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- Unreported Judgment
Kate Ann Sutton v Lauren Nicole Hunter QSC 249
SUPREME COURT OF QUEENSLAND
Kate Ann Sutton v Lauren Nicole Hunter  QSC 249
KATE ANN SUTTON
LAUREN NICOLE HUNTER
ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850)
District Court at Southport (transferred on 6 September 2021)
7 October 2021
6, 7 & 8 September 2021
PERSONAL INJURY – PERSONAL INJURY LAW MANUAL QLD – CIVIL LIABILITY ACT – INTRODUCTION – ASSESSMENT OF DAMAGES FOR PERSONAL INJURY – ECONOMIC LOSS – GRUITOUS SERVICES – GENERAL DAMAGES – Where woman was involved in a car accident – Where woman suffered minimal physical injury – Where the woman’s dominant injury is Post-Traumatic Stress Disorder – Where second defendant insurer admits liability – Where only quantum is in issue – Whether Ms Sutton is entitled to general damages – If so, what should be awarded – Whether Ms Sutton is entitled to loss of earning capacity – If so, what should be awarded – Whether the Vincents Report is admissible – Whether the Hays Survey is admissible – Whether Ms Sutton’s claim should be dealt with as a global award – Whether Ms Sutton was entitled to past and future economic loss.
Mr C Newton
Mr R Morton
- The plaintiff, Ms Kate Sutton, was injured in a motor vehicle accident on 15 February 2015 at Mudgeeraba. Another vehicle, driven by the first defendant, collided with the rear of Ms Sutton’s vehicle. The impact was significant. Both vehicles were written off.
- The second defendant insurer, Allianz, admits liability. Only quantum is in issue. The principal quantum issues are general damages, loss of earnings and earning capacity, and compensation for gratuitous service provided by Ms Sutton’s husband.
- The Civil Liability Act 2003 (Qld) (the ‘Act’) and the Civil Liability Regulation 2014 (Qld) (the ‘Regulation’) circumscribe awards of general damages. The Act requires that an injured person’s total general damages must be based on an injury scale value (ISV) on a scale of 0 to 100. That scale operates from, at one end of the scale, a case in which an injury is not severe enough to justify any award of general damages to, at the other end of the scale, a case in which the injury is of the gravest conceivable kind. In assessing the ISV the court is required to assess the ISV under any regulations and to have regard to similar injuries in previous proceedings.
- Whilst Ms Sutton suffered some other injuries, mainly soft tissue injuries, her ‘dominant’ injury is post-traumatic stress disorder (PTSD).
- Schedule 4 of the Regulation gives a range of ISVs for different types of injuries. For example, for mental disorders the ranges are:
Item 10 Extreme mental disorder – 41 to 65
(a mental disorder with a PIRS rating between 31% and 100%)
Item 11 Serious mental disorder – 11 to 40
(a mental disorder with a PIRS rating between 11% and 30%)
Item 12 Moderate mental disorder – 2 to 10
(moderate impairment in a mental disorder with a PIRS rating between 4% and 10%)
Item 13 Minor mental disorder – 0 to 2
(for many persons who have suffered this type of injury there will be little or no impact on their lives – a mental disorder with a PIRS rating between 0% and 3%)
- It can be seen that those categories refer to PIRS ratings. That is a reference to Schedule 5 of the Regulation which specifies how Psychiatric Impairment Rating (PIRS) ratings are calculated. Schedule 6 of the Regulation sets out rates of permanent disablement caused by a mental disorder. The PIRS consists of six scales, each of which rates permanent impairment in an area of function. Each of the six scales has five classes of impairment, ranging from little or no impairment to total impairment.
- The assessment of PIRS ratings is a matter of assessment for medical experts.
- In 2016, Dr Chung gave Ms Sutton a 6% PIRS score. In 2019, Allianz’s expert psychiatrist, Dr Chalk, also gave Ms Sutton a PIRS rating of 6%. In 2020, Ms Sutton’s treating psychiatrist, Dr Lotz, assessed the plaintiff as having a PIRS rating of 15%.
- The differences in the PIRS scores are related to the view the medical experts take of the degree of functional impairment suffered by Ms Sutton in her ordinary activities. Thus the PIRS rating forms attached to each of the reports of the expert psychiatrists can be summarised by the following table:
Class – Dr Chung – 9 Aug 2016
Class – Dr Chalk - 10 July 2017
Dr Chalk – 17 July 2019
Class – Dr Lotz – 6 March 2020
Self-care & personal hygiene
Social & Recreational Activities
Concentration, persistence & pace
- That table shows that the differences in the medical opinions centre on 3 categories: social and recreational activities, social functioning and adaption/employability.
- As to social and recreational activities, the degrees of impairment listed in Schedule 6 show that a score of 2 (mild impairment) is appropriate where the injured person ‘occasionally goes to social events without needing a support person, but does not become actively involved, for example, by dancing or cheering a team.’ A score of 3 (moderate impairment) is appropriate where the injured person rarely goes to social events, and usually only when prompted by family or a friend, does not become involved in social events, and/or will not go out without a support person.
- Dr Lotz portrayed Ms Sutton as quite impaired socially. He said:
Ms Sutton has become socially reclusive. She used to enjoy an active social life, cooking for friends, having dinner parties etc. Now she does not bother cooking, she is effectively housebound and most of her friends have drifted away. She is dependent on her husband, and uses her children as a safety blanket for her own sense of insecurity.
- Later Dr Lotz described Ms Sutton as a prisoner in her own home.
- Dr Chung reported that Ms Sutton had told him that she avoided social situations.
- Dr Chalk’s report also records a social impairment but in less severe terms than Dr Lotz. Dr Chalk’s report of 10 July 2017 speaks of Ms Sutton now having some contact with her friends. Dr Chalk’s PIRS table includes this remark adjacent to the category ‘Social and Recreational Activities’: ‘This lady is no longer avoiding all social activities but certainly prefers to stay at home though her contact with friends does appear to have increased in recent times.’
- In his 2019 report Dr Chalk notes that Ms Sutton has, over time, lost friendships and that, whilst she is not as depressed as she was, she becomes markedly anxious and experiences panic attacks when leaving home. Dr Chalk reports Ms Sutton as being less socially active than she was and as not going out without her husband and as remaining significantly socially avoidant. Ultimately, Dr Chalk ‘scores’ Ms Sutton as 3 (moderate impairment) for this category, a more serious impairment score than his prior score of 2 (mild impairment).
- All experts scored Ms Sutton as a 3 (moderate impairment) for ‘travel’. That seemed to be based on Ms Sutton’s anxiety in relation to road travel. However, since the accident, Ms Sutton has travelled overseas twice, to Bali and Vietnam.
- Another difference between the experts relates to the category of ‘Social Functioning’. Dr Chalk’s 2017 report attributed a score of 1 (little or no impairment) to Ms Sutton. His 2019 report altered that score to 2 (mild impairment) which is consistent with the reports of Dr Chung and Dr Lotz as well as the ‘Area of functional impairment: social functioning’ in Schedule 6.
- The principal difference between the experts is in the category of adaptation/employability. Dr Chung, and Dr Chalk in both of his reports, scored Ms Sutton at 2 (mild impairment) for this category. Dr Lotz allocated a score of 4 (severe impairment) for this category. The Schedule 6 guide for this category is as follows:
Level of Impairment
Examples of indicators of level of impairment
Percentage impairment ranges
Little or no impairment
needs constant supervision and assistance within an institutional environment
more than 60%
- The court is required to have regard to those examples under s 4(3)(a)(i) of Schedule 5. But there is an element of artificiality in comparing this situation with those examples because they assume a ‘pre-injury position’. Here, Ms Sutton’s ‘pre-injury positions’ were varied and pre-dated the accident by more than a decade. The examples also assume a static situation (for example, that the injured person is only able to work less than 20 hours a week), when the injured person’s capacity for work may improve or deteriorate. That said, whilst it is a blunt instrument, it is necessary to have regard to those examples and to try to assess where Ms Sutton fits.
- Dr Chalk’s opinion is that: ‘This lady is not working. I am of the view that she could return to some form of gainful employment, at least up to 20 hours per week.’ On the other hand Dr Lotz simply notes: ‘Unable to be employed’. Dr Chung’s 2016 report noted: ‘Severe anxiety prevents her from leaving home without her husband. Does most of the housework and child care although interest and motivation in her day to day tasks has decreased.’
- Of course, it is difficult to choose between the opinions of experts, not least because the court does not possess psychiatric expertise. On balance, my preference is for the views of Dr Chalk. It seems to me that Dr Lotz’s views are likely to be too pessimistic. Ms Sutton impressed as a witness. She appeared capable and intelligent. I agree with Allianz’s submissions that there is some prospect of improvement. It would be surprising if she were not able to be employed in at least a part-time capacity. It is true that her anxiety about road transport may narrow her employment choices, and transport to work may be a challenge. But it seems to me that, once the litigation has resolved, Ms Sutton was more likely to conform to the ‘mild impairment’ examples rather than the ‘severe impairment’ examples.
- There are some (interrelated) factors that support that preference for the more optimistic evidence of Dr Chalk.
- First, Dr Lotz’s dismissal of the idea of Ms Sutton working again was not explained in his report. In the PIRS rating form Dr Lotz simply noted: ‘Unable to be employed’. In the body of his report, Dr Lotz said: ‘[i]n my opinion, Ms Sutton’s psychological symptoms have prevented her from maintaining any other employment and I do not believe she will be able to return to any other employment.’ Only when it came to his oral evidence did Dr Lotz provide something of an explanation for his view that Ms Sutton would not be able to return to employment:
…my opinion is that Ms Sutton can’t work at all, regardless of the fact that she wasn’t working at the time of the accident, but if she were now to be, for example, having to go back to work, she would be a desperate liability to any perceived – potential employer. She would have problems with concentration, she would be irritable, she would have problems with anxiety, confidence, to say nothing of the potential of not being able to commute to work. So if we add all that up, she is basically unemployable.
- Dr Chalk’s opinion that Ms Sutton is likely to return to part-time work is also not explained in any detail. However, having regard to my positive impression of Ms Sutton as a witness, I am more inclined to accept Dr Chalk’s opinion. Further, having regard to that impression of Ms Sutton, I am reluctant to accept a conclusion that, by reason of the accident, Ms Sutton will be unable to be employed in any position for the rest of her life. Certainly, there was no specific evidence from an occupational therapist or other health professional to the effect that Ms Sutton was incapable of any gainful employment for the foreseeable future.
- Second, much of the evidence tendered on behalf of Ms Sutton was directed to establishing that the accident and the resulting PTSD had had a significant effect on Ms Sutton’s enjoyment of social interaction. Examples were given of two unsuccessful social events – a Melbourne Cup function and a birthday party. However, there was no evidence that those were the only social events attempted. And, it is difficult to draw any sensible parallel between those functions and employment. The environment in a small office hardly resembles that of a Melbourne Cup function. In short, whilst I can readily accept Dr Lotz’s evidence, and Ms Sutton’s own evidence, that Ms Sutton is now more introverted than she was prior to the accident, that does not demonstrate an inability to be employed. There are, no doubt, many introverts in many workplaces.
- Third, employment does not necessarily involve attendance at a workplace. Some types of work can be carried out at home. Indeed, Mr Sutton works from home.
- Fourth, Ms Sutton has been able to home-school her children. One of her children has Asperger’s syndrome. That home-schooling is likely to have been a significant undertaking.
- Fifth, as noted above, Ms Sutton has travelled overseas twice since her accident. Certainly, those trips were with the assistance of her husband and the Bali trip involved a trip to a ‘healer’ (whose treatment was unsuccessful). Even so, the fact that Ms Sutton embarked on those overseas journeys suggests a more optimistic outlook than Dr Lotz was prepared to entertain.
- Sixth, it is true that the fact that Dr Lotz was Ms Sutton’s treating psychiatrist is not a reason for doubting his evidence. That said, Ms Sutton’s counsel rightly conceded that one problem with calling a treating psychiatrist as an expert is that there can be a conflict between the expert saying the right thing for the patient and the giving of objective expert evidence. Allianz’s counsel also expressed the issue in this way: ‘there are reasons to be cautious of an assessment by a treating psychiatrist because of the necessity to maintain a therapeutic relationship with the plaintiff.’
- There were, as Ms Sutton’s counsel explained, specific reasons for calling Dr Lotz. Indeed, Ms Sutton’s counsel contended that the court ought to prefer the evidence of Dr Lotz because he was treating Ms Sutton on an almost monthly basis. However, in my view, Dr Chalk’s disinterested independence was a reason for giving his evidence some weight, particularly in light of the possibility, mentioned above, that Ms Sutton and Dr Lotz focussed on the social impairment effects of the accident on Ms Sutton and rather put aside the prospects of employment. Certainly, it appears that Dr Lotz did not carefully examine Ms Sutton’s employability. That may be a consequence of the therapeutic relationship.
- For those reasons, I accept the submissions of counsel for Allianz that:
- (a)an appropriate PIRS assessment is 10%, a moderate increase to Dr Chalk’s assessment of 6%, which would attract an ISV at the top of item 12 of the scale in Schedule 4 (moderate mental disorder), i.e. an ISV of 10; and
- (b)it is appropriate to mark up the ISV by 25% by reason of the other injuries suffered by Ms Sutton which, when rounded up from 2.5 to 3 gives an ISV of 13 and a resulting assessment of general damages at $21,280.
Loss of Earnings and Earning Capacity
- Ms Sutton was born on 26 March 1971. She was therefore nearly 44 at the time of the accident.
- Ms Sutton completed Grade 12. After school she worked for a retail fashion store called Cue Design. She was there for four or five years and progressed to a manager role. She then worked for Jeans West as a manager for three years and, after that, in a car dealership as a finance manager for two more years. She then earned her real estate licence and worked in a real estate agency for four years.
- Ms Sutton has a variety of trade or similar qualifications, namely: A Certificate in Business Managers Customer Centered Selling, a Code of Practice Accreditation, a Real Estate Salespersons Course, a Certificate Banquet Events, and a Diploma in Advanced Sewing. She also appears to have started a three-year Interior Design Diploma Course at Rhodec International London but says she deferred those studies because she became employed fulltime in that industry. Presumably that was her employment with QCM in sales, design and manufacturing of soft furnishings & upholstery in the period from 2002 to 2004.
- In that last period of employment in the real estate industry she met her husband, Robert Sutton.
- In about 2004 Ms Sutton started a spray tanning business, called ‘Go Bronze’ or ‘BronzEclipse’ where she worked for 18 months.
- Once she fell pregnant Ms Sutton ceased work and it seems likely that the spray tanning business became dormant. She gave birth to her eldest son, Elijah, on 5 August 2005 and to her second son, Isaac, on 17 February 2010.
- Whilst raising her children Ms Sutton remained active. She took on volunteering roles with her children’s kindergarten and school.
- At the time of the accident in February 2015 Mr and Mrs Sutton’s youngest child had recently commenced school. Ms Sutton says that at this time she had progressed with plans to return to the workforce. There were, she says, three projects on the horizon:
- (a)The previous year, in 2014, Mr Sutton and a business partner, Mr Devlin, had commenced a cleaning business; Ms Sutton had been involved in the preparation of business cards for the new business and was intending to become involved;
- (b)For some months Ms Sutton and a friend, Cassandra Kolowski, took steps towards establishing an internet or software business, called Me-M8z, designed to ensure that children only have access to safe websites; and
- (c)Ms Sutton was considering reactivating the Go Bronze/BronzEclipse spray tanning business.
The Cleaning Business
- The statement of claim alleges that it was intended that the plaintiff would be paid retrospectively for the work that she performed in the set-up phase once the cleaning business was up and running. In fact, the business did become a mature business earning a net profit of $113,474, $125,002, $180,246, $297,146, $223,250 for the respective financial years ending 30 June 2016, 2017, 2018, 2019 and 2020.
- That raises the question of why Ms Sutton was not paid for the work she did. There are, in my view, a number of possible reasons for that.
- First, it may be that the work Ms Sutton did in the setting up of the cleaning business was relatively minor. Ms Sutton’s evidence was that she assisted with business cards. Mr Sutton’s evidence was that ‘[Ms Sutton] was the BDM’ and that, prior to her accident, Ms Sutton and Mr Devlin had ‘quite a few meetings’ and ‘talked’ before Mr Sutton was due to formally join the business. However, apart from ‘talking’ with Mr Devlin, Mr Sutton does not mention any other duty entrusted to Ms Sutton. Mr Devlin did not give evidence of any specific work that was carried out by Ms Sutton for the business. When specifically asked ‘[c]an you tell his Honour what input into that cleaning business [Ms Sutton] had had prior to her accident?’, Mr Devlin answered that Ms Sutton was ‘a big asset in choosing Robert’, and proceeded to speak about Mr Sutton’s role in the business. Notably, Mr Devlin spoke in hypothetical terms. Nothing seemed to be concrete or agreed.
- Mr Devlin, when asked about Ms Sutton’s proposed work in the business, said that ‘[Ms Sutton was] going to really try hard for this business because [Mr Sutton] is involved, and, you know, probably self, you know, satisfaction of - of being good at what she does’. When asked about Ms Sutton being remunerated for her work, Mr Devlin said: ‘I can’t remember discussing dollar figures’. Mr Devlin then said ‘if you didn’t incentivise [Ms Sutton] well, you know, however much it may be, she wouldn’t have her heart in it. Hopefully being his wife, she would, but, you know.’
- Thus, whilst Mr Sutton’s evidence was that he and Mr Devlin talked about the prospect of Ms Sutton joining the business, Mr Devlin did not give evidence that there was any specific proposal for Ms Sutton to be employed by the business in a particular position. He did not give evidence that she was to occupy any particular role or that she would be paid any particular remuneration. Mr Devlin seemed to have the view that Ms Sutton might work free of charge, to assist her husband and to therefore receive an indirect benefit, but was conscious that might not properly incentivise Ms Sutton.
- Second, it may be that the partners of the business, Mr Sutton and Mr Devlin, took Ms Sutton’s assistance for granted.
- Third, it may be that, in so far as Ms Sutton gave assistance, it was informal assistance, or at least regarded as informal assistance, and not part of any employment role.
- The business appears to be a relatively small enterprise. The total wage bills for the financial years 2016 to 2020 are: $0, $0, $0, $83,355, $0, respectively. That does not suggest that the enterprise could employ a full-time Business Development Manager, or even a part-time Business Development Manager, at least without some lead-in time and re-structuring. Thus, the evidence that Ms Sutton was going to be employed as the Business Development Manager for the cleaning business looks rather vague and thin.
- On the balance of probabilities, Ms Sutton has not proved that, as a result of the injuries she received in the accident, she was unable to commence work in the cleaning business.
- In 2015, Ms Sutton and Ms Kowalski, as partners, were developing a ‘website’ or ‘social media platform’, which they refer to as ‘MeM8z’. The central purpose of the invention was to create a safe space where children could interact with the web, while supervised by their parents. Their endeavours were guided by Ms Sonya Bernhardt OAM. Ms Bernhardt ‘was involved in guiding, early ideas, concepts’ as well as facilitating access to solicitors, accountants, and a workshop, and recommending software developers based in India.
- The partnership had collectively expended $15,000 on the development of MeM8z, and were planning a ‘soft launch’ for mid-2015. However, Ms Kowalski gave evidence that before Ms Sutton’s accident, the MeM8z’s software had some issues, that the partnership had issues with the main developer, and that another company had been contacted to refine the software. Further, Ms Kowalski’s evidence was that, following the accident, MeM8z ‘petered out’ and that she ‘had really limited – almost no communication with [Ms Sutton]’.
- Again, it is not possible to be satisfied that there was a viable business there, and that Ms Sutton was likely to be gainfully employed in such a business, or that there was a prospect that Ms Sutton would earn an income as a partner in such a business.
- In 2004, Ms Sutton had commenced a mobile spray tanning business. The business was remunerated on a donation only basis, as Ms Sutton was still learning how to operate the instruments. Ms Sutton envisaged that she would eventually facilitate the sale of spray tanning systems, teach customers how to operate the system, and facilitate the purchase of tanning solution refills. However, by the time of the accident, Ms Sutton ‘had done nothing about [this business] for some years.’ Further, Mr Sutton said that Mr and Ms Sutton ‘couldn’t do that [referring to launching the tanning business] until the other two [meaning the cleaning business and MeM8z] were well and truly in progress’. Thus, the capital for this business would only arise, ‘a couple of years’ after the other two business were established. Again, the court cannot be satisfied that there was a viable business in prospect.
- The requirement that the plaintiff prove damage leaves open the possibility that, in an appropriate case a court might conclude that a particular plaintiff has not proved a loss of earning capacity. However, courts have been anxious to ensure that those cases are rare. Thus, a court is not relieved of the duty of assessing damages merely because the damages are not amenable to precise calculation or because the task of assessment is fraught with difficulty.
- In some instances it is relatively easy to calculate damages compensating a person for loss of future earning capacity; for example, the period of incapacity may be closed, and the plaintiff may have a solid history of stable employment. Other cases, however, are not so simple; a plaintiff may have had an inconsistent history of employment, or there may be other complicating factors that must be taken into account. Here, the complicating factors are that:
- (a)Ms Sutton’s work history involved consistent employment but in a variety of jobs;
- (b)By the time of the injury, Ms Sutton had been out of the workforce for more than a decade;
- (c)Ms Sutton’s possible employment in the three businesses (the cleaning business, MeM8z and Go Bronze/BronzEclipse) were quite uncertain.
Counsel’s Submissions about Economic Loss
- Beyond relying on the Vincents report (discussed below), counsel for Ms Sutton did not undertake the task of making a submission about the way in which the court ought to assess either past or future economic loss. No calculation or methodology was submitted. Instead, counsel’s submissions were that:
The Court must make an assessment based on all it knows about the Plaintiff’s longitudinal history, her ambitions and her expectations at the time of injury, as well as the consequences of the injury in terms of attaining any of those possibilities going forward, before then turning to assess the claim. In the broader picture, the Plaintiff was not working in a normal paid employment position nor in a functional business position in terms of income, and the Court must resort to addressing the broader issues of what in fact was her earning capacity and then put a value on what is her loss of earning capacity. I referred to Graham v Baker (1961) 106 CLR 340 and “Luntz Assessment of Damages for Personal Injury and Death” 4th ed. at [5.1.4], and essentially the Court has to assess the Plaintiff’s loss of earning capacity.
- It is difficult to know what to make of that, except that the court is required to undertake the task of assessment. Certainly, Ms Sutton’s subjective ambitions and expectations are relevant. However, it is necessary for the court to assess the counter-factual – what was likely to have happened if Ms Sutton had not been injured.
- Counsel for Ms Sutton continued:
It is submitted the Plaintiff has a track record of changing occupations and moving where necessary to make an income and, in this regard, the Court will accept that but for the accident, she was not the sort of person who was going to sit at home being a mother. This is reflected by her considerable advancement of several business opportunities, even prior to attempting to formally re-enter the workforce when her children commenced school, which had just occurred.
- The court can readily accept the first sentence. Given her work history, the likelihood is that Ms Sutton would have re-entered the workforce. Many people who undertake child care full time for an extended period do re-enter the workforce after their children become more independent. However, I reject the second sentence. As explained above, two of the three business opportunities had not proceeded beyond an embryonic stage and Ms Sutton’s proposed role in the cleaning business was unclear, as was the capacity of the business to support an additional employee. And, Ms Sutton’s work history shows that whilst she had earned income as an employee, she had not ever run a profitable business.
- The primary submission of Ms Sutton’s counsel was that Ms Sutton lost the opportunity or the chance to develop a successful business and to become ‘quite wealthy’.
- Ultimately, Ms Sutton’s counsel contended for past economic loss of $398,814 and future economic loss of $641,053, a total of $1,039,867, based on the Vincents Forensic Accountants’ report by Mr Michael Lee. Parts of that report were ruled as inadmissible during the course of the trial. My reasons for that ruling are below.
- Counsel for Allianz submitted that Ms Sutton had not proved any specific loss and submitted that Ms Sutton was entitled to $60,000 for economic loss on a global basis. That issue of a global sum is addressed below.
The Vincents Report
- As mentioned, Ms Sutton’s counsel relied on the Vincent’s report as properly assessing Ms Sutton’s loss of earnings and earning capacity. I ruled that significant parts of that report were inadmissible.
- At the outset the Vincents report acknowledges that Ms Sutton had provided instructions that:
And that the validity of those assertions were questions of fact for the court to determine.
- The Vincents report then proceeds on the following assumptions:
- (a)Had the accident not occurred Ms Sutton would have:
- Established the social media business and the tanning business whilst assisting Mr Sutton in the operations of the cleaning business; and
- Alternatively, Ms Sutton would have pursed commercial employment;
- (b)As a result of the injuries sustained in the accident, Ms Sutton has suffered a reduction in her capacity as set out in paragraph 4.6 (i.e. non-establishment of the businesses and the non-return of Ms Sutton to employment);
- (c)There is significant uncertainty as to Ms Sutton’s capacity to return to employment.
- For the purposes of the report Vincents assume a complete reduction in Ms Sutton’s earning capacity, that is that Ms Sutton had (and has) no earning capacity at all after the accident.
- Vincents then assessed Ms Sutton’s notional earning capacity (i.e. what Ms Sutton would have earned but for the accident). That is done by, firstly, having regard to salary surveys and to Australian Tax Office statistics in order to determine that Ms Sutton would have earned a salary in the range of $112,500 in 2015 to $127,500 in 2020. Beyond the fact that Vincents have ‘had regard to’ various employment surveys, principally for the positions of marketing manager and business development manager, it is difficult to know how Vincents have arrived at that salary range. No specific figures from the various tables are relied on. No averages are said have been arrived at.
- Second, that salary range is then used to calculate what Ms Sutton would have earned in the period from 11 February 2015 to 31 July 2021.
- Third, a similar exercise is performed for future economic loss, i.e. the period from 1 August 2021 to 26 March 2038 (when Ms Sutton will turn 67).
- Fourth, the Vincents report then performs a similar, alternative calculation based on the average weekly earnings for females in Queensland. The salary range here is from $73,512 in 2015 to $85,350 in 2020.
- It is notable that Vincents did not assess the potential earnings of the tanning or social media platform businesses. I infer that was because the businesses were, as explained above, at the embryonic stage. Neither business had been launched. Neither had commenced trading. There was no basis upon which the success or profitability of either business could be assessed.
The Objection to the Vincents Report
- Counsel for Allianz objected to Parts 9 to 13 of the Vincents report. The objections fell into the following categories:
- (a)There is no relevant field of specialised knowledge;
- (b)Even if there is such a field, Mr Lee was not an expert in that field;
- (c)The facts upon which the opinion is based are not proved or shown to form a proper basis for the opinions (also known as the ‘basis rule’);
- (d)There is not a proper statement of the expert’s reasoning (also known as the ‘statement of reasoning rule’).
- If the only objections to admissibility were (a) and (b), I would have ruled the report to be admissible. That is because an experienced chartered accountant such as Mr Lee, with experience in accounting, mathematics and statistics, could properly assess an employee’s loss of income. The expertise of accountants in this field would seem to be sufficiently established to have gained general acceptance.
- Allianz’s counsel is correct to say that trial judges assess loss of earning capacity every day. However, they often do so assisted by the accounting evidence which compares notional earnings and actual earnings.
- The problem with the Vincents report, though, is that the basis for the accountant’s opinions are not proved or admissible, and the reasoning is not explained, or explained sufficiently.
- First, the Vincents report assumes that Ms Sutton would have been employed as a marketing manager or business development manager or in a similar position. The evidence does not establish that. Ms Sutton’s work history does not establish that she worked in those positions. The Vincents report’s assumption appears to be false given that, for example, the IML research records qualifications for the position of business development manager as ‘Preferred tertiary qualifications in a commercial discipline such as Finance and/or Law…requires a working knowledge of the stock market and takeover regulations’. There is no suggestion that Ms Sutton possessed those qualifications or expertise. More to the point, though, the issues of what qualifications and experience are required for each of those positions, and whether Ms Sutton possessed those qualifications and experience, were not the subject of evidence or submission.
- Second, that raises the related, broader problem that Mr Lee had no particular expertise in the labour market, or in education, training and expertise for particular positions. And, even if he did, Vincents have not analysed Ms Suttton’s qualifications, expertise and experience as against the qualifications, expertise and experience required for the positions in the surveys and the positions of marketing manager or business development manager. Counsel for Allianz correctly noted that:
Mr Lee’s opinions are simply based upon hearsay, information derived from other sources. It is not even demonstrated that the information which Mr Lee has relied upon, relating to some occupations, are applicable to the Plaintiff. It is not demonstrated that any of the hearsay information relied upon by Mr Lee relates to occupations for which the Plaintiff may be suited.
- Third, the basis for the salary ranges assessed by Vincents are Hays Salary Surveys, IML Salary Surveys and Australian Tax Office statistics. Those surveys are not proved or in evidence. No person attested to their accuracy; not even Vincents. The Vincents report merely attached extracts. Thus, the veracity of the surveys is unknown.
- Counsel for Ms Sutton expressed surprise that I was unaware of the existence of the Hays Salary Survey. Even in the absence of that (admitted) ignorance, it is difficult to see how the court can accept the survey extracts as an evidentiary foundation for Vincents’ opinions. It was not contended that, despite my ignorance, judicial notice ought to be taken of the surveys. And, of course, the most troubled debate in the context of the ‘basis rule’ has been whether and when the court should accept survey evidence.
- Fourth, the Vincents report breaches the ‘statement of reasoning rule’ by:
- (a)failing to state why Ms Sutton’s notional loss was assessed based on the positions of marketing manager and business development manager; and
- (b)failing to explain how Vincents arrived at the salary figures he did.
- For example, paragraph 9.15 of the Vincents report sets out the notional earnings in a range of $112,500 p.a. for 2015 to $127,500 p.a. for 2020 onwards. Those figures are merely said to have been arrived at ‘having regard to the sources of information detailed at paragraph 9.2 (i.e. the surveys).’ The figures are not said to be an average. The IML survey, for example, lists ranges of salaries for different sized businesses (in terms of turnover and number of employees) in different industries in different parts of Australia and Queensland. It is a mystery as to which figures have been used and how.
- Counsel for Allianz complains that the figures used by Vincents are at the top of the range. However, there is no way to assess whether that is accurate or not because the reasoning is absent.
- For those reasons parts 9.0 to 13.0 of the report are inadmissible and an assessment of economic loss based on the report is rejected.
Tender of the Hays Survey
A Global Award?
- Counsel for the Allianz sought to persuade the court to make a global award of $50,000 for future economic loss and $10,000 for past economic loss. His contention was that Ballesteros v Chidlow and Nucifora v AAI Limited demonstrated that global awards can still be made, even in the face of s 55 of the Civil Liability Act 2003. That section provides:
When earnings can not be precisely calculated
- (1)This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
- (2)The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
- (3)If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
- (4)The limitation mentioned in section 54(2) applies to an award of damages under this section. [emphasis added]
The Court of Appeal Decisions on Global Awards
- Certainly, conventional wisdom is that s 55(3) of the Act does not prevent Queensland courts from making global awards of damages for economic loss. In Reardon-Smith v Allianz Australia Insurance Ltd Keane JA, with whom Williams JA and Atkinson J agreed, said:
- In my respectful opinion, the learned trial judge's reference to the principles stated in Malec's Case cited at paragraph  above is a sufficient statement of the learned trial judge's methodology, at least in a case where the very modest nature of the award makes it abundantly clear that the probability of the lost chance of substantial financial benefit was so slight as to be almost negligible.
- Section 55(3) of the Act is evidently concerned to ensure that the assessment of damages proceeds in a manner which is sufficiently transparent that the basis of the decision is apparent, both to the parties and to an appellate court. To this end, the provision requires that the methodology and assumptions on which the award is based be stated: it is clear, however, that it does not require an explicit statement of a calculation in which a formula is applied to factual findings.
- Thus, His Honour accepted that in the limited circumstance where ‘the lost chance of substantial financial benefit was so slight as to be almost negligible’, and where the award was modest, it was a sufficient statement of methodology to merely refer to the principles in Malec’s case.
- A year earlier the Court of Appeal decided Ballesteros v Chidlow. There, McMurdo P (with whom Douglas J agreed) decided that:
Whilst her Honour [the trial judge] could have chosen to more fully state her method of reaching an award of $20,000 damages for future economic loss including future superannuation losses, from the modesty of that award and the assumptions and facts stated previously in her reasons, her Honour’s methodology is plain enough.
- Thus, Her Honour appears to permit a less than full explanation of the methodology in the case of a modest award. Fryberg J dissented on this issue saying that he was not satisfied that the trial judge’s assumptions and methodology had been stated in accordance with s 55(3) of the Act.
- The President (with whom Gotterson JA agreed) agreed with White JA that the primary judge’s reasons did not sufficiently reveal the basis for the global award of $40,000 as required by s 55(3) of the Act. Instead, the President decided that the plaintiff was entitled to an award of $15,000. Her Honour’s reasoning was as follows:
It is impossible to mathematically calculate the precise amount of this loss or even quantify it in terms of percentages of likelihood. But to do justice between the parties consistent with the principles extracted above from Malec, this is a case requiring a modest global award to reflect the contingencies I have discussed. Bearing in mind that Ms McCarthy has a long working life ahead of her, and the relatively modest chance of significant economic loss, I consider she should receive $15,000 damages for future economic loss. In a case such as this, these reasons sufficiently disclose the assumptions on which I base that award and the methodology used to arrive at it in terms of s 55(3): see Ballesteros v Chidlow & Anor and Reardon-Smith v Allianz Australia Insurance Ltd.
- White JA referred in detail to the President’s reasons and the reasons of Fryberg J in Ballesteros v Chidlow as well as the reasons of Keane JA (with whom Williams JA and Atkinson J agreed) in Reardon-Smith v Allianz Australia Insurance Ltd. Her Honour’s reasons made clear that the primary judge’s award of $40,000 offended s 55(3) of the Act but also advanced another reason for not making an award for economic loss:
The primary judge’s reasons do not reveal any basis at all for selecting $40,000 to compensate the respondent for loss of her earning capacity and should be set aside as constituting an error of law. However, the basis upon which the appeal should succeed is more fundamental. The primary judge identified the many imponderables which operated against anything other than a very small chance of loss in the Malec v JC Hutton Pty Ltd sense. But it was necessary, before making that assessment, to be satisfied that the negligently inflicted injury would lead to an impairment in the respondent’s earning capacity and, that that impairment would be productive of actual financial loss. As has been discussed above, the evidence did not permit of such satisfaction. The result is that no award ought to have been made for loss of future earning capacity. Instead, there ought to have been a modest augmentation of the injury scale value to reflect the loss of the satisfaction of engaging in her chosen career (“loss of amenities of life” in s 51(b)) or for additional pain and suffering experienced by virtue of persevering in that occupation rather than in a more sedentary one. I would propose an injury scale value of seven, that is, an extra $3,000.
- Thus, the court was agreed that the trial judge’s global award did not comply with s 55(3) of the Act but was divided on how and whether the loss of earning capacity should be compensated. However, Allianz Australia Insurance Limited v McCarthy, the latest Queensland Court of Appeal decision on the topic, gives little encouragement to courts and practitioners to adopt global assessments of economic loss, except perhaps in cases where the award is modest.
Some Single Judge Decisions on Global Awards
- A number of single judge decisions have considered the issue. In Perfect v MacDonald, for example, McMeekin J said:
While the precise point may not have arisen in the past Mr Crow SC has referred me to three decisions where the section has been considered, two of the Court of Appeal. In both of those latter decisions the Court plainly accepted that it was appropriate to adopt the principles explained in Malec when arriving at a global assessment. There was no suggestion that there had been any alteration of the common law brought about by the enactment of s 55.
- In Nucifora v AAI Limited the same judge said that it may be doubted that s 55(3) of the Act has affected any change to the position at common law and that the usual principles continue to apply.
- A similar view was adopted by McMeekin J in Brown v Holzberger. That case involved more than modest global claims. The plaintiff sought $65,000 for past economic loss and $750,000 for future economic loss. The defendant was prepared to submit to awards of $45,000 and $450,000 respectively. After referring to the three Court of Appeal decisions and his own reasons in Nucifora, His Honour took the view that the methodology need not include an explicit statement of a formula, and that an ‘experienced guess’ was sufficient. For those two propositions, His Honour relied on Reardon-Smith v Allianz Australia Insurance Ltd and Ballesteros v Chidlow. His Honour proceeded to award $55,000 for past economic loss and $500,000 for future economic loss on a global basis.
- That decision appears to extend what is contemplated by s 55 of the Act and the three Court of Appeal decisions. The methodology and assumptions on which the award is based are required to be stated. The reasons of Keane JA were limited to cases of modest awards, where the lost chance of substantial financial benefit was so slight as to be almost negligible’ and where the award was modest. In those cases, it was a sufficient statement of methodology to merely refer to the principles in Malec’s case.
- The statement of Keane JA that s 55(3) of the Act does not require an explicit statement of a calculation in which a formula is applied to factual findings must be viewed in that context and as explaining that the section does not require an exercise in mathematics.
- The dissenting reasons of Fryberg J in Ballesteros v Chidlow illustrate that point:
What is sufficient to enable compliance with the subsection? “Assumptions” and “methodology” operate in tandem in the provision, and the one throws light on the other. Both words have overtones of at least quasi-mathematical meaning. “Assumptions” could, of course, refer to the facts found by the judge upon which the award is based. In my view that would be a most inappropriate use of the word, and it seems unlikely that it was intended in this context. Apart from anything else, the subsection would be unnecessary if that were the meaning, since judges must in any event state their findings of fact. In the context of making a global award where, ex hypothesi, precise calculation by reference to a defined loss is impossible, it is much more likely to have been intended to refer to assumed facts underlying one or more hypothetical calculations which a judge might use in order to get a general idea of what might constitute a suitable global figure; or to similar facts or sets of facts used by the judge to confirm or cross-check a global figure selected by making an experienced guess. That in turn suggests that “methodology” does not refer to anything too demanding. In this context, an experienced guess is a legitimate methodology, although if possible it should be dissected in a manner appropriate to the circumstances of the case in order to understand what it might imply in those circumstances and thereby to confirm that the figure is of an appropriate order of magnitude.
- Those dissenting reasons, and that discussion of the concept of ‘experienced guess,’ do not enable a court to jettison the legislative requirement of a statement of both the methodology and the assumptions on which the award is based.
- In McKay v Armstrong, Morzone DCJ awarded what he described as a ‘global award’ of $50,000 for future economic loss. But that award was rationalised by reference to specified estimates of losses per week, for different periods, as well as using the 5% multiplier and a discount. In other words, whilst labelled as a global award, it was clear that both assumptions and a methodology was applied. His Honour took a similar approach in Armstrong-Waters v State of Queensland.
Global Awards – A Summary
- There is an additional reason why global awards are undesirable, even in the context of an assessment of a loss of earning capacity, which of course is an assessment of a loss of a chance. As the ACT Court of Appeal explained in O'Brien v Noble in relation to the giving of reasons by trial judges:
While not every aspect of the reasoning process needs to be spelled out, the reasons must resolve critical points in dispute and facilitate appellate review: Kendirjian v Ayoub  NSWCA 194 at  (McColl JA); and
Awards for damages should not be arrived at intuitively but by a process of methodical consideration: Gamser v Nominal Defendant (1977) 136 CLR 145 at 149 (Stephen J).
- For all of those reasons, in my view:
- (a)section 55(3) of the Act does alter the common law;
- (b)the court is required by the statute to state both its assumptions and the methodology used to arrive at the award for economic loss;
- (c)that requirement does not permit the court to make a ‘global award’ in the sense of an award that is not the subject of some application of assumptions as well as a methodology;
- (d)the evident purpose of section 55(3) of the Act is to ensure that courts do not use what has been described as the ‘purely intuitive’ assessment of damages as a global sum but instead adopt a transparent and reasoned approach based on the evidence.
- That said, it must be acknowledged that the Court of Appeal’s decision in Reardon-Smith v Allianz Australia Insurance Ltd, and its majority decision in Ballesteros v Chidlow, accepts the validity of modest global sums for loss of earning capacity. On the other hand, the dissent of Fryberg J in Ballesteros v Chidlow is to the contrary. The Court of Appeal’s more recent decision in Allianz Australia Insurance Limited v McCarthy recognises the possibility of global sums for economic loss but requires that the court sufficiently reveal the basis for even a modest global award.
- There are some issues that are unresolved by those three intermediate appellate decisions:
- (a)What is a sufficient explanation for a global award?
- (b)How can an explanation be sufficient given that s 55(3) of the Act requires the assessment to be based on both a statement of assumptions and a methodology?
- (c)What precisely constitutes a modest award?
- (d)How can the modesty of the award be said to have tempered the requirements of the statute?
- Of course, this discussion illustrates how s 55(3) of the Act places courts in an invidious position. As explained, a court is not relieved of the duty of assessing damages merely because the damages are not amenable to precise calculation or because the task of assessment is fraught with difficulty. And yet the legislation requires courts to apply a methodology to an assessment of damages, as against a hypothetical situation which is not amenable to a methodology at all.
- Having regard to the authorities referred to above, it is doubtful that the court is entitled to adopt a global approach to economic loss. Even if that were not the case, it is appropriate for the court to decline the parties’ invitation to adopt a global approach to economic loss. It is necessary to embark on the assessment process in a methodical way – to the extent that is possible.
Assessment of Economic Loss
- At the outset, in accordance with s 55(2) of the Act, I am satisfied that Ms Sutton has suffered and will suffer loss having regard to her age, work history, and the likely earnings which she would otherwise have earned but for the accident and the resulting impairment.
- It therefore becomes necessary to identify the assumptions relevant to an assessment of Ms Sutton’s economic loss, but with an appreciation that the exercise is laden with uncertainty. As Jackson J said in Peebles v Work Cover Queensland:
The assessment of the hypothetical factual bases or assumptions for the calculation of future economic loss in this case is attended with great uncertainty. The plaintiff’s approach to that uncertainty is that the defendant has to disprove the assumptions for which the plaintiff contends. I do not agree. Overall, the plaintiff bears the onus of proof on the issue of damages. But the question should be considered, having regard to the obvious difficulties of such a hypothetical assessment and the attendant complexities raised by the evidence. The court is required to assess these assumptions and complexities as best it can.
- In this case, the following are the appropriate assumptions to make on the balance of probabilities. First, it is likely that Ms Sutton would have returned to the workforce. She impressed as capable and intelligent, and she gave evidence that she intended to return to work. There is no reason to doubt that evidence. In this respect, this case bears some similarity to Whitaker v Rogers where the plaintiff, who had been caring for her children, gave evidence that she was proposing to return to work as a nursing aide or possibly to help her husband ‘in the car game’.
- Using the language of a different but related legal context, Ms Sutton has lost an opportunity of value because, but for the accident, there was a substantial, and not a merely speculative prospect, of her exploiting her earning capacity.
- Second, as explained, Ms Sutton is likely to have returned as an employee, not as a business owner.
- Third, it is not likely that Ms Sutton would have returned to full-time work, at least for quite some time. There was no evidence from Mr or Ms Sutton to the effect that there was a plan for Mr Sutton to reduce his hours so as to care for school aged children. The burden of childcare was likely to continue to fall upon Ms Sutton. And, as counsel for Ms Sutton conceded in a slightly different context, Ms Sutton should not be assumed to have started to earn income from ‘day 1’ after the accident.
- Fourth, it is difficult to assess what kind of position that Ms Sutton would have held. Given her history the prospects are that she would have held a managerial position in a small business, or something similar. Contrary to the contentions of her counsel, I am not prepared to assume that Ms Sutton was likely to have held a position as a Business Development Manager or as a Marketing Manager. She has no significant experience in business development or in marketing. Ms Sutton’s work history is consistent with her being employed in a managerial role within a small business.
- Fifth, in the absence of any evidence of the salaries of managers, it can be assumed that Ms Sutton’s likely salary would be similar to the average weekly salary rates which are included at Appendix 16 of the Vincents report. At Schedules 3 and 4 of the Vincents report there is a list of the average annual earnings after tax (but including superannuation). The average for the years from 2015 to 2025 is $62,907 which translates to a weekly after tax wage of $1200 per week (or $240 per day).
- Sixth, having regard to the competing medical evidence explained above, and my preference for the evidence of Dr Chalk, an appropriate assumption is that, whilst Ms Sutton has been unable to work until now, with the resolution of the litigation and the benefit of on-going treatment, she will be able to gradually return to work over the next few years. I assume a relative recovery by the end of 2025, in the context that by then Ms Sutton will be 54 years of age.
- Applying those assumptions, and appreciating the uncertainties and ‘broadbrush’ approach of the exercise, a rational approach can be as follows:
- (a)a loss of two days per week for 2015, 2016, 2017 and 2018, i.e. $240 x 2 days x 52 weeks x 4 years = $99,840;
- (b)a loss of three days per week for 2019, 2020 and 2021, i.e. $240 x 3 days x 52 weeks x 3 years = $112,320;
- (c)a loss of two days per week for 2022, 2023, 2024 and 2025, i.e. $480 net per week using the 5 per cent multiplier of 189.60 for 4 years = $91,008.
- The next question is whether a discount ought to be applied for the vicissitudes of life. In Whitaker v Rogers the trial judge was faced with the plaintiff’s submission that the plaintiff ought to recover award wages on the basis of full-time work, and the defendant’s submission that she ought to recover for 20 hours per week. His Honour accepted the plaintiff’s figures but subjected those figures to a 25% discount to reflect the possibility that the plaintiff might not have obtained work, might have either started part-time or switched to part-time, or stopped work before the date to which the calculations had been made.
- Of course, in considering the hypothetical situation that would have existed but for the accident, there is a prospect that Ms Sutton might not have worked at all, or she may have worked part-time or full-time. She may have even worked on a casual basis or spasmodically. Those possibilities are already built-in to the methodology set out above. Ms Sutton may have worked more or less than the hours estimated. Thus, I propose not to apply what would be, in reality, a further discount.
- However, there are other (non-employment related) vicissitudes, such as ill-health, pandemics, extended holidays, etc. On that basis it is appropriate to apply a 15% discount to the figures arrived at above. That results in an award for economic loss as follows:
Past economic loss
- (a)2015-2018 - $99,840
- (b)2019-2021 - $112,320
- (c)Sub-total - $212,160
- (d)Less discount of 15% = $180,336.
Future economic loss
- (e)2022-2025 - $91,008
- (f)Less discount of 15% = $77,357.
- Finally, on this point, it will be noted that superannuation is built in to the figures used by Vincents at Schedules 3 and 4 of their report. Those are the figures I have adopted in arriving at the weekly after tax wage of $1200 per week (or $240 per day) referred to above. Thus, there is no need to add superannuation.
Care – Gratuitous Services
- Ms Sutton claims for the gratuitous services provided by her husband. The claim is for:
10 February 2015 – 10 August 2015
26 weeks x 17 hours
11 August 2015 to 10 February 2016
26 weeks x 14 hours
11 February 2016 to 10 February 2017
52 weeks x 11 hours
11 February 2017 to 10 February 2018
52 weeks x 5 hours
11 February 2018 to 29 February 2021
135 weeks x 3 hours
- Section 59 of the Act provides:
Damages for gratuitous services provided to an injured person
- (1)Damages for gratuitous services provided to an injured person are not to be awarded unless –
- the services are necessary; and
- the need for the services arises solely out of the injury in relation to which damages are awarded; and
- the services are provided, or are to be provided:
- for at least 6 hours per week; and
- for at least 6 months.
- (2)Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.
- (3)In assessing damages for gratuitous services, a court must take into account—
- any offsetting benefit the service provider obtains through providing the services; and
- periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.
- There is a significant body of rather general evidence that Mr Sutton did provide some services to Ms Sutton, particularly in the first six months after the accident. However, there are some evidentiary problems with this claim.
- First, Mr Sutton did not keep a written record of his gratuitous services.
- Second, the first time he was asked to provide what he described as his ‘guestimation’ of the services he provided was two years after the accident (i.e. around 2017). The document he said he provided to his solicitor, containing the ‘guestimate’ was called for by Allianz’ counsel but is not in evidence.
- Third, Mr Sutton’s ‘guestimation’ such as it was, involved assessing all of the household tasks he performed and then dividing the resulting figure by four to accommodate the fact that he performed the household tasks for the family of four and Ms Sutton was only one of four family members. That exercise does not enable me to be satisfied, on the balance of probabilities that the various services were necessary services that arose solely out of the injury and that the extent of the services exceeds the threshold of six hours per week for at least six months.
- Fourth, it can be seen that Ms Sutton’s claim for Mr Sutton’s gratuitous services included a claim for 17 hours a week for the first 26 weeks, then 14 hours per week for the next 26 weeks. When cross-examined about those figures, Mr Sutton gave this evidence:
What have you included in the 17 hours?---Contributing for the – watching for her medication, a couple of
hours a day.
A couple of hours a day?---Yeah.
So 14 hours a week?---It would be close to that.
Just for watching your wife at home?---Not just for watching her, for making sure that she wasn’t going to do anything dangerous.
- In the absence of some relatively contemporaneous record, I am not prepared to accept that evidence. It has an unrealistic element. There was no evidence from the psychiatrists that the medication was dangerous or required a person to observe Ms Sutton for any period after she took medication.
- Fifth, Mr Sutton’s evidence on the time he spent on watching Ms Sutton after medication was inconsistent. Initially he stated that he watched her for four or five hours a day. Then, when pressed, he said it could be a couple of hours a day, or close to 14 hours per week (i.e. 2 hours per day). I am not satisfied that the evidence is reliable.
- Of course, there is an issue as to whether merely watching Ms Sutton constitutes a service for the purposes of s 59 of the Act. It is doubtful that it does, particularly in the absence of medical evidence that the ‘service’ was necessary. Because of the view taken concerning the veracity and credibility of the claim, it is unnecessary to decide that further issue.
- Sixth, at least some of the care said to have been provided by Mr Sutton to Ms Sutton is said to comprise ‘dealing with legal matters’. The precise nature or extent of these services are not identified. If the court were minded to exclude the services ‘dealing with legal matters’, it is impossible to know what precisely to exclude, or even what proportion to exclude.
- Seventh, counsel for Ms Sutton submitted that:
- (a)if the court accepted that the hours identified by Mr Sutton were services provided by Mr Sutton, then the award for gratuitous care would be in accordance with the calculation in exhibit 2;
- (b)if not, it is simply a matter of adjusting the figures.
- As Mr Sutton’s ‘guestimate’ is not accepted, the question is whether the court can ‘simply adjust the figures.’ In some cases that may be possible where the court can identify the particular services to be excluded (or included). That is not possible here. The services included in Mr Sutton’s ‘guestimate’ are general household services, but divided by four. Those services also include unreliable estimates of time spent watching Ms Sutton and an uncertain period for legal matters. Thus, the court is in a similar position to Cullinane J in Leonardi v Payne. There His Honour was invited to simply halve the claim. His Honour said:
It is however not possible in my view for the Court to take such an approach. The evidence does not permit a finding of the plaintiff's needs if the matter were considered by reference only to the plaintiff's needs for such assistance as opposed to the needs of all members of the family which were previously provided by the plaintiff.
- It follows the requirements of s 59 of the Act have not been met and that the court cannot be satisfied that the various services were necessary services that arose solely out of the injury and that the extent of the services exceeds the threshold of six hours per week for at least six months. Similar conclusions were reached by Henry J in Zavodny v Couper and by Daubney J in Land v Dhaliwal.
- The evidence does not support an award for gratuitous services – past or future.
- In his report of 6 March 2020, Dr Lotz considered that a further two years of monthly visits would be required. The fee is $400 per visit. It seems likely that Ms Sutton’s treatment has not progressed as expected and so I would anticipate those visits for two years from now. The resulting sum is $9,600.
- For pharmaceutical expenses, Dr Lotz estimates expenses of ‘in the range of $200 per month.’ However, an analysis of Ms Sutton’s actual pharmaceutical expenses in the period from 3 February to 6 July 2021 discloses expenditure of $297, that is $60 per month. The actual expenditure seems to be a more reliable guide than Dr Lotz’s round figure estimate. An appropriate award would be $60 for two years, i.e. $1440.
- It follows that Ms Sutton is entitled to the following damages:
Head of Damage
Medicare refund (admitted)
Past out-of-pocket expenses (admitted)
Interest thereon (half agreed rate of 1.74% x 6.6 years)
Past Loss of earning capacity
Interest thereon (half agreed rate of 1.74% x 6.6 years)
Past Superannuation Loss
Future Loss of Earning Capacity
Future Superannuation Loss
Past Gratuitous Case and Assistance
Future Gratuitous Care and Assistance
Future medical expenditure
Future pharmaceutical expenditure
- It follows that the damages will be $314,345. I will hear the parties on costs.
 Motor Accident Insurance Act 1994 (Qld).
 Civil Liability Act 2003, s 61(1)(a).
 Civil Liability Act 2003, s 61(1)(b).
 Civil Liability Act 2003, s 61(1)(c).
 Schedule 3 Section 3(1) of the Civil Liability Regulation 2014; see also Allwood v Wilson  QSC 180 at .
 Ex 1 at 18.
 Schedule 6 to the Civil Liability Regulation 2014.
 Dr Chung’s total score is stated to be 12 but the figures add up to 13.
 The ‘outliers’ are in bold.
 Ex 1 at 15.
 Exhibit 1 at page 3.
 Exhibit 1 at page 29.
 Exhibit 1 at page 35.
 Exhibit 1 at page 43.
 Exhibit 1 at page 43-44.
 Exhibit 1 page 53.
 Exhibit 1 page 18.
 Exhibit 1 page 12.
 Outline of Defendant’s Submissions at .
 Dr Lotz report: ex 1 at page 16.S
 Transcript T2-7, lines 11-17.
 Exhibit 1 page 28.
 The court’s view of the expert evidence will depend upon the facts in each case. In R v Dunn  2 Qd R 254 at  the court noted that an expert in the case had agreed that, as the appellant’s treating psychiatrist, his role was not to decide the appellant’s fitness to plead and that this should be done by an independent psychiatrist. On the other hand, in Mordon v Paul  FamCAFC 222 the appeal court held that the trial judge had erred in giving more weight to the expert family report writer rather than the treating psychologist who had been seeing the mother on an on-going basis. See also Herron v HarperCollins Publishers Australia Pty Ltd (No 3) (2020) Aust Torts Reports 82-589 where the court noted that using the perspective of the treating psychologist allows for a longitudinal assessment of what had occurred.
 Transcript T1-5 line 5.
 Outline of Defendant’s Submissions at .
 Transcript T1-5 line 10.
 Plaintiff’s written address at [10(a)].
 Schedule 7 s 6(c) provides that, if the injury scale value of the injury is assessed as 15 or less but more than 10—by adding to $15400 an amount calculated by multiplying the number by which the injury scale value exceeds 10 by $1960. Thus, the calculation is 3 x $1960 = $5880, plus $15,400 = $21,280.
 This summary is taken from Dr Lotz report: ex 1 at page 7. That summary differs in some respects from the summary in Ms Sutton’s cv in ex 1 at page 342. For example, the cv specifies that Ms Sutton was the ‘Personal Assistant to the Managing Director’ at Saxby Goethe Finance from 1995 to 1997. The differences are not significant.
 Exhibit 1 page 344.
 See exhibit 1 at 343.
 Transcript at T1-19 lines 21-22.
 The extent and nature of her involvement is discussed below.
 Amended statement of claim at paragraph 5(f)(vi).
 Exhibit 1, p.431.
 Transcript T1-38 lines 9, 14; Exhibit 1, p. 454.
 BDM stands for Business Development Manager.
 Transcript T1-53, lines 11, 19-20.
 Transcript T1-53, lines 11-26.
 Transcript T2-37, lines 37-47.
 Transcript T2-38, line 11; Transcript T2-40, line 30.
 Transcript T2-40, lines 16-18.
 Transcript T2-41, lines 41-2.
 Transcript T2-42, lines 2-4.
 Amended statement of claim at paragraph 5(f)(vii).
 While Mr Sutton (T1-54, lines 44-5), Ms Sutton (T1-38, line 39), and Mr Devlin (T2-40, line 22), all referred to Ms Sutton as the business’ BDM, Mr Devlin and Mr Sutton did not give evidence of any firm intention to employ Ms Sutton. This is exemplified by Mr Devlin asserting ‘I can’t remember discussing dollar figures’ upon being asked about Ms Sutton’s prospects of remuneration (T2-41, lines 41-2).
 Exhibit 1, p.431.
 Amended statement of claim at paragraph 5(f)(viii).
 Transcript T1-36 line 16.
 Transcript T2-35 line 27.
 This was pronounced as ‘Me Mates’.
 Transcript T1-18 line 45, T1-19, lines 6-7; Transcript T2-35 line 29-31.
 Transcript T2-28 line 42.
 Transcript T1-36 lines 38.
 Transcript T1-36 lines 18-19, 38; T2-28 lines; Transcript T2-29 lines 12.
 Transcript T1-36 line 44, T1-37 line 15.
 Transcript T2-36 line 19-21.
 Transcript T2-35 line 40-5.
 Transcript T1-35 line 22.
 Transcript T1-35 line 25.
 Transcript T1-35 line 29-31.
 This was conceded by Ms Sutton’s counsel: Transcript T2-29 line 43.
 Transcript T1-57 line 16-7.
 Transcript T1-57 line 22-3.
 Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2006) at [9.4].
 Graham v Baker (1961) 106 CLR 340 at 347.
 Ecob t/as Black Swan Coffee Lounge v Wentworth-Shields  ACTCA 2 at ; Lunz, Assessment of Damages for Personal Injury & Death, (4th edition), p 121.
 Singh v Cooper  ACTCA 55 at .
 It certainly would have been helpful if counsel had undertaken the assessment task that he requested the court perform.
 The one business that she had commenced, the tanning business, operated on a ‘donation’ basis, was not shown to be profitable, and was intended to transform into a business selling tanning machines and ‘pods’: Transcript at T1-35 line 17.
 It was submitted that Ms Sutton might have become a very wealthy woman and, in particular, her ‘MeM8z’ business might have been taken over by one of the big IT companies and/or she might have obtained the capital to develop her ‘BronzEclipse’ business and/or the cleaning business might have taken over more that it currently has: Plaintiff’s Written Address at [15(b)].
 See the discussion below.
 The submission was that an appropriate award was $10,000 for past economic loss and $50,000 for future economic loss.
 As explained, that had not been proved. She assisted with business cards but there is no evidence of other establishment tasks she performed.
 That business was to be established after the other two business were established.
 As explained, that business was in very early development and had not commenced.
 Vincents Report – exhibit 1 at 311.
 For the cleaning business, this means the business proceeded without Ms Sutton’s involvement.
 Vincents Report – exhibit 1 at 315.
 Vincents Report – exhibit 1 at 317 (para 8.15).
 Vincents Report – exhibit 1 at 323.
 Vincents Report – exhibit 1 at 324 (para 10.1) and at 329 (Schedule A).
 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at ; Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No. 5)  QSC 210 at .
 Makita at , ; ASIC v Rich  NSWSC 149 at . Note that there are questions as to whether an expert can give an opinion based on material which is not identified, not proved, not adduced as admissible evidence, or not generally relied on by professionals giving this type of evidence. See the discussion in Freckelton & Selby, Expert Evidence, 5th ed at 122-145.
 Makita at ; ASIC v Rich at -; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 349.
 This is a paraphrased and abbreviated version of the ‘Frye test’: see Frye v United States 293 F 1013 (1923) at 1014; see the discussion of the mixed reception of this test in Freckelton & Selby, Expert Evidence, 5th ed at 62-66.
 See the defendants’ Objections to Mr Lee’s Report at .
 Vincents Report – exhibit 1 at 442 (Appendix 13).
 See the defendants’ Objections to Mr Lee’s Report at .
 Appendix 12 comprised pages 89 to 94, plus 2 further pages, of the Hayes Salary Guide which appears to comprise 127 pages: Transcript T2-42 line 25. Appendix 13 comprised sections 1320-15 and 2303-09. Appendix 14 comprised Vincents’ extraction of ATO statistics.
 Transcript T2-43 line 47.
 Transcript T2-42 line 25.
 Transcript T2-46 line 44.
 See Outline of Defendant’s Submissions at , . Note that, whilst the plaintiff contended for a different measure of damages, the plaintiff accepted that a global award for economic loss was possible: Plaintiff’s Written Address at [16(e)].
  QCA 323
  QSC 338 at .
 The limitation referred to here is the limit to the present value of 3 times average weekly earnings per week.
  QCA 211 at , .
  QCA 323.
  QCA 323 at .
  QCA 323 at -. His Honour ultimately found that ‘an award of $20,000 does not seem to me insufficient for loss of future earning capacity.’ Both the President and Fryberg J referred to New South Wales v Zerafa  NSWCA 187 but there the NSW equivalent of s 55(3), s 13 of the Civil Liability Act 2002 (NSW), is in slightly different terms. It includes a requirement to state the assumptions but not a requirement to state the methodology.
  QCA 312.
 The President, with whom Gotterson JA agreed, substituted a modest award of $15,000. White JA was not minded to make an award for future economic loss but proposed an increase in general damages.
  QCA 312 at .
  QCA 312 at -.
  QCA 312 at .
  QSC 11 at . This case was decided before Allianz Australia Insurance Limited v McCarthy.
  QSC 338 at .
  QCA 295. There was an appeal against this decision, but on a different issue.
 The actual amount was $44,917.
  QCA 211 at  (the passage quoted above).
  QCA 323 at .
 His Honour did discuss his assumptions and he performed a mathematical calculation based on assumptions that resulted in an inadequate calculation of $200,000 for future economic loss.
  QCA 323 at .
  QDC 127 at -.
  QDC 066 at , .
 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
 (2012) 6 ACTLR 132 at ; followed in Howard v Aikman  ACTCA 64 at .
 See Singh v Cooper  ACTCA 55 at , . See also Howard v Aikman  ACTCA 64 at . See also Full Court in Fry v McGufficke  ACTSC 20 at  where Miles CJ, Gallop and Crispin JJ said: ‘Some arithmetical basis must be used and a lump sum cannot be plucked out of the air, but judgment must be used in the application of arithmetic to what figures the evidence may support.’
 See Reardon-Smith v Allianz Australia Insurance Ltd and Ballesteros v Chidlow. An award of $15,000 is also modest – see Allianz Australia Insurance Limited v McCarthy per the President, with whom Gotterson JA agreed.
 See Allianz Australia Insurance Limited v McCarthy.
 There is the ‘double exercise in the art of prophesying involved’: Paul v Rendell (1981) 55 ALJR 371 at 372 (per Lord Diplock).
 The invitation was made by the defendant: Outline of Defendant’s Submissions at , . But the plaintiff acknowledged an assessment ‘even if only on a global basis’: Plaintiff’s Written Address at [16(e)].
  QSC 106 at . See the partially successful appeal: Peebles v WorkCover Queensland  QCA 21.
 Transcript T1-19, lines 40-42.
 (1990) Aust Torts Reports 81-062 at 68,331. This is the first instance decision. Of course, the case is better known for the High Court’s decision.
 Badenach v Calvert  HCA 18 at  (per French CJ, Kiefel and Keane JJ).
 Ms Sutton’s youngest child was only 5 years of age at the time of the accident.
 Plaintiff’s Written Address at [15(a)].
 See, in particular, Dr Chalk’s opinion that: ‘This lady is not working. I am of the view that she could return to some form of gainful employment, at least up to 20 hours per week.’ On the other hand, Dr Lotz notes: ‘Unable to be employed’.
 Ms Sutton may not have been employed at all for some time. Her children were 5 and 10 at the beginning of the period and 8 and 13 at the end of the period.
 Again, Ms Sutton may not have been employed at all, or she may have been employed part-time for a variety of time periods. Her children were 8 and 13 at the beginning of the period and 11 and 16 at the end of the period.
 Lunz, Assessment of Damages for Personal Injury & Death, (5th edition), Appendix Table 2.
 (1990) Aust Torts Reports 81-062 at 68,331.
 This appears to be at age 55.
 It may be that superannuation will increase from 9.5% in the future. But the possible increase from 9.5% to 11 or 12% sometime in the next 4 years, and reduced to present day value, is relatively minor.
 Transcript T1-7, lines 38-9.
 Exhibit 2.
 Care: bathing, grooming, looking after Ms Sutton, transport to and from all doctor’s appointments, dealing with solicitors, phone calls, emails, grocery shopping (20 hours per month), cleaning, household duties, kids – phone calls, friends and stuff like that, dealing with medication – ‘watching her’ for four or five hours per day: Transcript T-68, lines 41-47; T1-69, line 5; T1-70, line 31.
 Transcript T1-66, line 37. As the Court of Appeal explained in Shaw v Menzies  QCA 197 at , the failure to keep a weekly diary recording tasks and time to perform them by family members, may mean that a deserving plaintiff may not cross the thresholds required by s 59.
 Transcript T1-66, lines 24, 28, 35.
 Transcript T1-67, lines 32-35. The document produced, a letter dated 6 May 2020, postdates 2017 by some 3 years: Transcript T-68, lines 33-34.
 Transcript T1-71, lines 34-36.
 See Land v Dhaliwal  QSC 360 at - and Hunt v Lemura  QSC 378
 Transcript T1-71 line 1.
 Transcript T1-70, line 31.
 Transcript T1-71, line 1.
 Transcript T1-71, line 6.
 Cases referred to by counsel for Allianz are against the proposition: Wormleaton v Thomas & Coffey Limited (No. 4)  NSWSC 260 at -; Walters v Roche [2020 QSC 319 at .
 Plaintiff’s Written Address at .
  QSC 382.
  QSC 382 at .
  QSC 42 at .
  QSC 360 at .
 Exhibit 1 at 22.
 It was not demonstrated that Dr Lotz had any specific knowledge of the current costs of pharmaceuticals.
- Published Case Name:
Kate Ann Sutton v Lauren Nicole Hunter
- Shortened Case Name:
Kate Ann Sutton v Lauren Nicole Hunter
 QSC 249
07 Oct 2021