c) whether the assessment of damages for loss of future earning capacity was manifestly excessive; (d) whether the assessment of damages for past care and assistance was manifestly excessive; (e) whether the assessment of damages for future care and assistance was manifestly excessive; (f) whether the assessment of future pharmaceutical expenses was manifestly excessive; and (g) whether the allowance of $6000 for the cost of the plaintiff to attend a pain clinic in the future was supported by the evidence. Pain, suffering and loss of amenities [14] At the hearing of the appeal the appellant did not challenge any of the findings of the learned trial judge about the nature of the respondent’s injuries suffered as a result of the accident, her symptoms and the prognosis for those injuries. In those circumstances, the award for this head of damages was unassailable. Past economic loss [15] At the trial the respondent relied on an accountant’s calculation of her past economic loss on the basis of full time employment between 1 November 1998 and 25 March 2003 as an assistant nurse under the Nurses’ Aged Care Interim Award- State as being $95,315.71. The learned trial judge took as the starting point for the calculation of this head of damages the sum of $95,000 and applied a discount to assess the respondent’s past economic loss as $60,000. In concluding that analysis of the respondent’s income tax returns would not justify calculating past economic loss on the basis of full time employment, the learned trial judge referred to the plaintiff’s taxable income for the years ended 30 June 1992, 1993, 1994 and 1995 as follows: -- 4 of 10 -- 5 1992 $11,612 1993 $79 1994 $12,190 1995 $11,496 [16] The learned trial judge stated at para [69] of the reasons: “I accept that the plaintiff would have been likely to seek full time work given the family needs associated with two growing children but it would, I think, be unrealistic to assess damages upon the basis that she would have obtained it during the whole period, having regard to her work history prior to the accident.” [17] The appellant relies on the failure of the learned trial judge to refer to the fact that the taxable income for each of the years 1992 to 1995 incorporated some form of Government benefit. The appellant submits that having regard to the respondent’s limited work history pre-accident, the unavailability of work demonstrated by the respondent’s inability to obtain work in the period of 7 months pre-accident, the need to reflect the respondent’s residual earning capacity and the possibility that the respondent may have spent a significant period retraining, the discount applied to calculate past economic loss was inadequate. [18] Even though the learned trial judge did not make specific reference to the Government benefits received by the respondent in the years 1992 to 1995, the point of his listing the taxable income for those years which showed only modest income, in any case, was to show that assessment of past economic loss on the basis of full time employment was not warranted. The learned trial judge set out the employment history of the respondent in detail. The appellant’s submissions on the respondent’s work history make no allowance for the three pregnancies of the respondent and her desire to look after her two pre-school children in the period 1995 to 1997. There is no basis shown for challenging the finding of the learned trial judge that the respondent was genuine about seeking full time work at the time the accident occurred. [19] The learned trial judge’s finding about the respondent’s residual earning capacity was at para [66] of the reasons: “I am satisfied that the plaintiff has had a substantial destruction of her capacity to earn an income and that whilst she has some residual earning capacity it is important not to overstate this. She may be able to work in some supervisory capacity or in some part time position which does not involve any of the activities that I have referred to. The most recent assessment of Mrs Coles is somewhat pessimistic about her capacity to work except for quite limited periods. This is based upon Mrs Coles’ observations of her on that occasion. Nonetheless the evidence taken as a whole, I think, justifies the conclusion that she has a residual, but limited, capacity.” -- 5 of 10 -- 6 In view of the findings of the learned trial judge about the respondent’s suffering and history between the accident and the trial, her opportunities for obtaining employment in that period were extremely limited. [20] It was submitted by the respondent that as the calculation of the loss of $95,000 commenced from 1 November 1998 (some 14 weeks after the accident), the effect of the assessment of the learned trial judge was to treat the respondent as being unemployed for 99 weeks out of 241 weeks which was a discount of 40%. [21] In the light of the learned trial judge’s findings which were favourable to the respondent, the discount applied by the learned trial judge in assessing past economic loss was not inadequate. Loss of future earning capacity [22] The respondent’s counsel at trial (who was not the same as the counsel on appeal) elected to present the respondent’s claim for future economic loss on the basis that the respondent would be unable to work at all for 5 years post trial and that she would have a reduced earning capacity for the following 15 years. In discussing the respondent’s methodology, the learned trial judge made a reference to “the following 30 years” in paras [73] of the reasons, where it is clear that what was intended was a reference to the following 15 years. This approach of limiting the calculation of future economic loss to 20 years until the respondent was 54 years old, rather than 60 or 65 years old, allowed for some discount. [23] The respondent’s calculation was done on the basis that the net weekly wage for a shop assistant at the date of trial was $425 (which itself incorporated another discount, as the net wage for the respondent’s preferred choice of occupation of an aged carer was $442 weekly) and an assumption that after 5 years the respondent’s residual earning capacity was worth $225 net per week for the next 15 years. [24] On the basis of these assumptions, and using the 5% tables, the respondent’s calculation of loss of future earning capacity was $185,400 which was then discounted in submissions to the sum of $150,000. [25] The learned trial judge did not consider that calculation incorporated a sufficient discount and stated at para [75] of the reasons: “Whether the matter is approached in the way contended for or on the basis of the presently substantially reduced earning capacity to earn an income which will continue until she is likely to have ceased work (at an age which, after making appropriate discounts for contingencies and vicissitudes, could hardly be less than the age assumed), the approach appears to me to be reasonable save for the qualification that some further allowance should be made for the risk that she may not have been employed during some periods or that she would have been employed only on a part time basis for part of the period under consideration. I do not overlook the fact that the allowances already made are significant. I allow the sum of $125,000 for future economic loss.” [26] The appellant submitted that the learned trial judge could only have assessed damages on a global basis and that having regard to the sorts of matters on which -- 6 of 10 -- 7 the respondent relied to attack the assessment of past economic loss, an appropriate global sum would have been in the range of $80,000 to $100,000. [27] What is relevant is not the actual mechanics of how the learned trial judge assessed damages for loss of future earning capacity, but whether the figure assessed was within the range of losses reflective of the findings made by the learned trial judge relevant to the respondent’s loss of future earning capacity. The findings of the learned trial judge which underpin the assessment of the loss of future earning capacity were favourable to the respondent and are not challenged. Given these findings, there was nothing excessive about the learned trial judge’s assessment. Past care and assistance [28] In paras [77] and [78] of the reasons the learned trial judge dealt with the claim for past care and assistance: “[77] The plaintiff has had and will continue to have the need for assistance in respect of a number of tasks. These are referred to in her own evidence and in Mrs Coles’ reports. The evidence of her mother is that she provides approximately an hour’s assistance per day to the plaintiff. I have referred to Mrs Coles’ evidence. [78] The basis of the claim for past care appears in Exhibit 1 at paragraph 77. The rates agreed upon in respect of the past, however, are greater than what appears there and some adjustment has been made in the amount contended for by the plaintiff. I generally accept the evidence of the plaintiff on this but I think that some discount for contingencies has to be applied in respect of the past claim and I allow $22,000. I allow interest at four percent for 4.5 years on this sum producing an amount of $3,960.” [29] The amount claimed by the respondent for past care and assistance in para 77 of Exhibit 1 was $28,072, but the care for the period from January 2000 to the date of trial was calculated at $14 per hour, when during the course of the trial the parties agreed that the rate for past care should be $12 per hour. In the submissions made on behalf of the respondent at the trial, past care was therefore sought in the sum of $25,766 (calculated at $12 per hour). It is clear from para [78] of the reasons that the learned trial judge appreciated that an adjustment had been made by the respondent to what had originally been claimed for past care to reflect the agreement on the rate at which it should be assessed. The assessment for past care of $22,000 allows for a discount of about 15% to the sum of $25,766. [30] The respondent had moved in with her parents from October 2000 and was still living with them at the time of the trial. The sum of $25,766 included a component of $7,440 for the period from October 2000 to 25 March 2003 calculated on the basis of care at 5 hours per week. This was the only aspect of the claim for past care that was challenged in cross-examination at the trial. At trial the appellant contended for past care to be calculated during this period at 3 hours per week. At the hearing of the appeal the appellant relied on a so-called concession made by the respondent’s mother in the following exchange during cross-examination, after the -- 7 of 10 -- 8 respondent’s mother had given evidence that she would give the respondent assistance of about half an hour in the morning and half an hour in the afternoon (i.e. 7 hours per week): “Yes. I see. Because I’d like to put to you that on average the need that Loretta has, you could probably get it down to about half an hour a day if you pushed her to a point where she was doing absolutely everything she could?-- Yeah, but I don’t push her hey. No. And you prefer obviously not to push her?-- Mmm. You don’t like seeing her in discomfort?-- No. And you live together as well?-- Mmm. So, there’s no point in making her unhappy as well?-- No.” It was not much of a concession, when the reason that the respondent’s mother did not limit the help to half an hour a day was that she did not like seeing the respondent in discomfort. [31] The learned trial judge applied a discount to the amount claimed by the respondent for this head of damages. In view of the evidence that supported the respondent’s claim that was accepted by the learned trial judge, there is no basis whatsoever for concluding that the assessment of damages for past care and assistance was excessive. Future care and assistance [32] The learned trial judge assessed the claim for future care and assistance in the sum of $50,000. The respondent’s claim for this head of damages at trial was calculated on the basis of 1.5 hours per day for 20 years at $14 per hour. The learned trial judge noted that the claim was a little more than the present assistance being given by the respondent’s mother, but less than Mrs Coles’ assessment of the existing need of the respondent for care. The respondent was reviewed by Mrs Coles, an occupational therapist, on 7 March 2003 and the following opinions were offered by Mrs Coles in her report dated 14 March 2003: “7. I previously opined that Ms Attard could be expected to have had a need for assistance with child care from her accident of about eight hours per week reducing to about four to six hours per week until the children reach school age. This estimate would be for care in excess of that normally expected to be contributed by a spouse or partner. Given the increase in pain and worsening of her mood, for the well-being of the children, Ms Attard has need for assistance with their care of a minimum of about two hours per day when they are in her care. 8. In the event of no significant change in her condition and circumstances, Ms Attard could be expected to have need for assistance with her domestic routine of a minimum of -- 8 of 10 -- 9 about six to eight hours per week on average in addition to child care assistance and this could increase further at times of heightened pain and/or depressed mood.” [33] The learned trial judge made the following observations about the need for future care identified by Mrs Coles at para [80] of the reasons: “It can be anticipated that these needs will reduce in the future so far as they relate to the children. Dr James certainly sees some improvement in her psychiatric condition but on the other hand the claim is limited to a claim for some 20 years and it is possible that her needs will persist beyond this.” [34] In discounting the amount claimed by the respondent for this head of damages, the learned trial judge expressly recognised that he was endeavouring to deal with “the imponderables involved in assessing this claim”. There is no basis for showing that the discretion of the learned trial judge in assessing this claim in any way miscarried, in the light of the learned trial judge’s findings. Future pharmaceutical expenses [35] After the trial and whilst the decision was reserved, the learned trial judge requested further information from the parties about the claim for future pharmaceutical expenses. Both counsel made written submissions in response to this request. [36] In the reasons, the learned trial judge allowed the sum of $12,500 for future pharmaceuticals on the basis that the claim was limited to some 5 years and that the respondent would, after the judgment, no longer receive medication at the concessional rates. After judgment was delivered, the appellant made an application pursuant to the slip rule on the basis that one of the submissions made by the respondent after the trial in response to the learned trial judge’s request for information had conceded that the respondent would continue to receive the pharmaceuticals at the concessional rates. [37] The learned trial judge delivered a further judgment in response to the application under the slip rule in which he stated that he had misapprehended the effect of the information placed before him and had not appreciated that the respondent would not have to pay any greater amount for pharmaceuticals in the future than she had been paying at the date of trial. The learned trial judge adopted the figures contained in the appellant’s written submissions of 28 March 2003 for blood tests and prescriptions, as well as the small further allowance suggested by the appellant for medication subsequent to the period of 5 years. The learned trial judge therefore allowed the sum of $1,025 for future pharmaceutical expenses (after the reduction for apportionment of liability) which reduced the judgment sum from what had originally been ordered of $89,622.38 to $87,522.38. [38] The sum of $1,025 after apportionment means that the learned trial judge assessed this head of damages as being the sum of $4,100. The amount put forward in the appellant’s written submissions was the sum of $3,750 which included an allowance of $300 for the period subsequent to the period of 5 years. What that means, in effect, is that the learned trial judge has allowed about $350 extra for pharmaceuticals for the period of the plaintiff’s life after she is 39 years old. On the appeal the appellant contended that the sum of $2,500 was an appropriate award -- 9 of 10 -- 10 under this head. In the light of what was submitted by the appellant to the learned trial judge, it is difficult to see how the award of $4,100 instead of $3,750 can be outside the range of a proper exercise of discretion. Pain clinic [39] The learned trial judge accepted the evidence of Dr James that he recommended that the respondent attend as an inpatient to a pain clinic for a week which would cost in the vicinity of $6,000. The learned trial judge therefore allowed the claim for that amount in full. It is submitted on behalf of the appellant that there is no evidentiary support for this allowance. The evidence was led in chief from Dr James confirming that the conference note in which the recommendation was recorded accurately set out his opinions and Dr Jones was not cross-examined on this aspect by the appellant. There is no proper ground for interfering with this award. Order [40] None of the grounds of appeal of the appellant can be sustained. It follows that the orders which should be made are: 1. Appeal dismissed. 2. The appellant to pay the respondent’s costs of the appeal to be assessed. -- 10 of 10 --