Camille v Kahlon & Anor [2003] QCA 511

SUPREME COURT OF QUEENSLAND CITATION: Camille v Kahlon & Anor [2003] QCA 511 PARTIES: MAUREEN MARIE CAMILLE (plaintiff/respondent) v KARACHARAN KAHLON (first defendant) AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED ACN 004 791 744 (second defendant/appellant) FILE NO/S: Appeal No 633 of 2003 DC No 4109 of 2001 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 18 November 2003 DELIVERED AT: Brisbane HEARING DATE: 28 July 2003 JUDGES: McMurdo P, Mackenzie and Helman JJ Judgment of the Court ORDER: Appeal dismissed with costs to be assessed CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – whether the amount awarded for future economic loss was excessive PRACTICE AND PROCEDURE – COSTS – GENERALLY – where respondent’s offer to settle not accepted – where trial judge ordered indemnity costs - whether costs should be assessed only on the standard basis Uniform Civil Procedure Rules 1999 (Qld), r 704 Bresatz v Przibilla (1962) 108 CLR 541, considered Camille v Kahlon & Anor [2002] QDC 341; DC No 4109 of 2001, 20 December 2002, considered COUNSEL: S C Williams QC, with P D Corkery, for the appellant R V Hanson QC, with P L Feely, for the respondent -- 1 of 8 -- 2 SOLICITORS: Deacons for the appellant McInnes Wilson for the respondent [1] THE COURT: The appellant, the first defendant’s1 insurer, was ordered to pay the respondent damages of $187,707 for injuries she suffered as a result of the first defendant’s negligence in causing a motor vehicle accident on 14 May 2000. The appellant contends, the learned primary Judge erred in assessing the future economic loss component of that damages award. [2] In the grounds of appeal as amended at the hearing, the appellant contends that the learned primary judge’s award of damages for future economic loss was manifestly excessive and that he erred in failing to properly consider the medical opinions of Drs White, Weidmann and Martin; in finding the respondent could not perform her usual employment full time without discomfort; in finding that she continued to remain in her employment in Australia because of her financial commitments; in finding she was absent from her Australian employment for 26.5 days as a result of the accident; in failing to take into account her likely future earnings in the Seychelles and in failing to sufficiently discount the award of future economic loss for contingencies. [3] The respondent was born in the Seychelles on 2 February 1954. She was 46 at the time of the accident and 49 at trial. She was fluent in Creole, English, French and Swahili. She came to Australia in 1992, primarily so that she and her husband could provide their three children, (aged at trial 25, 21 and 18), with a sound education. She obtained a job with Queensland Health at Logan Hospital, where she was employed for eight years. Her position at the hospital included a wide range of secretarial and administrative duties and she was always "extremely busy". Her husband returned to the Seychelles to take up a managerial position in 1998. She lived with her children in their purchased home at Rochedale and her husband visited occasionally. [4] The respondent was the front seat passenger in a sedan driven by her elder daughter when it collided with the first defendant’s vehicle. The force of the collision pushed the respondent’s vehicle across the road almost into a fence and turned it 180 degrees; her body was thrown forward and sideways although she was wearing a seat belt. She alighted from the driver’s side of the vehicle as the passenger door would not open. The appellant admitted liability for the motor accident. [5] The following day the respondent visited her general practitioner and was treated for shock and pain in her neck and shoulders. She had continuing cervical pain and was subsequently examined by a number of specialist medical practitioners. She had physiotherapy shortly after the accident but as it was not helpful she had no further physiotherapy whilst employed at the Logan Hospital. She left that position in December 2000, sold the family home and returned to the Seychelles with her youngest child who was not especially academically gifted, leaving the older children in a rented flat to complete their education in Queensland. She was employed as a secretary by the Seychelles Chamber of Commerce from September 2001 until February 2002 and has not been employed since. 1 The first defendant is not a party to this appeal. -- 2 of 8 -- 3 Did the judge fail to properly consider the medical evidence? [6] As is common in cases of this type there was a variance of medical opinion as to the cause and extent of the respondent’s symptoms. His Honour’s task was to determine the relevant facts and issues from this divergent evidence. [7] In his written reasons the learned primary judge considered the evidence of neurologist Dr Todman who thought the respondent had suffered "a whiplash injury which was producing symptoms likely to be permanent, and causing a 15 per cent disability of the whole person. She could work part time but would find it difficult to work full time or to do any heavy physical work or lifting."2 Dr Todman felt that the respondent’s pre-existing degenerative changes to her cervical region had been exacerbated and made symptomatic by the accident and were permanent.3 [8] His Honour also reviewed the evidence of orthopaedic surgeon Dr White who examined the respondent on 19 June 2001 at the request of her solicitors. He "… thought that some of the disruption to the discs shown on the MRI scan had been caused by the accident … her condition was likely to be permanent … and he assessed a whole person impairment of the order of 20%, of which one third could at this stage be attributed to the injury." Dr White thought the respondent’s degenerative condition pre-disposed her spine to injury in the event of trauma and as she aged, less trauma would be required to make the neck pain symptomatic had the accident not occurred; she could undertake full time work provided she was able to move around and do different tasks.4 [9] His Honour also reviewed the evidence of orthopaedic surgeon Dr Martin who examined the respondent on 13 June 2001 at the appellant’s request. Dr Martin did not review any X-rays of the respondent although he saw a report on the MRI scan conducted about that time which showed degeneration of the cervical spine, in part compatible with her age and in part in excess of it. He saw no evidence of nerve root or spinal cord compression and formed the view that there was no evidence of any continuing problem caused by the motor vehicle accident.5 [10] His Honour next considered the evidence of neurosurgeon Dr Weidmann who examined the respondent on 24 May 2002 at the request of the appellant and also examined the reports of the CT scan in November 2000 and the MRI in June 2001. He thought the degree of degeneration indicated by those reports was common for a person of her age. He formed the opinion she had suffered a whiplash injury and, although it was unusual for there to be no improvement in her symptoms, this was not necessarily inconsistent with that injury. She could return to administrative or secretarial duties or do housework. He assessed the impairment at 5 per cent permanent partial impairment of the whole person. Her ability to work would depend on her pain threshold. Had she not suffered the injury in the accident she probably would not have developed similar symptoms despite the degeneration.6 [11] His Honour accepted that the respondent had significant continuing symptoms and discounted the evidence of Dr Martin other than to accept that someone of the respondent’s age was likely to have a significant degree of degeneration. His 2 Camille v Kahlon & Anor [2002] QDC 341; DC No 4109 of 2001, 20 December 2002, [10]. 3 Ibid [11]. 4 Ibid [12]. 5 Ibid [13]. 6 Ibid [14]-[15]. -- 3 of 8 -- 4 Honour preferred the evidence of Drs White and Weidmann; as to their differing views on the percentage disability, his Honour observed that Dr Weidmann’s assessment was without regard to the subjective element of pain, a very relevant factor for his Honour’s purposes, and determined that the respondent had suffered a permanent 15 per cent whole body disability.7 [12] In oral submissions this ground of appeal turned on the contention of Mr Williams QC, who appears with Mr Corkery for the appellant, that Dr White’s opinion was based on a false premise put to him in cross-examination, namely that the respondent was forced to give up her employment at the Logan Hospital because of her disabilities resulting from the accident. The appellant emphasises that his Honour found a direct conflict between the evidence of the respondent (that she left her work at the Logan Hospital because of her disabilities following the accident) and that of her supervisor, Ms Welsh, (that prior to the accident the respondent told her she intended to leave her employment at the end of 2000 to return to the Seychelles), and contends that this shows the respondent lied to maximise her damages award. [13] It is useful to set out the contentious question and answer: Mr Feely: "The history related to us today is that she’s had – she was working in a hospital as an administrative assistance (sic) doing secretarial, typing and other similar duties at the time of the accident. She says without restriction. She had the accident and the symptoms in her neck and shoulder come on. They remain with her. The history give (sic) was one of increasing difficulty with her work. Not that – not that she was unable to work at all, but that beyond four to possibly six hours a day initially she was starting to get into serious trouble and suffering real pain. She says that that forced her to effectively give up that employment. She then had a period of time off work where she returned – left Australia and returned overseas to the Seychelles. For some nine months or so she rested. She then took up full time employment again as a secretary/administrative officer and the history she gives us today is that she again was subjected to pain and problems in that work. She would generally start at about 8.a.m. By about mid-day she was getting real problems and was very sore, very painful, found it hard to concentrate and lasted in that job for five months. … So, the position seems to be that she’s – she tells us she was able to do – well, work part time in a sense that she could do half the day’s work but after that she’d have real difficulty. Now, are those sort of symptoms and problems, are they in keeping with the examination and analysis that you made?" Dr White: "They are." (emphasis added) [14] The emphasised contentious matter put to Dr White in cross-examination about which the appellant complains was contained in a lengthy question encompassing the respondent’s relevant claims, including her assertion, rejected by the trial Judge, that she was forced to effectively give up her employment because of her neck pain. It seems unlikely that this one factor isolated from the many other factors also put to 7 Ibid para [16]. -- 4 of 8 -- 5 Dr White in that question would have affected his response that these symptoms and problems were consistent with his opinion of the respondent’s condition. [15] It is also significant that, whilst his Honour treated the respondent’s evidence with "some caution" because of the conflict with Ms Welsh, he generally accepted her evidence and found that "… the job was causing her problems, but that she was prepared to carry on (with some time off work) essentially because she wanted to be able to keep the job until the end of the year, when she was happy to give it up."8 These findings do not suggest the respondent was lying to maximise her damages award. His Honour was not compelled to reject all the respondent’s evidence simply because he rejected one aspect of it. His Honour accepted her evidence that the pain resulting from the injury was continuous, aggravated by working and was, if anything, getting worse and found that the degeneration in her neck, which was a little worse than average for her age, was made symptomatic by the injury. In the light of these findings, which were open on the evidence, it seems even more improbable that Dr White’s opinion would have been affected by the knowledge that pain was not the primary or sole reason for the respondent leaving her work at the Logan Hospital. [16] His Honour rationally explained why he preferred the evidence of some specialist medical practitioners to others. The appellant’s contention that the learned primary Judge failed to properly consider the medical opinions is without substance. His Honour’s findings that the respondent could not work full time without discomfort and remained working in Australia because of financial commitments [17] His Honour noted that the respondent’s evidence was that she continued to work at the Logan Hospital after the accident despite her pain because of her financial commitments.9 Whilst his Honour generally accepted the respondent’s evidence, he made no specific finding on this issue and nor does it feature as a relevant factor in his assessment of future economic loss. In any case, it would have been a finding open on the evidence, because that was the respondent’s uncontradicted evidence. [18] Although his Honour did not accept the respondent ceased her employment at the Logan Hospital because of her injuries, his Honour found the following facts. The job caused her problems but she was prepared to keep working until the end of the year when she planned to give it up.10 When she returned to the Seychelles there was a delay in her obtaining employment partly because she was resting her neck. When she returned to work she was unable to cope with full time employment and she will be unable to work full time indefinitely in the future although she may be able to work full time for relatively short periods or to work part time.11 These findings were consistent with the accepted medical evidence, and the evidence of the respondent, Ms Welsh and Mrs Tirant-Gherardi. [19] The fact that the respondent’s post-accident physiotherapy ceased after a short period12 and that there were no complaints about her work did not compel a contrary finding on either issue. These contentions are also baseless. 8 Ibid para [19]. 9 Ibid [4]. 10 Ibid [19]. 11 Ibid [20]. 12 The respondent said the physiotherapy was not helpful. -- 5 of 8 -- 6 The respondent’s sick leave [20] The learned primary judge noted that the respondent’s evidence was that she continued to work after the accident but took additional sick leave as set out in a schedule;13 she took five days off immediately after the accident and a further 25½ days off, although four of these were for reasons other than the consequences of the accident.14 [21] The appellant contends that the cross-examination of the respondent demonstrated that more than four days sick leave related to matters other than the accident-related injury. [22] The evidence demonstrates that the respondent took about 30 days sick leave from May until November 2000. In cross-examination she agreed that two of these days, from (21 to 22 June 2000), related to a possible spider or insect bite after gardening and she may also have had some chest symptoms; from 24 to 28 July 2000 she was absent from work on sick leave because of surgery related to the possible spider bite; and from 27 November to 8 December 2000 she was off work partly for treatment for her thyroid, partly for gynaecological problems and partly because of symptoms related to the accident. It hardly matters whether the respondent took four sick leave days (as referred to by his Honour) or between six and seventeen sick leave days (as contended by the appellants) unrelated to the accident. As his Honour pointed out, she took much more sick leave in 2000 after the accident than in any of her eight years' employment; in the 2 years prior to the accident she had taken none; although she had other long standing medical problems these had not significantly interfered with her ability to work. The appellant has failed to demonstrate that his Honour’s slight over estimate of the respondent’s accident-related sick leave when summarising her evidence flawed his reasoned assessment of damages for economic loss. The respondent’s chances of future employment in the Seychelles [23] The appellant contends the learned primary judge was wrong in finding that "… in the light of the evidence it is unlikely [the respondent] will be able to find suitable part time or occasional employment …" in the Seychelles where she resides so that "… it is likely that her earning capacity has, in a practical sense, been substantially lost as a result of the accident."15 [24] The respondent’s evidence was that when she returned to the Seychelles in early 2001 she initially rested to alleviate or reduce her symptoms and then looked for suitable employment. She applied for a number of jobs and was interviewed by Air Seychelles. At the time there were no job opportunities in the tourist industry. She approached different establishments directly to see if they had a job vacancy. She commenced employment with the Seychelles Chamber of Commerce and Industry as a secretary in September 2001. She worked from 8.00 a.m. until 4.00 p.m, (presumably 5 days each week), in an office without ergonomically designed furniture. She had no difficulty coping with the work in the mornings but by the afternoon she was in a lot of pain in the neck region and was unable to continue working; she resigned after 5 months. She read the newspapers every day looking 13 Ex 7. 14 Ibid [4]. 15 Ibid [20]. -- 6 of 8 -- 7 for part time work but was unable to find any part-time work available in the Seychelles, which has a population of about 82,000 people. No other evidence was given in the trial about the availability of part time work in the Seychelles; nor was it put to her in cross-examination that suitable part time work was available in the Seychelles. [25] Mrs Tirant-Gherardi, the Secretary General of the Seychelles Chamber of Commerce and Industry gave evidence that she employed the respondent from September 2001 until March 2002. She described the respondent as a very hard worker who excelled in her position and dealt well with people. She noticed the respondent appeared to be having difficulty with her back and that conditions in the office were not conducive to her back problems; sometimes she would cringe with pain; by the afternoon she was in quite a lot of pain and happy to be going home. There was no part time work available in her office; she needed a full-time employee in that position. She was not asked about the general availability of part time secretarial or administrative work in the Seychelles. [26] The difficulty for the appellant is that the question of the prospect of future suitable part-time work for the respondent in the Seychelles was not further explored at the trial. If the position in the Seychelles were comparable to that in Australia, it would be surprising if suitable part time work were not available but that is not the evidence. His Honour was entitled to conclude on the scant evidence on the issue that it was unlikely the respondent would be able to find such work and therefore likely that her earning capacity has been substantially lost. His Honour was therefore not wrong in failing to calculate the respondent’s entitlement to future economic loss by taking into account a specific figure of notional future earnings in the Seychelles. His Honour nevertheless recognised the possibility that the respondent in the future might find short term full-time employment or part-time employment. Whether his Honour gave sufficient consideration to this matter is considered in the next ground of appeal. Did the assessment of future economic loss sufficiently recognise the various contingencies? [27] The learned trial judge assessed future economic loss based on the respondent's approximate weekly income with the Seychelles Chamber of Commerce and Industry ($340 per week). His decision was handed down on 20 December 2002 so that just over 14 years will elapse from then before the respondent will reach the age of 63. Applying the five per cent table, we arrive at $179,860, which may be rounded off to $180,000, as the present value of $340 per week for 14 years. His Honour arrived at $187,000, apparently treating the respondent's remaining working life as 15 years. He then discounted that figure to $120,000 "because of the vicissitudes of life, and the possibility that there might have been some problems with degeneration of the spine in any event. There is also the possibility that the [respondent] may get some less demanding work from time to time in the future even in the Seychelles." [28] The only evidence as to the availability of part-time office work, which the evidence suggested was the kind of work reasonably within the respondent's capabilities, was that it was not easy to find in the Seychelles. Other judges may have assessed the discounting factor at a different level, but, even accepting that his Honour's figure of $187,000 was too high, it has not been demonstrated that the figure of $120,000 arrived at by his Honour was inconsistent with the evidence before him. The figure -- 7 of 8 -- 8 of $180,000 must be adjusted to take into account contingencies, but it is as well to remember when that task is undertaken that not all contingencies are adverse.16 It follows that we are not persuaded that the assessment of the respondent's damages for future impairment of earning capacity at $120,000 has been shown to be manifestly excessive. Costs of the trial [29] The appellant has not appealed against the costs order made by his Honour that they pay the respondent’s costs of and incidental to the action on an indemnity basis, nor have they applied to amend the grounds of appeal to do so. The orders they seek, however, include that "the order for costs be varied by deleting therefrom the words 'on the indemnity basis' and inserting in lieu thereof the words 'on the standard basis'." [30] In May 2002, the respondent made an offer to settle for $100,000. The offer, which under the UCPR was open for ten days, was made shortly before the trial was first listed for hearing in May 2002. Four days after the offer was made, the respondent amended her statement of loss and damage to disclose for the first time that she had worked in the Seychelles for five months and she decreased her claimed future economic loss from $194,000 to $172,000. The appellant did not accept the offer. It intended to apply for an adjournment of the trial to investigate the new facts raised in the amended statement of economic loss and damage, but in the end this became unnecessary because the trial was not reached. It proceeded before his Honour in August 2002. The appellant contends that the respondent should not benefit from an offer to settle made before her disclosure of all relevant facts, and that the costs should be assessed only on the standard basis. [31] His Honour observed that the appellant had ample opportunity to investigate the new material, and, if it considered it appropriate, to make an offer to settle in the same terms as those made by the respondent. As a result, his Honour concluded that there "… was an offer which should have been accepted and that, therefore, the ordinary consequence contemplated by the rule should follow"17 and awarded indemnity costs. [32] A judge has a discretion to order indemnity costs: UCPR r 704(1). The approach taken by his Honour was consistent with the spirit of Part 5 of the UCPR. The appellant has failed to demonstrate any reason for interfering with his Honour’s discretionary exercise. Order: Appeal dismissed with costs to be assessed. 16 Bresatz v Przibilla (1962) 108 CLR 541, 544 per Windeyer J. 17 Appeal Book 163. -- 8 of 8 --