Suncorp Insurance and Finance v Kruger
[1997] QCA 190
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Suncorp Insurance and Finance v Kruger[1997] QCA 190
Suncorp Insurance and Finance v Kruger[1997] QCA 190
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4332 of 1996
Brisbane
[Suncorp Insurance & Finance v Kruger]
BETWEEN:
SUNCORP INSURANCE AND FINANCE
(Defendant by Election) Appellant
AND:
LISA JEAN KRUGER
(Plaintiff) Respondent
McPherson J.A.
Thomas J.
Lee J.
Judgment delivered 27 June 1997
Joint reasons for judgment of Thomas and Lee JJ. Separate reasons of McPherson J.A. concurring as to the order made.
APPEAL DISMISSED WITH COSTS
CATCHWORDS: NEGLIGENCE - DAMAGES - Whether plaintiff's evidence if uncorroborated by medical evidence can be accepted by trial Judge in determining ability to work - Meaning of "chronic condition" - Judgment not clearly broken into appropriate heads of damage - Whether compliance crucial.
DAMAGES - Whether plaintiff's evidence if uncorroborated by medical evidence can be accepted by trial Judge in determining ability to work -Meaning of "chronic condition" - Judgment not clearly broken into appropriate heads of damage - Whether compliance crucial - Error in assessment of past economic loss - Whether enough for Court of Appeal to interfere.
Gamser v. The Nominal Defendant (1976-7) 136 C.L.R. 145.
Elford v. FAI General Insurance Company Limited [1994] 1 Qd.R. 258.
Counsel: Mr K. Holyoak for the appellant.
Mr P. De Plater for the respondent.
Solicitors: Biggs & Biggs for the appellant.
O'Keefe & Mahoney for the respondent.
Hearing Date: 2nd May 1997
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4332 of 1996
Brisbane
Before McPherson J.A.
Thomas J.
Lee J.
[Suncorp Insurance & Finance v. Kruger]
BETWEEN:
SUNCORP INSURANCE AND FINANCE
(Defendant by Election) Appellant
AND:
LISA JEAN KRUGER
(Plaintiff) Respondent
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 27 June 1997
For the reasons given by Lee and Thomas JJ., I agree that this appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4332 of 1996
Brisbane
Before McPherson J.A.
Thomas J.
Lee J.
[Suncorp Insurance & Finance v Kruger]
BETWEEN:
SUNCORP INSURANCE AND FINANCE
(Defendant by Election) Appellant
AND:
LISA JEAN KRUGER
(Plaintiff) Respondent
JOINT REASONS FOR JUDGMENT - THOMAS and LEE JJ.
Judgment delivered 27 June 1997
This is an appeal from an ex tempore judgment of the District Court on 29th April 1996. The respondent claimed damages for personal injuries arising from a motor vehicle accident on 7th July 1993. Liability was admitted. Damages were awarded to the respondent in the sum of $116,788.70. This appeal is against that assessment of damages.
There are numerous grounds of appeal. Suffice to say that apart from a sum of $807.45 assessed for special damages (which was in accord with the appellant's submissions at the trial T.75), all other aspects of the award are the subject of challenge. The task of the parties and of the Court was not simplified by the approach of the learned trial Judge in his method of arriving at various components, some of which were included globally with others without clear statements as to how they were arrived at: Gamser v. The Nominal Defendant (1976-7) 136 C.L.R. 145 per Gibbs J. at pp.147-148, per Stephen J. at 149.
The respondent was 29 years of age at trial. She was born on 3rd April 1967 and was 26 years of age at the date of the accident on 7th July 1993. She was then four months pregnant but was working as a retail shop assistant in a store called "Gone Troppo". She suffered a whiplash injury to her cervical spine as a result of the motor vehicle accident.
On medical evidence which the trial Judge accepted, she sustained a permanent 10 per cent disability of the spine. He said it was "probably a soft tissue injury near to and above the many joints within her cervical spine." His Honour said that at the time of the accident the respondent was suffering severe pain in the back of the head, neck, shoulders and arms and that at the time of the trial, "those symptoms had improved but little", and were in character chronic. She continued to suffer headaches, neck and back pain which extended from time to time to her arms. His Honour said that "her lifestyle has been and will be adversely affected" and that "she has not been able to resume her employment due to difficulty and restriction caused by her symptoms, worsened as they have been by activity".
The sum of $27,500.00 was assessed as "appropriate compensation for all of the matters of damage so far mentioned". This included pain, suffering and loss of amenities, past and future, and "exceptional domestic assistance" in respect of which His Honour said, "were the value of that exceptional assistance rightly to be assessed separately, it, in a very uncertain assessment, would be worth perhaps $7,500.00". There was no apportionment of general damages between the period up to trial and the period after the trial. His Honour said that domestic assistance "continues now on a much reduced level with a value of perhaps $20.00 per week at present". The sum of $825.00 interest was added to the sum of $27,500.00. Special damages were assessed at $807.45.
In assessing past economic loss, His Honour appears to have based his assessment on her average net weekly earnings of $275.00 over the previous three years rather than on her then current pay of $175.00 net per week and allowed for no income during a period of three months "or perhaps a little more" when the respondent would have earned no income following the birth of her third child which was then due in about five month's time. This, His Honour said, produced sums between $35,300.00 and $40,000.00 for the period of about 2¾ years up to trial (less the three months). Having regard to "life's adversities or advantages or rates of pay changes or industry variations", including "increased employment opportunities during busy retail periods during fluctuating local tourist trading conditions", His Honour arrived at a sum of $37,500.00 as appropriate compensation to which he added the sum of $5,156.25 statutory interest.
As to future economic loss, His Honour said:-
"The facts proved to support predictions that the plaintiff will sustain damage caused by her July 1993 injury. Her disability is permanent. The restrictions caused by symptoms both as present and as increased by activity will continue. The acceptable expert evidence supports that prediction of strength that the plaintiff will be subjected to continuing symptoms for perhaps a life expectancy but with possibilities of improvement or some subsidence only in her later years or at some earlier distant but uncertain time. Predictable is both the continuing loss and later improvement of her earning capacity, that being a possibility. Predictable, too, are therapy and perhaps medication costs of a value of about $360.00 per year in contemporary currency value terms.
The plaintiff is now rising 30 years of age. Clearly her intention was to continue in the workforce. Clearly that was her desire. She continues to have need for exceptional assistance from time to time, that being necessary because of her intermittent needs for it, and is worth about, in contemporary currency terms, $30.00 per week, if one were to take an average. In a difficult assessment I have concluded that $45,000.00 is appropriate compensation for all aspects of that predictable expenditure and impairment of income earning capacity."
His Honour continued:-
"In a case such as this where there is possible a wide range of responsible predictions based on proved facts and proved expert opinions, resort to the statutory tables to be applied in cases such as this can only be but some guide. Of some value, but only as such a guide to the assessment lastmentioned, are two values able to be taken from those tables. One is that $272.00 per week for five years hence is worth now approximately $63,000.00; the second is that $100.00 per week for 10 years postponed for five years from now is worth a further approximate $43,500.00. Those sums, of course, must be heavily discounted to heed the wide range of possible predictions open upon the proved primary facts here."
All of the foregoing sums totalled $116,788.70 for which judgment was given in favour of the respondent.
Counsel agreed that the assessment for past assistance should be taken to be the sum of $7,500.00, which meant that the sum of $20,000.00 was awarded for pain, suffering and loss of amenities past and future. It was submitted by Counsel for the appellant that in arriving at the sum of $20,000.00, His Honour had misconstrued the evidence and the meaning of the term "chronic" used by Dr. Langley, and that his misapprehension of the evidence continued to manifest itself in his assessment of the various other components including past care, past economic loss, and future economic loss including the other two future components above referred to. The basic contention was that the respondent's condition had substantially improved by the time of trial, that her future prospects were very bright, and that she could have resumed employment after about two months based upon the evidence of Dr Morris.
It was submitted that an appropriate award for pain, suffering and loss of amenities was between $12,000.00 and $15,000.00, and that a separate assessment should be made for past care and assistance in the global sum of $2,500.00 to $3,000.00. It was further submitted that the assessment for past economic loss should not have exceeded the sum of $3,500.00, although it was conceded that if there was evidence on which the trial Judge could have found that the respondent was unable to work at all up to trial, and even assuming that the respondent would have earned an average of $276.00 per week rather than a lower amount of $175.00 per week she had recently been receiving, the most she could have earned was $35,880.00. This allowed for an estimated three months that the respondent was to be absent from work following the birth of her baby, but it was submitted that this sum should be subject to further discounting. It was contended that with contingencies, a sum of no more than about $25,000.00 could be awarded under this head, with an appropriate reduction in interest.
As to the future, it was submitted that an allowance of $1,000.00 would adequately compensate the respondent for future treatment for a period of about three years. It was also submitted that there should have been no allowance for future care and assistance and that a global sum of no more than between $5,000.00 and $10,000.00 should have been allowed for future lost earning capacity.
The respondent said she intended working right up to the birth of her third child and to go back to work about three months after the baby was born, which was what she had done previously. The day following the accident, despite her efforts to do so, she could not do her normal job and her symptoms became worse. Because of the pain she consulted Dr Pixley on 8th July 1993. His report Exhibit 1 states that on examination the respondent had pain on rotation in both the left and right sides of the neck and pain on extension of the neck but no pain on flexion. The paracervical muscles were tender in the region of C1, there was also some lumbersacral pain and pain in the parathoracical spine between T6-8 and also on the medial aspect of the scapula. He prescribed a cervical collar which she was to wear for 4 to 5 hours a day with the application of heat and massage. He did not see the respondent since that date and concluded that "the likelihood of minimal disability arising from the whiplash injury is high".
The respondent was seen by Dr Kate Downs, a general practitioner on 12th July 1993 with complaints of continuing neck and lumbar pain. Examination showed that she had a full movement of her neck and lumbar spine and neurological examination was normal. X-rays were not taken because she was then pregnant. Dr Downs was of the opinion that the respondent had suffered a wrenching injury to the ligaments of the neck which did not require treatment but would settle with time over about 3 to 4 months. Dr Downs last saw the respondent on the 22nd November 1993 at which stage her pregnancy was well advanced. Her lumbar pain had then resolved and she had intermittent neck pain which was not constituting a major disability. Dr Downs expressed the opinion that the respondent had suffered a ligamentous injury of the cervical and lumbar spine, and that no treatment but analgesia was required. There would be moderate pain for up to six weeks, thereafter decreasing in intensity over four months with no permanent disability likely. In evidence, Dr Downs said that her opinion was that the respondent was suffering from a very minor disability and thought that she would make a complete recovery without permanent disability. She said that the respondent's symptoms had improved between the first and last times that she saw her. She also agreed that the principal purpose of her seeing the respondent was do with antenatal matters.
The respondent nevertheless said that since the accident she had difficulty doing the housework and was unable to maintain her home the way she had done so. Some days she would be all right but other days she had difficulty lifting up pots and pans off the stove when her arms were numb and tingly. Some days she could not hang out the washing and suffered headaches. She could not do normal housework. She said her mother was doing her housework, cooking, washing and looking after her children and that continued at the rate of at least two hours per day. She said that by the date of trial her mother was still doing some cooking and cleaning in the order of 6 to 8 hours per week. The respondent's mother said in evidence that she provided 2 to 3 hours of care per day for a period of about 2 to 2½ years. In addition a neighbour Mrs Ewing said that commencing about one year prior to trial she had provided housework assistance for half an hour to one hour per day between 2 and 4 times per week, overnight babysitting on occasions, as well as walking the respondent's children to and from school and caring for them on occasions on some afternoons. She at times called to administer the respondent's medication.
The respondent was also seen by Dr Langley, an orthopaedic surgeon whose evidence the trial Judge accepted. Dr Langley saw the respondent on three separate occasions. The first was 23rd May 1994. The second was 16th March 1995. The final consultation was 4th March 1996. At the time of her first visit she tended to ache and noticed numbness in her elbows down to her hands. She had recurrent neck pain which radiated up into her head to her shoulders and down into her lower back. She experienced pain up to three times per week and it became worse when she tried to do such things as trying to lift her children or do any type of housework. In examination he discovered some slight reduction of movement of flexion extension, lateral flexion and rotation of the neck. Reflex, sensation, power and circulation in the arms was quite normal. His opinion was as follows:-
"My opinion would be that this lady sustained a cervical sprain in an accident. This would have involved the disc and passive joints and possibly the soft tissues around these areas in her neck. She has been left with some ongoing chronic symptoms at this stage. It is now 10 months since the accident occurred and often up to a third of cases will still have ongoing symptoms at 2 years from the time of the accident. Yet I suggested to her that the best treatment would be to undertake a course of physiotherapy to help with her problems and exercise programme to follow it up. If she is prepared to do this then her symptoms may settle to some extent.
In her case I feel there will be some ongoing chronic symptoms. She has suffered some ongoing pain and suffering and it is likely that her convalescent period will be fairly prolonged and protracted. The severity of her symptoms should slowly settle over the ensuing month. She should be reviewed in approximately 9 months time when a good assessment of any permanent disability could be given."
Following this visit, and apparently on Dr Langley's advice, the respondent commenced having physiotherapy and later commenced manipulative treatment with Dr Fothergill. She had about seven treatments in all of massage and manipulation by the time of the trial. Manipulations occurred about three times per year as the trial Judge found. The respondent said that this improved her for a period but then gradually got worse with the result that she again experienced considerable pain. She said that she was doing most of her own cooking and cleaning, obviously after a period of treatment which had improved her. She said that when the pain redeveloped she resumed taking tablets and once again she was unable to continue doing any housework. This accords generally with the trial Judge's findings in this respect.
Following the respondent's second visit to Dr Langley on 16th March 1995, Dr Langley prepared a report of 20th March 1995. He indicated that she still had somewhat similar symptoms. He advised the respondent that she was suffering from a cervical strain and now had chronic symptoms. He said that her condition was fairly static and stationary at that stage and that she was having ongoing problems with neck pain and headaches. He said it was unlikely that there would be any great improvement. He suggested a three week course in physiotherapy and traction and mobilisation of the spine and an exercise program. He concluded:-
"However, her ongoing problem with her neck will most likely persist as it is now approximately 18 months since the accident occurred and she therefore has an ongoing permanent impairment as far as her spine is concerned and I would rate that at 10 per cent."
In his final report of 5th March 1996, he referred to the manipulations done on her neck since his last examination as well as the exercise programme. He said that she told him that her medication had been reduced and she was now walking and swimming to help with her problem and she felt that it had improved approximately 50 per cent. She experienced difficulty in playing with the children, or with repeated bending or any lifting. She also experienced problems when looking up and still complained of pain in the same areas. Dr Langley's examination revealed constant pain in the area of the neck although the severity had reduced. There was restricted movement of flexion and extension, left reflexion and rotation. The flexion was reduced by nearly half, extension by nearly one-third, lateral flexion by one-third and rotation by one-half. This had caused ongoing problems in the respondent's neck. His opinion concluded as follows:-
"This lady had an injury to her neck and lower back in an accident on 7 July 1993. She still has some ongoing problems but her pain is much improved according to the patient. In my assessment of her impairment to her neck is that she has a 10 per cent impairment to the spinal region and this will be permanent. She will not require any operative treatment for her condition. Her life expectancy will not be reduced as a result."
When asked in evidence that he had mentioned in his report that there had been improvement by approximately 50 per cent, he promptly said that he did not say that but merely reported that the respondent had told him that she felt it had improved by 50 per cent since her previous visit. He confirmed the contents of his reports and said that the respondent had chronic symptoms. He concluded that the spine was not as good as it was before the accident. He confirmed that the manipulative therapy the respondent had undergone was recommended but that it would not be surprising that it had to be repeated from time to time because it was capable of being a relief for a period of up to four months or so. His evidence continued:-
"Question: Are you able to predict for how long that is likely to continue?-- Well, I am not the fellow upstairs but I know in these cases if you follow them up over a period of years and I have been following some up for 10 or 12 years. The majority of them once they become chronic and they become chronic after about 6 months from the time of the accident, if they are still having symptoms then they will go on having it for some years, even 10, 12 probably even a lifetime.
Question: Yes ---?-- Then again a large majority of them will get better and feel well. And I do believe that there's probably something in the fact that it depends on how well they applied themselves to the physiotherapy and the exercise programme they're given."
In cross-examination he said that he tended to measure the degree of movement in the respondent's neck by an electronic inclinometer which gave a fairly accurate assessment so that his opinion was not based solely on what the respondent had told him. He agreed that between the visits in May 1994 and March 1995, there had been some improvement. He also said that if there is going to be a return to normal, this often occurs in the stage about 18 months to 2 years after the incident, but that if there was not, patients were usually left with chronic symptoms. He said the bad period is usually in the six month to 18 month period and he interpreted the respondent's statement that she felt improved by about 50 per cent to be the overall improvement she felt from the time of her accident. He said the symptoms then plateau and tend to stay much the same. He said that a person in the position of the respondent would tend to have more chronic symptoms and that those symptoms tend to persist for a longer time.
Dr John Humphrey Morris, orthopaedic surgeon prepared a report for the defendant, Exhibit 5. He saw the respondent on 24th November 1995 for only about 10 to 15 minutes. He noted that the respondent complained of slight pain on rotation but he concluded that rotation was at least 80 degrees. X-rays of the thoraco lumbar spine taken 5th September 1995 showed no abnormality of the thoracic spine but there was some slight narrowing of L4-L5 and L5-S1. His opinion was as follows:-
"Lisa Kruger was involved in a motor vehicle accident. She suffered a muscular ligamentous injury to the cervical spine. She appears to have quite a degree of pain which appears to be continuing. Her range of neck movement was basically full so her documented disability according to the Guides to Evaluation of Permanent Impairment by the AOA and less than 2 per cent. I would think that her symptoms should improve over the next year or two and she should not be left with any serious, permanent disability but she may have a slightly increased risk of degenerative changes in 20 to 30 years time."
In evidence he expressed the view that whilst pain was subjective, he thought the respondent could have worked as a shop assistant and this may have helped her. He said that after a muscular ligamentous injury of the type suffered by the respondent, the usual pattern would be to have a month of acute pain which would be fairly constant although it could endure for a bit longer, and during that time the respondent would not be able to do any work. Then the usual pattern is for the pain to become intermittent and clear sometimes once every two or three days, and other times a bit less, and that could go on for about six months to a year when such people usually get pain only when they move their heads rapidly. He expressed the view that she would have been able to return to work in two months. He also said that to have a disability of 10 per cent of the spine, a degree of restriction in movements to the neck would probably be very marked.
In cross-examination, he affirmed his view that the respondent's symptoms should improve over the next year or two after trial and agreed that the respondent was not falling into what he regarded as the accepted pattern. He agreed that manipulative therapy was appropriate if the respondent considered it helped her. The respondent said that at the time she saw Dr Morris in the November 1995, she had just completed a course with Dr Fothergill and was then feeling the best she had felt for a long time but that subsequently her neck and back pain started playing up again.
It was submitted for the appellant that the term "chronic" as used by Dr Langley meant no more than that the pain persisted for longer than normal and that it did not mean that it would be permanent. It was said that even on Dr Langley's own evidence in the context of the history as reported in the reports of Drs Pixley and Downs, His Honour misapprehended the severity of the injury. It was said that the assessment of 10 per cent disability of the spine was unsustainable and that Dr Langley recorded that the respondent had told him that she had felt an improvement by 50 per cent at the time of the last visit in March 1996 just before the trial. Dr Langley in his final report did say that the severity of pain had reduced but was still present.
It was also said that His Honour erred in not finding any period into the future when pain and discomfort which the respondent still suffered would be likely to persist. It was submitted that the period would be no longer than 3 to 4 years at the outside. Reliance was also placed on the fact that Dr Langley had said that a large majority of plaintiffs will get better.
It may be accepted that the respondent's symptoms had improved somewhat at the time of Dr Langley's last examination but nonetheless symptoms still persisted which Dr Langley had described as "chronic". Indeed, he forecast chronic symptoms on her first visit on 23rd May 1994 and confirmed this on the two later visits and in oral evidence. Dr Morris also said that she experienced pain so it was not in dispute that the respondent did in fact have some residual disability at the time of trial. Dr Morris' forecast however was more optimistic, saying that "her symptoms would improve over the next year or two".
The respondent's statement that she said she felt 50 per cent improvement on the occasion of the last visit to Dr Langley, was inexact. She also said that she felt better for some period after manipulative treatment but the pain resumed. Dr Langley was at pains to say that he did not conclude that the respondent was 50 per cent improved but rather, this was merely what she had said to him. It will be recalled that he measured the restriction to the respondent's neck and spine by an instrument and did not rely entirely upon what the respondent had told him although His Honour concluded that the respondent was a truthful and reliable witness.
Whilst His Honour did not specify a period into the future when the respondent's symptoms would persist, His Honour was not bound to accept only the most optimistic outcome if he felt that was not warranted. Dr Langley said he had been following persons with similar type injuries for up to 10 to 12 years and concluded that the majority of them, once they had become chronic and if they are still having symptoms will go on having them for years, even 10, 12 or possibly even a lifetime. Dr Langley's comments that a large majority of them will get better and feel well did not mean that His Honour had to adopt that particular approach. His Honour was entitled to accept the evidence of Dr Langley that there was a substantial chance that the respondent would never recover from her injury, which does not mean that the respondent would never recover, only that there was a high chance that this would be so. As indicated, His Honour concluded that the 10 per cent disability to the spine was permanent. There was also evidence from Dr Morris of an increased possibility of degenerative changes. No demonstrated reason has been shown why this Court should interfere with the award of $20,000.00 for pain, suffering and loss of amenities. Had His Honour taken the view that her disability and pain would last for her lifetime, with little prospects of improvement, the award would have been much higher.
The challenge to the $7,500.00 apparently awarded for past care was based primarily on the ground that the respondent had not shown a real need for past care and assistance to the extent allowed for. It was conceded that the respondent was entitled to recover for actual assistance required and not merely for any extra assistance after taking into account what the caregiver would ordinarily have done: Van Gervan v. Fenton (1993) 175 C.L.R. 327; Chandler v. Bailey (C.A. Nos. 2 and 5 of 1994, unreported; Kars v. Kars (1996) 71 A.L.J.R. 107.
Although the lack of specificity in His Honour's reasons make the analysis with respect to past care somewhat speculative, if the accepted amount of $7,500.00 is taken over 2¾ years between injury and trial, that amounts to an allowance of a little over five hours per week at the agreed rate of $10.00 per hour. Given that no real basis had been shown for interfering with His Honour's finding as to the extent of the respondent's pre-trial need, based upon the respondent's evidence and that of her mother and Mrs Ewing's, an award that allows for marginally more than 5 hours per week cannot be shown to be excessive. The evidence shows that the respondent in fact received assistance for considerably more than 5 hours per week taken on an average over the whole period. The sum of $7,500.00 for past care cannot be seen to be excessive.
As to past economic loss, the respondent was working on a part-time basis at the date of the accident. She said that at that time and for about three months previously, her employer was experiencing quiet periods and she agreed to reduce her hours but that there was to be return to a full-time position about three months prior to Christmas 1993. The work apparently fluctuated with the seasons. It was submitted for the appellant that the only expert who gave evidence as to when she could have returned to work was Dr Morris who said she could have returned in about two months. Dr Langley did not specifically address this aspect. However, he said that the respondent would be well advised not to do any heavy lifting which may irritate the problem that she had. The respondent said that she could not return to work but had not attempted to do so, and had not applied for any other employment. It was submitted that the respondent's apprehension that she was not ready to go to work was unacceptable and that should be viewed objectively. This is not the correct test. The question is what was reasonable for this particular respondent.
The respondent said that she could not return to work and had not attempted to do so. She said she did not consider she was able to perform the tasks involved. It is erroneous to submit that unless a respondent's evidence is corroborated by medical evidence, the respondent's evidence should not be accepted: see Gaudrey v. Pacific Cole Pty Ltd (C.A. No. 268 of 1995, 20th December 1995, unreported). Unless her evidence is totally at odds with the medical evidence, which on a true analysis it was not, the learned trial Judge was perfectly entitled to accept her version that the work she was doing as a shop assistant at the shop "Gone Troppo" such as taking T-shirts and the like from the store to the shelves, displaying them to customers and selling them, and stacking items on shelves, would be no different in kind to the type of work she would ordinarily experience at home. She said that she had difficulty in doing many items of housework and the trial Judge was entitled to conclude that her view of her inability to perform work was a reasonable one.
As indicated, Counsel for the appellant contended that the evidence supported an assessment of past economic loss up to the birth of her child on 16th December 1995 or about 20 weeks at $175.00 per week giving a sum of between $3,000.00 and $3,500.00. He conceded that if this submission was rejected, and if it was held that the evidence supported the finding of an inability to work, an assessment based on 2½ years or 130 weeks between the accident and the trial at the average figure of about $276.00 per week would result in the absolute maximum of $35,880.00, which should be further heavily discounted. It was said that this alone demonstrated that the figure of $37,500.00 was excessive. It was submitted that the accepted approach was to discount $35,880.00 by about 25 per cent to allow for adverse contingencies, notwithstanding that contingencies to the respondent's advantage should also be taken into account. If this approach was adopted, the figure of $35,880.00 would be reduced by about $9,000.00 only. As indicated, Counsel for the appellant submitted that a figure of $25,000.00 would have been more appropriate.
Counsel for the respondent submitted that it was appropriate to calculate economic loss on the basis of $275.00 per week as the average of the weekly wage over the previous three years. This indicated a fairly substantial continuous employment. There is no reason for the purpose of past economic loss not to act upon the average figure over the previous three years, which it seems was the approach adopted by the trial Judge.
It was also submitted for the respondent that the period of 2¾ years between the date of the accident and the trial should be reduced for the period when she was absent following the birth of her third child, giving a net 2½ years or 130 weeks. At $275.00 per week, this produced a sum of $35,750.00. However, it was conceded that for the first 13 weeks of that period the respondent should continue at the reduced rate of $175.00 per week before she was restored to the full rate of $275.00 per week, when the business picked up. This involved a reduction of 13 weeks at the difference of $100.00 per week, or $1,300.00, resulting in a net figure of $34,450.00. It was contended that when the respondent's evidence was taken into account, that prior to her duties being reduced, her net weekly pay was about $350.00 to $360.00 per week, as well as the net pay evidenced in Exhibit 13 of higher weekly wages than $275.00, the global assessment of $37,500.00 was appropriate.
The averaging of $275.00 per week may tend to cancel out to some extent the upward contingencies, but it would appear to be reasonable that some additional allowance should be made overall for downward contingencies such as standing down again for lesser hours if the business conditions justified that course, or perhaps an increased period off work following the birth of her child as the trial Judge recognised as a possibility, or illness or any other factors that the respondent may have experienced in any event. The allowance of $37,500.00 for past economic loss would appear to be excessive. A figure of about $30,000.00 would have been more appropriate.
Had a sum of $30,000.00 been awarded, interest would be less. The sum of $5,156.25 for interest is equivalent to 5 per cent per annum for 2.75 years calculated on the sum of $37,500.00. When calculated on the reduced figure of $30,000.00 interest would be reduced to about $4,125.00. Whether the reduction of $7,500.00 plus $1,031.00 reduction of interest totalling $8,531.00 is sufficient discrepancy to justify the disturbance of the entire award is another question, depending upon the total award.
The final attack was on the award for future economic loss, assistance and medication. The difficulty in approaching this particular portion of the assessment stems from the fact that the learned trial Judge did not separately indicate how each component was arrived at, nor did His Honour find any particular period into the future during which the respondent would be unable to work or would need treatment and assistance. The approach to this assessment can only proceed on the basis of certain assumptions.
The appellant's submissions were similar to those in relation to pain, suffering and loss of amenities and past economic loss, namely that the respondent was able to work and did not require assistance as a result of her injuries. It is true that there was some inconsistency with His Honour's statement that she would need future assistance to the extent of about $30.00 per week when His Honour had previously said that as at the date of trial, the extent of assistance was worth $20.00 per week. It was submitted that no allowance should be made for future care at all because the respondent was coping on her own without assistance.
However His Honour was of the view that she needed some assistance in the future. In view of His Honour's findings as to the nature of the respondent's condition which he said was persisting and would persist into the future, and her evidence and that of her mother as to assistance provided, it cannot be said that it was unreasonable for the respondent with continuing pain in the region of the neck and shoulders to require assistance in the order of about 2 to 3 hours per week. If $20.00 per week was allowed for say only three years, the present value would be about $4,000.00. If this was about the sum allowed, it was certainly not excessive. An allowance for a longer period could be justified, possibly for up to 12 years if one of Dr Langley's forecasts had been acted upon. That would have amounted to about $9,500.00.
It was then contended that no more than about three years should be allowed for future therapy and medication costs amounting to about $360.00 per year or about $7.00 per week. The medical evidence of both specialists indicated that manipulative and associated treatment was beneficial. The present value of such a sum for three years would be a little over $1,000.00, which was the amount contended for by the appellant. However, Counsel for the appellant conceded that on one view of Dr Langley that her symptoms could persist for 10 to 12 years or even a lifetime, it would not have been unreasonable to allow the sum of $360.00 per year for about 12 years (T.13), or about $3,300.00.
As to future lost earning capacity, His Honour considered that the respondent's options in the workplace would be permanently restricted although not excluded as a result of her injuries. She was aged 29 at the time of judgment and it could reasonably be expected that she would have worked until aged 60. If the sum of $45,000.00 was attributable solely to lost earning capacity, and if it was discounted at 5 per cent over 30 years, this would result in a weekly sum of approximately $55.00. When deduction is made for assistance and medical costs, allowance for economic loss would be insignificant. On the other hand, the sum of $45,000.00 if attributable only to lost earning capacity, represents the present value of $272.00 per week for only a little over three years. If an assumed award of about $5,000.00 was deducted for assistance and medical costs, the remaining sum of $40,000.00 for lost earning capacity would represent $272.00 per week for only three years. From His Honour's remarks, it appears that he had in mind the sum of $272.00 per week for five years, but heavily discounted. If a greater sum say $12,800.00 was allowed for assistance and treatment, the remaining sum of $32,200.00 would represent $272.00 per week for only about 2 to 2½ years.
His Honour did not in his assessment, misapprehend the degree of chronicity or what the respondent's chronic symptoms entail. His Honour had due regard to the evidence and accepted that of the respondent and Dr Langley. Had His Honour found that the respondent's symptoms as at the date of trial would be likely to continue unabated for a lifetime, with a permanent inability to earn income, the award for the future economic loss comprising all three components (as well as general damages) would have been significantly higher. The award does not reflect an assessment on the basis that the respondent could not work until she was aged 60. Nor by any combination of estimates for future care and future treatment, could it be said that the sums allowed for those components were based on a permanent need demonstrated by the respondent. Overall, it might be thought that His Honour's award for future economic loss, consisting of all of those components, was moderate, having regard to his comments in his judgment (T.174), that the respondent's case and future economic loss was put carefully "if not very conservatively".
In the result, the only element of the award which was somewhat high was the award for past loss of income. On the calculation referred to above, this, including interest, would be no more than about $8,531.00, and this is perhaps notionally offset to some extent by the conservative award for future economic loss.
Having regard to the various components that His Honour allowed in the totality of the award, no sufficient error is disclosed to justify this Court in interfering with the amount awarded (cf. Elford v. FAI General Insurance Company Limited [1994] 1 Qd.R. 258). Accordingly the appeal must fail. The appeal should be dismissed with costs.