Camm v Salter [1991] QSCFC 120 [1992] 2 Qd R 342

fc IN THE SUPREME COURT OF QUEENSLAND FULL COURT Writ No. 2033 of 1982 BETWEEN: JANICE ANN CAMM ( Plaintiff) Respondent AND: PETER ROBERT SALTER (Defendant) AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant THOMAS J RYAN J MACKENZIE J Reasons for judgment delivered by Thomas, Ryan & Mackenzie JJ on 4th October, 1991. All concurring as to the order. "ORDER THE JUDGMENT BELOW BE VARIED BY REDUCING IT BY THE SUM OF $9,000 IN ACCORDANCE WITH AN AGREEMENT BETWEEN THE PARTIES CONCERNING INTEREST BUT OTHERWISE THE APPEAL IS DISMISSED WITH COSTS." [1991] QSCFC 120 -- 1 of 34 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice Thomas Mr. Justice Ryan Mr. Justice Mackenzie No. 2033 of 1982 BETWEEN: AND: JANICE ANN CAMM (Plaintiff) Respondent PETER ROBERT SALTER (Defendant) AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant REASONS FOR JUDGMENT - THOMAS J. Delivered the 4th day of October, 1991. CATCHWORDS: Interest on damages - Pre-trial pain and suffering application in Queensland of Goqic (1991) 65 A.L.J.R. 203 - Need to halve the applicable rate - Invalid pension - Need for analysis of amendments to Social Security legislation before determining whether such payments to be brought into account for calculation of interest - Question reserved whether principle of Espagne's case applies to legislation after 1986. Counsel: S.Cl Williams Q.C. with C. Newton for appellant/defendant by election J.A. Griffin Q.C. with P. Darwin for respondent Solicitors Bradley & Co. for appellant Michael Sing & Associates for respondent Hearing date: 10 September, 1991 -- 2 of 34 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2033 of 1982 BETWEEN : JANICE ANN CAMM (Plaintiff) Respondent AND : PETER ROBERT SALTER (Defendant) AND : FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant REASONS FOR JUDGMENT - THOMAS J. Delivered the 4th day of October, 1991. In this appeal the defendant by election submits that the overall award of damages ($462,797.31) and interest ($72,714.00) is excessive. The particular components whose assessment is said to have resulted in the excess are: Damages for pain, suffering and loss of amenities $85,000.00 Griffiths v. Kerkemever damages - past $36,190.00 - future $71,368.00 Future hospital and medical expenses $130,406.00 It is further contended that the assessment of interest was excessive. For the reasons of Ryan J. which I had the benefit of reading, I consider that the total of the damages assessed is sustainable within the principles set out in Calder v. Bovne Smelters Ltd. (1991) 1 Qd.R. 325. Whilst the assessment of -- 3 of 34 -- 2 damages for pain, suffering and loss of amenities and for future hospital expenses might be thought on the high side, the assessments of economic loss (past and future) tended to be conservative, andthe whole the assessment of damages should not be disturbed. The grounds taken in relation to interest are as follows. "8. The Learned Trial Judge erred in law and in fact in assessing interest on the past pain and suffering in that His Honour failed to take account of the High Court decision in M.B.P. (S. A. ) Ptv . Ltd, v. Goaic (26/02/91 ), A16 of 1990) in that interest was awarded on the past loss at a commercial rate rather than a discounted rate of interest. 9. The Learned Trial Judge erred in law and in fact in allowing interest on past economic loss in that he did not take account of the ' income1 in fact received by the Plaintiff since the time of the accident." At the commencement of the appeal we were informed that the parties, in deference to the decision in M.B.P. (S.A. ) Ptv. Ltd, v. Goaic (1991) 65 A.L.J.R. 203 had agreed that the rate of interest on the damages for pain, suffering and loss of amenities should be reduced "from six per cent to four per cent" . The agreement was that the award should be adjusted to reflect that agreement, but that this was to have no effect upon the costs of the appeal. The sum attributed by the learned trial judge to past pain, suffering and loss of / amenities was $45,000.00. Counsel for the appellant sought to argue that the allowance of interest over the whole of the 10 year period between accident and trial was excessive, and that a more limited period should have been adopted. No such point was raised by the grounds in the notice of appeal, and no -- 4 of 34 -- 3 amendment was sought. Accordingly, upon objection being taking counsel for the appellant did not pursue that point. Thus, whatever the rate and whatever the sum upon which interest should be allowed, the calculation will span a period of 10 years. The usual practice in this State is to allow interest on such damages from the date of the injury (rather than from the issue of the writ) until date of trial, subject of course to the power of the trial judge to limit the period of the assessment when there has been undue delay or when there is other good cause. When a very substantial period has elapsed between accident and trial it is not uncommon for the trial judge to limit the assessment of interest to a period such as five years. Of course the circumstances are infinitely various and the trial judge's discretion in this respect is unfettered. Whatever the period (and in the present case the 10 year period must be taken as the appropriate one) the practice for many years in this State has been to allow interest at six per cent over the .selected period. This is based upon a notional rate of 12 per cent interest, but it is reduced to six per cent to give recognition to the fact that the suffering and deprivation is a composite loss suffered day by day. That which is endured during the first month of the period is a loss for which the plaintiff fails to receive money for 10 years. That which is endured during the last month before trial is something for which he receives almost immediate payment. During the median period, say during the fifth year, the loss is suffered five years before -- 5 of 34 -- 4 compensation is received. Thus, when the whole spectrum is taken into account the appropriate result is achieved by limiting the interest that would have been awarded had all the detriments progressively suffered over the relevant period been endured on the first day. ( Fire and All Risks Insurance Co. Ltd, v. Callinan (1978) 140 C.L.R., 427, 432-433.) The fact that the cause of action is complete immediately upon the causation of the injury is not to the point. The deunage that is prospective from that moment may encompass the rest of the plaintiff's life, but it will be suffered day by day. The particular part of the plaintiff's life now under scrutiny is the period between accident and trial . The halving may be done either by dividing the period or the interest rate, and , the practice has been to perform the exercise by the latter means . The same process applies with respect to damages for past economic loss. Because the loss over the first month is sustained over a period of 10 years whilst the loss over the last month is sustained for a negligible period before the award, the same halving exercise is performed. Thus it is that we have been performing such exercises upon what has become the familiar figure of six per cent. The basi£ underlying the process has not been spelled out for some time, and it is in danger of being forgotten, as the present arrangement between the parties tends to suggest. The need for fresh reference to it arises in the wake of Gogic (above). It is suggested in that case (without laying it down as a rule) that the adoption of a fixed figure such as four -- 6 of 34 -- 5 per cent may be preferable in relation to damages of this kind rather than ascertaining commercial rates and eliminating the figure that represents inflation. The reasoning of the High Court is directed to the primary rate that should be applied to compensate the plaintiff for the delayed receipt of damages of this kind. It remitted the matter to the South Australian Supreme Court for reassessment in accordance with its judgment. Such assessment will "necessarily involve the paying of due regard to the time of manifestation and to the duration of the various detriments in question" ( Fire and All Risks Insurance v. Callinan (above, 433). In discussing the way in which this is sometimes dealt with in South Australia, King C.J. observed in Wheeler v . Page (1982) 31 S.A.S.R. 1, 5: "In these circumstances judges sometimes calculate interest on the pre-writ loss for the whole period and interest on the post-writ loss for a reduced period. If, however, a substantial part of the pre-trial loss is sustained before the issue of the writ, fairness may require that interest be awarded on the whole of the pre-trial loss for the whole period between the commencement of the proceedings and judgment, the under-compensation in respect of the pre-writ loss cancelling out the over-compensation in respect of the post-writ loss." On the other hand, in that case Jacobs J. expressed his preference for what I have described above as the Queensland practice (pp. 8-9). Whichever approach is taken, the point remains that something like a 50 per cent abatement will in most cases be necessary to the exercise after the primary applicable rate of interest is determined. The adoption of a four per cent figure (or some similar figure) as the appropriate one for use in this State therefore does not mean that the familiar six per cent figure is reduced -- 7 of 34 -- 6 to four per cent; it means that the familiar twelve per cent figure is reduced to four per cent. In turn, the six per cent figure that would otherwise be applied to the full amount of pretrial damages for pain, suffering and loss of amenities is reduced to two per cent. The parties in the present matter are of course bound by the terms of their agreement. However it should be clearly understood that the adoption of the reasoning in Goaic to the practice in this State in actions for damages for personal injuries does not prima facie convert the familiar six per cent interest on these damages to four per cent, but rather to two per cent. Goaic does not purport to apply to other heads pf damage in cases of this. kind. It may be that at some stage a distinction will be drawn between interest applicable in commercial cases and that applicable in relation to past economic loss in personal injury cases. However for the present, in relation to interest on past economic loss I see no reason to depart from the general practice suggested for this State in Serisier Investments Ptv. Ltd, v. English (1989) 1 Qd.R. 678. This suggests that in cases where the damages are an assessment of economic loss, in the absence of specific evidence justifying a different figure, the figure of 12 per cent should be generally adopted. On this footing six per cent will be the appropriate rate to apply with respect to economic loss that is progressively incurred over the period in question. -- 8 of 34 -- 7 It is unnecessary to deal further with ground 8 in view of the arrangement made by the parties except to say that the application of the parties' agreement to the interest in question will require a reduction of $9,000.00 from the judgment sum ($45,000.00 for 10 years at (six per cent-four per cent)). Ground 9 complains that the interest was based upon an excessive amount in that the judge failed to take account of "income" in fact received by the plaintiff between accident and trial. Upon analysis this is an attempt to extend the principle of Haines v. Bendall (1991) 65 A.L.J.R. 349 to payments described by counsel as "invalid pension". In Haines v. Bendall a(above) the majority (Mason C.J., Brennan , Dawson, Toohey and Gaudron J J .) held that payments received by a plaintiff under s. 16(1) of the Workers 1 Compensation Act 1926 (N.S.W.) must be taken into account before calculating interest on the damages assessed for pain, suffering and loss of amenities. In reaching that conclusion with respect to receipts of that kind, Mason C.J., Dawson, Toohey and Gaudron JJ. found it necessary to make a close examination of the legislation under which such payments were made, and to characterise their nature and purpose. Having found that such payments were distinguishable from those that depend upon incapacity for work, and that the plaintiff's receipt of them should not be attributed to pretrial economic loss, Their Honours concluded that compensation paid under s . 16 serves the same broad purpose as an award of damages under common law. In those circumstances it was concluded -- 9 of 34 -- 8 that such receipts should be taken into account. The award of interest, based on the assumption that the plaintiff was out of pocket, when the plaintiff was not out of pocket by reason of receipts of this kind, would go further than restoring the plaintiff to his position but for the defendant's negligence. In the present case counsel for the appellant made no attempt to relate the evidence to the Social Security Act 1947 (as amended) or to classify with any precision the nature of the benefit upon which he asks this Court to pronounce. Having regard to the fact that the alleged benefits were received by the plaintiff over a period of over 10 years (1980-1991) and to significant alterations in the nature and scheme of pensions over that period, as well as significant alterations in the power of the director to recover portions thereof when damages are awarded ( see Dabinett v. Whittaker (1989) Qd.R. 228) it is extraordinary that no attempt was made to characterise the benefit. Little attention seems to have been paid to the matter at trial, and the evidence is minimal. The nature of the pension received by the plaintiff (as distinct from her husband) is not clear, and neither is the amount received by her in her own right . The only direct evidence seems to be in the evidence of the plaintiff's husband. He said that "she went on to the invalid pension" in September 1980 and that she had been on it ever since. When he was not working (which was most of the time) he was on a "carer's pension". He was still getting "something" by way of a carer's pension notwithstanding that he was at the time of trial working -- 10 of 34 -- 9 part-time. When asked the amount of the carer's pension he replied "between us we get $452.00 and that includes rent allowance - per fortnight" . The following appears in cross-examination. "If you went back to full-time work you presumably wouldn't get any carer's pension? — No. And your wife's invalid pension would be reduced or ceased? — Yes. Ceased? — I think it would cease. It would depend on the amount of gross wages I earnt. BY HIS HONOUR: Do you know what the qualifications are for a carer's pension? — To be exact, no, I don't. It's organised by the doctor - the government doctor. You had to fill in forms and so on? — Yes. Your wife had to fill in - forms? — Yes, and go before a medical - government medical officer. And after you put that application in then, who gives you the carer's pension?— Social Security. Do you get the one pension for yourself and your wife or do you each get your separate pensions? — We get a separate pension but it's paid into our joint bank account. You told me you get $452 per fortnight carer's pension and invalid pension. You are not able to say how that's split up between the two? — It would be half each. You understand that you get half what the joint amount is that's paid in by way of carer's pension and your wife gets the other half as invalid pension?— That's right." No evidence was called from the Social Security Department nor was any document or letter produced to demonstrate the nature or amount of the plaintiff's Social Security receipts. On that appeal, in reliance upon the somewhat facile guess of the plaintiff's husband that "it -- 11 of 34 -- 10 would be half each" the appellant ' s counsel contended that her receipts must be the same as the pension benefits disclosed by the husband over the same period. On this basis it was submitted that the plaintiff's pension entitlements must be the same as those disclosed by her husband as his social security benefits in his tax returns from 1981 to 1989, and that she therefore must have progressively received between 1980 and 1989 total payments of $23,117.00 as "invalid pension" . For the remaining two and a half years counsel submitted for a median figure between the $89.00 per week derived from Mr. Camm's income tax return for 1989 and the $113.00 per week which is said to be the plaintiff's one half share of the joint fortnightly benefit of the parties ($452.00) at the time of trial. By this means the submission suggest that the total receipts of the plaintiff before trial must have been about $37,588.00. That then is the basis upon which this Court is asked to rule that the learned trial judge committed an appealable error by calculating interest on past economic loss without taking into account the above pension receipts. I do not wish to be taken as rejecting the proposition that receipt by a plaintiff of invalid pension payments of the kind now paid under the social security scheme ought not to be taken into account in diminution of interest on damages for past economic loss. It seems to me that in 1986-1987 some rationalisation occurred within the Social Security legislation whereunder for some relevant purposes receipts by way of unemployment benefits and receipts by way of sickness -- 12 of 34 -- 11 benefits are treated as flowing in the same stream (Dabinett v. Whittaker (above) p. 229). It may well be that the test framed in Espaane 1 s case (1961 ) 105 C.L.R. 569, 599, based as it is upon a presumed legislative intention that certain pensions are to be received and retained by a plaintiff independently of the further receipt of damages, is no longer appropriate to a legislative scheme which now asserts the government's right to recoup all manner of benefits out of damages awards. It was however regarded as still applicable in Redding v. Lee (1983) 151 C.L.R. 117. I would add that upon the robust reasoning of Brennan J. in Haines v. Bendall (above) (p. 354), invalid pension receipts under the present social security legislation may well be regarded as "subventions to which an injured worker is entitled by reason of his having received an injury". If so, on His Honour's reasoning they should be accounted for in interest assessments. The simplicity of such an approach is appealing. However the majority judgment requires, at least in the first instance, a close examination of the relevant legislation, which is sufficiently complex to require at least some assistance from counsel. The notion of Social Security as the largesse of a benevolent government distributing benefits which fortunate citizens are entitled to keep may now seem a little naive and it may be that Espaane ' s case should not much longer hold the fort in this area. It is a familiar experience to those involved in trial .litigation in cases of this kind that the application of Espaane' s case frequently leads to windfall -- 13 of 34 -- 12 benefits, and in reality to double compensation. I do not criticise the reasoning in Espaane' s case . but rather think that the legislative scheme has so altered that the reasoning is no longer applicable to it. There have been many amendments and the process has been gradual. Minds may differ as to where the watershed is to be found, if it is to be found at all. To my mind the Social Security and Veterans* Affairs (Miscellaneous Amendments) Act 1986 and associated measures effected a very significant change in both practice and philosophy. These measures authorised the recovery by the director of invalid pension payments just as readily as unemployment benefits when those payments were made following a compensable accident. As I. read the legislation, that legislation applies to cases where benefits commenced to be paid after 1st May', 1987, with respect to cases determined on or after 9th February, 1988 (Dabinett v. Whittaker above). The recent Social Security Act 1991, replacing the diffuse earlier legislation, may be thought to have taken the matter still further. Certainly it is difficult to see any longer "this distinguishing characteristic, namely (that it is) conferred on him not only independently of the existence in him of a right of redress against others but so that (it) may be enjoyed by him although he may enforce that right" or that it is "a disposition in his favour intended for his enjoyment" (per Dixon C.J. in Espaane at p. 573). Whilst such submissions may be viable in relation to benefits which first commenced to be paid after 1st May, 1987, that is of no assistance to the appellant in the present case. c -- 14 of 34 -- 13 Here the benefits apparently commenced well before that date, probably in or around 1980. Assuming they were "invalid pension" payments, so far as my limited researches go, they may properly be regarded as benefits of the kind comprehended in Espagne. Certainly no case was made out to the contrary. The present case does not satisfactorily establish the amount of the alleged benefit or its nature. This case is an unsuitable for a test ruling on this question. In the absence of any assistance whatever from counsel which would enable some assessment of the relevant legislative basis of the benefit, it is impossible to hold that the learned trial judge was in error in calculating interest upon past economic loss without deducting the so-called invalid pension payments. In the result the judgment should be adjusted to give effect to the parties' agreement by reducing the interest by $9,000.00. Otherwise the appeal should be dismissed with costs . -- 15 of 34 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2033 of 1982 Before the Full Court Mr Justice Thomas Mr Justice Ryan Mr Justice Mackenzie BETWEEN: JANICE ANNE CAMM (Plaintiff) Respondent AND: PETER ROBERT SALTER (Defendant) AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant JUDGMENT - RYAN J. Delivered the Fourth day of October, 1991. Counsel: S. Williams Q.C. with C. Newton for Appellant J. Griffin Q.C. with P. Darwin for Respondent Solicitors: Bradley & Co., Solicitors for Appellant Michael Sing & Associates for Respondent Hearing Date: 10 September 1991. -- 16 of 34 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN: JANICE ANNE CAMM (Plaintiff) AND: PETER ROBERT SALTER (Defendant) No. 2033 of 1982 Respondent AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant JUDGMENT - RYAN J. Delivered the Fourth day of October, 1991. This is an appeal by the defendant by election from a judgment for the plaintiff for $535,511.31. The appeal seeks to have that judgment set aside and that in lieu thereof judgment may be entered for the plaintiff for such lesser sum as may be determined. The plaintiff's action was for damages for personal injuries and consequential loss and damage sustained by her as a result of the negligent driving of the defendant on 14 June 1980. She was at the time aged 33 years. She was struck on the right side by a motor vehicle as she walked across the street. As a result of her injuries, she received medical treatment for her back and incurred costs of such treatment. She claimed an impairment of her capacity to earn income by conducting and/or working in a shop, and damages upon the principle of Griffiths v. Kerkemever in respect to services of a domestic kind performed up to date -- 17 of 34 -- 2 of trial by her husband arid her younger daughter, and for similar services to be performed for the rest of her life. His Honour assessed damages for the plaintiff's injuries as follows : 1 . Pain, suffering and loss of amenities of life $85,000.00 2. Interest thereon on the sum 10 years at 6 per cent of $45,000 for 27,000.00 3. Past economic loss 40,000.00 4. Interest on that sum at the per annum for 10 years rate of 6 per cent 24,000.00 5. Future economic loss 45,100.00 6. Griffiths v. Kerkemever - value of past assistance 36,190.00 7. Interest on past assistance 10 years at 6 per cent - 21,714.00 8. Griffiths v. Kerkemever - Value of future assistance 71,368.00 9. Special (damages 54,733.31 10. Future hospital expenses 105,430.00 11 . Future medical expenses 8,921.00 12. Future medication costs 16,055.00 There was no challenge by the appellant to items 3, 5 and 9. It was agreed that there should be downward adjustment of the rate of interest which was allowed in respect to pain and suffering from six per cent to four per cent, having regard to the decision of the High Court in M.B.P. (S.A) Ptv. Ltd, v. Goaic . which was delivered in February, 1991, but that this should not affect the costs of the appeal. The appellant sought to attack the assessment of interest on past economic loss (item 4) on two grounds. One was that the allowance of interest on past losses over the whole of the 10 -- 18 of 34 -- 3 year period to trial was an erroneous exercise of the trial Judge's discretion. The other was that he failed to take account of the income actually received by the plaintiff. However, only the second ground was included in the grounds of appeal, and the appellant confined itself to that ground. The income received by the plaintiff subsequent to the trial was an invalid pension. Evidence was given by the plaintiff's husband that $452 per fortnight was received by him and his wife by way of a carer's pension and invalid pension. He .said he received half of this by way of a carer's pension, and the plaintiff got the other half as an invalid pension. On the basis of taxation returns by the husband, and assuming that the plaintiff received the same amount by way of pension as was received by her husband, it was submitted on behalf of the appellant that the respondent received an income by way of pension from the time of the accident until trial of $37,588. Accordingly, it was argued that interest should have been awarded only on the difference between that figure and the amount awarded to her by way of past economic loss namely $40,000. In Redding v. Lee (1983) 151 C.L.R. 117, it was said in the joint judgment of Mason and Dawson JJ., at p. 133 that:- "the legislature had indicated an intention that the grant of an invalid pension to an injured person is for the benefit of that person notwithstanding any common law claim for damages which he might have in respect of his injury and that the invalid pension payments are not to operate in relief of the liability of any person liable to pay those damages." The appellant did not seek to argue that this legislative intention had been changed by any amendments, and I assume that this is a statement of principle which must currently be applied. -- 19 of 34 -- 4 The question then is whether it precludes account being taken of income derived by way of receipt of an invalid pension, not only for the purpose of calculating the amount of pre-trial economic loss, but. also in computing the interest on past economic loss. Interest is awarded to compensate the plaintiff for the detriment that he has suffered by being kept out of his money: Batchelor v . Burke (1981) 148 C.L.R. 448 at p. 455. But in that case the consideration which led the Court to conclude that interest should not have been awarded on the portion of the damages representing earnings lost before trial but replaced by the payment of compensation was that expressed by Gibbs C.J., at p. 454, in these terms "The legislation has treated the payment of compensation and of damages in respect of any one injury as clearly related, and the fact that the lost earnings have been replaced by compensation paid under a statutory scheme whose very purpose is to provide money to take the place of the lost wages should be regarded when the court comes to consider whether a plaintiff has suffered any practical detriment by the loss of the earnings ." That is not however the position in the case of payment of an invalid pension. See Redding v. Lee (1983) 151 C.L.R. 117. Invalid pensions are, in the words used by Dixon C.J. in National Insurance Co. of New Zealand Ltd, v. Espaane (1961) 105 C.L.R. 509 at p. 573, "not provided in relief of any liability in others fully to compensate" the plaintiff. In my opinion, there can be / no relief from the liability of a defendant to compensate the plaintiff for being kept out of his money because he has received an invalid pension during the pre-trial period. In Haines v. Bendall (1991 ) 65 A.L.J.R. 349 the question was whether, for the purpose of computing interest, the amount of the -- 20 of 34 -- 5 respondent's pre-judgment non-economic loss should be reduced by the amount of a payment made under s . 16 of the Workers Compensation Act 1986 (N.S.W. ) . It was held by majority that the injury for which compensation was payable under s. 16 was an injury or loss for which common law damages were recoverable against a tortfeasor by whose wrongful conduct the injury was occasioned. The compensation paid served the same purpose as the award of damages at common law. It should therefore be taken into account in ascertaining the amount of interest to be awarded. There was nothing in that decision which cast any doubt upon the correctness of Redding v. Lee (1983) 151 C.L;R. 117 or Batchelor v. Burke (1981 ) 148 C.L.R. 448, and in my opinion they lead to the conclusion that interest on an invalid pension was not to be taken into account in assessing interest on past economic loss . In relation to the claim for damages under the Griffiths v. Kerkemever principle, His Honour observed that the only matter in dispute in the pre-trial period was whether she needed assistance for 20 hours per week, which was the amount for which she claimed. His Honour concluded that it would be reasonable to make an award on the basis that she might reasonably require domestic assistance beyond what could reasonably be required from her husband and daughter over the ten year period from the accident until trial for about one to one and a half hours per day, and allowed half the amount claimed. It was submitted that the learned trial Judge ought to have assessed past Griffiths v. Kerkemever damages at a much lesser sum having regard to the evidence that the plaintiff was -- 21 of 34 -- 6 self-sufficient or largely so during significant periods prior to trial. The plaintiff agreed that there were periods when the pain in her back was moderate, and there was evidence that the amount of help she required fluctuated to the extent that there were some days when she did not need help. His Honour made an assessment based on an average .over the ten year period, and there was evidence from the plaintiff, her husband and her daughter which justified that assessment. It was submitted for the appellant that in assessing the plaintiff's damages, the learned trial Judge ought to have discounted significantly for three factors. The first was her unrelated psychiatric condition. The second was the naturally occurring degenerative condition of her spine. The third was the anticipated improvement in the plaintiff after litigation. In relation to the second of these matters, evidence was given by surgeons that there was some very minor mild degenerative change prior to the accident in the whole of the lumbar spine, but the degenerative change from which she suffered, namely degenerative arthritis in the spine, was occasioned by the accident. The evidence as that the pre-existing degenerative changes were very minor, they should have remained minor, and were not the cause of any of her problems. In, view of this evidence, it was open to His Honour to ignore the pre-existing degenerative changes. There was evidence that the plaintiff had, prior to the accident, received some psychiatric treatment for reactive anxiety or depressive states following the death of her first husband and some marital problems which developed during her -- 22 of 34 -- 7 second marriage. A psychiatrist reported that "it is possible that Mrs. Camm has some hysterical personality traits which have tended to make her over-react to some aspects of physical disabilities, but I would regard this as part of the reaction of her personality to chronic pain and disability which has undoubtedly resulted from the motor vehicle accident of June 1980, and from the subsequent surgical procedures to which she has been subject". He thought that the conclusion of litigation after ten years would make no difference to her condition. Another medical expert a neurosurgeon thought that the conclusion of the litigation was not likely to have an effect on her to any marked extent. An orthopaedic surgeon said that her problem was a physical one. When asked whether the conclusion of the case would in any way affect the continuation of her physical disability, he replied "a little bit". His Honour observed that "a defendant must take a plaintiff as he finds him or her, and in this particular case the defendant has injured somebody whose psychological makeup makes it difficult for her to accommodate her disabilities and resulting incapacities ... whether the need for [her medical and hospital treatment] arises simply from her physical disability or the physical disability considered with a psychological-psychiatric overlay does not lead to any discounting of the sums claimed" . The evidence which I have summarised indicates that no discount was required. The damages for which the defendant was liable were not required to be reduced by reason of the psychiatric condition she had which made her over-react to the disabilities she experienced as a result of the accident. See -- 23 of 34 -- 8 Purkess v. Crittenden - (1965) 114 C.L.R. 164 at pp. 171-2. His Honour was entitled to make no discount for any improvement of the plaintiff after the litigation in view of the evidence of the psychiatrist and the other medical witnesses. It was submitted that the learned trial Judge erred in failing to properly evaluate and take account of the prospect of improvement in the plaintiff's condition following spinal surgery . The evidence by two medical experts, Dr. Yaksich and Dr. Keng, as summarised by His Honour was that the plaintiff's back condition which had led to three operations resulted from injury which she sustained when struck by the defendant's motor vehicle in June 1980. They had also concluded that the pain she suffered was caused by pressure on a nerve root. Dr Yaksich concluded that the cause of the pain was nerve root compression from scaring of the nerve root which for all practical purposes was incurable. He thought that the plaintiff might not have any further surgical procedures to her back. Dr. Keng concluded that the pressure on the nerve root did not result from any scarring which might still exist but from pressure applied by the spinal processes to the nerve root. He had concluded that there is a 60/40 chance of improving this medical condition by a spinal fusion operation. He conceded that there was a 30/70 chance of such procedure failing altogether and leaving the plaintiff in worse pain than she is at the moment. Dr. Keng stated that the plaintiff's present disability of the spine was between 40 and 45 percent and that it would be 30 per cent after an assumed successful spinal fusion. He said that for 60 per cent of -- 24 of 34 -- 9 persons who had a spinal fusion it was successful, for 30 per cent it was not successful, and 10 per cent remained the same. His Honour accepted the opinion of Dr. Keng in preference to that of Dr. Yaksich. He then said: "The acceptance of Dr. Keng for the purpose of this assessment in preference to that of Dr. Yaksich does not, it seems to me, have any significant effect on the plaintiff's award of damages. If she has a spinal fusion operation her chance of having her disability reduced by only one third will be twice that of having that disability significantly increased. This is not a happy choice for the plaintiff and indeed it is far from clear to my mind that she has determined to take the advice of Dr. Keng. Her final decision may very well be influenced by the opinion expressed by Dr. Yaksich that a spinal fusion operation will not relieve her of the pain from which she suffers in any event." The evidence of the plaintiff was that she had consulted medical practitioners about a spinal fusion, and that nobody could give her a guarantee that it would be successful or even a percentage of a chance of recovery. She said she had been told that her condition might worsen if she had one. She said that if she was not going to gain anything from it, she could not see any rhyme or reason in going through all the pain and suffering to come out of it possibly worse off than she was at present. Dr. Keng reported that in June 1989 the plaintiff had agreed to have a spinal fusion. There are two matters which require consideration. One is the likelihood that the plaintiff will have surgery. The other is the likelihood, if she does, that it will result in an improvement to her condition. On the first of these matters, His Honour made a finding which I interpret as meaning that he was not satisfied that the plaintiff had determined to have a spinal fusion operation. He did not however find that there was no -- 25 of 34 -- 10 chance or only a slight chance that she would have such an operation. On the second, he accepted the opinion of Dr. Keng that it was likely, if successful, to reduce her disability from 45 percent to 30 per cent. He seems, with respect, to have misinterpreted the evidence of Dr. Keng as to the likelihood of a successful operation. It was submitted for the respondent that it was wrong to assess the plaintiff's damages on the basis that no regard should be had to the prospect of successful surgery. Reference was made to Malec v. J.C. Hutton Ptv. Ltd. (1990) 169 C.L.R. 638. It was said in the joint judgment of Deane, Gaudron and McHugh JJ. at p. 643:- "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of these events occurring. The probability may be very high - 99.9 percent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 percent probability of occurring, but to ignore altogether a prediction which has a 49 percent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." In Davies v. Tavlor (1974) A.C. 207, the question was whether a wife who had separated from her husband was entitled to an award under the Fatal Accidents Act ( Lord Campbell1 s Act ) when he died in a road accident caused by the defendant's negligence. It was held that the test of a claim by a dependant under that Act was whether there was a reasonable expectation of pecuniary benefit from the deceased, which meant that in the case -- 26 of 34 -- 11 of a deserting widow who had forfeited any right to maintenance that she had to show that there was some significant prospect, as opposed to a mere speculative possibility, of a reconciliation with her husband had he lived. Lord Reid said (at p. 213):- "You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance" . In the instant case there was no evaluation of the chance that the plaintiff would have the operation. There is evidence that even if she had a successful spinal fusion she would be permanently unemployable, but the decrease in pain would be relevant to the assessment of her future medical and hospitalisation expenses and future assistance. The prospect of her having the operation would appear to be slight, in view of her evidence, but in my opinion some discounting should have been made for the prospect that she might in future have a successful spinal fusion. The failure to discount for the possibility that the plaintiff will undergo in the future a successful spinal fusion means that there was an error in principle which affects the judgment in relation to the assessment of damages for the post-trial period. Accordingly, this Court must make its own assessment In order to determine whether the compensation assessed is beyond the limits of a sound discretionary judgment. See Calder v. Bovne Smelters Ltd. (1991) 1 Qd.R. 325. If one examines the reasons given for assessing damages for pain and suffering, future hospital and medication expenses, and for future assistance, it is not possible, in my opinion, to -- 27 of 34 -- 12 conclude that they were excessive, apart from any question of discounting for the possibility of a successful spinal fusion. An assessment of damages in the amount of $85,000 for pain, suffering and loss of amenities of life occasioned by the accident which has led to her having had operations upon her back and being left with a severely disabled back is, I consider, within the limits of a sound discretionary judgment. In relation to future domestic care, His Honour considered that she would require domestic care for a period of 46 weeks of each year for the rest of her life, which he assessed as being for 30 years (she has a life expectancy of 36.86 years according to life expectancy tables), and that she would need this care for 10 hours per week, at $10 per hour. I can see no reason to question this assessment. I observe that medical evidence was given that even if a spinal fusion was successful, the plaintiff would still be able only to do what the doctor described as "minor things around the house". His Honour's assessment for future hospital and medical care was based on evidence that between 1981 and 1990 she had spent an average of more than 46 days per year in hospital. He estimated that in future she would need to spend 40 days per year in hospital seeking injections and other treatment for back pain; that she woui,d continue to require consultations with doctors which currently cost $11 per week, and that she would continue to require medication for 30 years. Once again, these amounts seem to me to be appropriate, if one takes no account of the possibility of a successful spinal fusion. -- 28 of 34 -- 13 Some discounting should, in my opinion, have taken place. The question then is whether the failure to do this led to a judgment which was beyond the limits of a sound discretionary judgment. In answer, the respondent contends that if some components of the award were overvalued, other components, and in particular past, and future economic loss, were far too low. His Honour assessed past economic loss on the basis of one third of the amount that would have been earned prior to trial by a shop assistant working full-time and future economic loss on the same basis for a period of ten years. His Honour rejected a calculation based upon what a chartered accountant estimated she would have earned had she worked in partnership with her husband conducting a corner store with her husband until age 55 or 60. She was aged 33 at the time of the accident and her husband was aged 53. He did so on the ground that it was inappropriate to calculate the income which would be earned by a little corner store which had been leased by the plaintiff and her husband only a few months before the accident by relying upon statistical evidence of sales by such stores, and also because the plaintiff and her husband had not intended to continue to run that store. He stated that the intention of the plaintiff and her husband had been to buy run down shops to improve their turnover, and then sell them for a capital gain. He concluded it was impossible to predict what the outcome of the plans of the plaintiff and her husband would have been in financial terms, and pointed out that in the year in which the shop was sold it was being conducted at a loss, which he thought was not attributable to the plaintiff's injury. The husband and wife had agreed that should one become -- 29 of 34 -- 14 physically disabled and unable to work the other would stop work and look after the disabled one. He thought that had it not been for her accident, and had she worked full time between the time of accident and time of trial as a shop assistant, she would have earned about $122,000, but he awarded her only one third of that amount. He thought that the maximum period which could be used in estimating the plaintiff's future loss was 10 years, when her husband would be 74 and she would be 54 years of age. He took the figure of $340 per week as the net wage of a shop assistant, and awarded her approximately one third of that amount on the ground that she had lost the capacity over the next 10 years to do the work of a shop assistant which she might have done from time to time. The calculation of economic loss in the circumstances was a difficult task. His Honour recognised that the approach he adopted of assessing the plaintiff's economic loss by having regard to the award wage applying to shop assistants suffered from the same defect as the alternative approach which he had rejected, namely that it ignored what the plaintiff and her husband had planned for the future. It was, however, an appropriate course in the particular circumstances of this case to take as the basis for calculation the net wage of a shop assistant, but I consider that the discounting of this by two thirds for the pre-trial period was not warranted. The result, in my opinion, was that there had been a too severe discounting in respect of past economic loss, and no discounting in respect of the possibility of a successful spinal fusion. On balance, I am not satisfied that the appellant has -- 30 of 34 -- 15 demonstrated that the learned trial judge erred in his conclusion on the total amount of damages appropriate to be awarded. Accordingly, I would vary the judgment so that the amount awarded is reduced to $526,511.31, but otherwise I would dismiss the appeal and order the appellant to pay the respondent' s costs of -the appeal to be taxed. -- 31 of 34 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2033 of 1982 Before the Full Court Mr. Justice Thomas Mr. Justice Ryan Mr. Justice Mackenzie BETWEEN: JANICE ANNE CAMM (Plaintiff) Respondent AND: PETER ROBERT SALTER (Defendant) AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant JUDGMENT - MACKENZIE J. Delivered the 4th day of October, 1991. Counsel: S. Williams Q.C. and C. Newton for Appellant. J. Griffin Q.C. and P. Darwin for Respondent. / Solicitors: Bradley & Co. for Appellant. Michael Sing & Associates for Respondent. Hearing date: 10th September, 1991 -- 32 of 34 -- IN tHE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN: AND: JANICE ANNE CAMM (Plaintiff) PETER ROBERT SALTER (Defendant) No. 2033 of 1982 Respondent AND: FIRE AND ALL RISKS INSURANCE COMPANY LIMITED (Defendant by Election) Appellant JUDGMENT - MACKENZIE J. Delivered the 4th day of October, 1991. I have read the reasons of Thomas J. and Ryan J. I agree that the appeal should be allowed by reducing the judgment to an amount of $526,511.31 but that otherwise the appeal should be dismissed with costs to be taxed. So far as the question of interest on past economic loss is concerned, I agree with the additional observations of Thomas J. with respect to the issues that require further elaboration for / the purpose of deciding, in an appropriate case where the evidence is sufficiently precise to allow meaningful consideration to be given, whether the evolution of social security legislation leads to a different view being adopted of invalid pensions from that taken in consequence of National Insurance Co. of New Zealand Ltd, v. Espaune (1961) 105 C.L.R. -- 33 of 34 -- 2 509 and Redding v. Lee (1983) 151 C.L.R. 117 and whether such evolution leads to the conclusion that the fact that such pensions have been paid should be taken into account for the purpose of calculating interest. Thomas J. has highlighted the inadequate nature of the evidence on the issue of the pension in the present case. I am not prepared to hold in all of the circumstances of the case that there was an appealable error in the learned trial Judge's treatment of interest. I agree with the orders proposed. -- 34 of 34 --