(a) the claimant's most likely future circumstances but for the injury, and
(b) the assumptions about future earning capacity (and other events) which will form the basis of calculation.
24 It appears that sub-s (1) deals only with the baseline earning capacity which might have been achieved but for the injury. Of course, an assessment of post-injury future earning capacity will also be required, but if sub-s (1) were addressing the assumptions necessary for that part of the exercise it would be unlikely to require them to "accord with" the most likely future circumstances but for the injury. The operation of this provision will vary from case to case and will depend in part on the level of particularity or generality at which the exercise is undertaken. Because there is no challenge in the present case to the findings by the trial judge in respect of the most likely future circumstances, or the assessment of future earning capacity, but for the injury, the operation of this provision need not be addressed further.
25 Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that "the events concerned might have occurred but for the injury". There is clearly a step between the exercise addressed in sub-s (1) and that required by sub-s (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with sub-s (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by sub-s (2).
26 Subsection (3) is designed to ensure transparency in respect of the two steps in the process identified in sub-ss (1) and (2). In the course of the missing steps, namely the assessment of the extent of the disability caused by the accident, further findings will be made as to hypothetical future circumstances. Whether or not those findings must be identified and stated in the Court's reasons, pursuant to sub-s (3), is largely immaterial: they should in any event be stated in accordance with general law principles.
27 One issue which has given rise to debate in the case-law is whether the court, in making an assessment of future economic loss, is entitled to take into account the possibility of departure from the baseline calculation derived from the claimant's most likely future circumstances. For example, the most likely future circumstances might be that a claimant would remain in his or her pre-accident employment but would achieve two levels of promotion over a working life. In accordance with general law principles, in assessing the loss caused by the accident, the court would be entitled to take into account the possibility that a further promotion might have been achieved (with resultant higher earnings) and the possibility that no promotion would have been achieved. The approach under the general law is commonly identified by reference to the principles stated in Norris v Blake (No 2) (1997) 41 NSWLR 49; a different (and more typical) factual example, which arose under the statutory regime, may be seen in Nominal Defendant v Lane. Although s 126(1) requires that the assumptions underlying the baseline calculation should "accord with" the claimant's most likely future circumstances but for the injury, it does not expressly preclude taking into account possible variations from those circumstances. Further, the form of the section is inconsistent with any clear implication excluding other considerations. The facts and arguments in this appeal do not require the resolution of these issues.
28 A further significant uncertainty may arise with respect to a pre-injury susceptibility. Such matters have conventionally been treated in a different way to the general vicissitudes of life: see, eg, Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164 and cf Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638. The notice of appeal in the present matter originally contained a ground asserting that the trial judge had erred in finding that the appellant had a prior psychiatric or psychological condition. That ground was, however, not pressed and accordingly this issue does not arise.
Application of principles
29 The legal challenge raised by the appellant concerns the assessment of post-injury conduct on the part of the appellant and the effectiveness of the proposed treatment. As explained above, this challenge is directed to a step in the assessment of future economic loss which is not covered by s 126 of the MAC Act. Each element involves an assessment of a future hypothetical event and, as the appellant correctly contends, should have been assessed in accordance with the general law principles as to possibilities, as stated in Malec v J C Hutton.
(a) likelihood of obtaining treatment
30 The appellant's case, in seeking to establish error, focused squarely on the finding that "it is likely that the plaintiff will obtain the treatment that she needs": Judgment, p 18. However, that statement was not necessarily in terms inconsistent with her Honour having also taken into account the possibility of a contrary result. To assess the question fully, it is necessary to address the manner in which her Honour dealt with the relevant factual issues.
31 As a preliminary point, it may be noted that there were references in the course of argument to the judgment being "sympathetic" to the appellant. However, such a characterisation is unhelpful. To the extent that her Honour identified factors which might have favoured a lower award, those matters should be addressed in their specific context. For present purposes, her Honour made findings which accepted the appellant's evidence, but in circumstances where the result was arguably unfavourable to the appellant's claim. It is not appropriate to characterise as "sympathy", acceptance as fact of the hopes as to the future expressed by someone with a psychological disability. Rather, it is necessary to assess the findings actually made on their merits.
32 The treatment recommended by Dr Jungfer included both medication (an anti-depressant) and consultations with a psychiatrist: report, 28 May 2007, par 10.1. She further recommended a cognitive behaviour program with a clinical psychologist, involving 20 consultations. The time period over which this treatment was expected to continue was not identified in the report. The only point clarified in her oral evidence was that she expected the drug treatment to last for two years. Nevertheless, it would appear that Dr Jungfer was not envisaging treatment extending over three years and it is clear that her Honour adopted a three year period before the appellant would be ready to enter the workforce, in order to allow for delay in completion of the treatment.
33 There was no suggestion in argument on the appeal that failure to undertake recommended treatment would constitute an unreasonable failure to mitigate the appellant's loss. That was no doubt because the evidence of her "avoidance behaviour" was partly related to her unwillingness to relive the experiences of the accident and its aftermath, and was thus itself causally related to the accident: see generally Fazlic v Milingimbi Community Inc [1982] HCA 3; 150 CLR 345.
34 In assessing that the appellant was likely to undergo treatment as recommended by Dr Jungfer, her Honour expressly took into account her history of avoidance behaviour: Judgment, p 16. Her Honour accepted that the plaintiff had been "afflicted by psychological difficulty in the years before the motor vehicle accident" - Judgment, p 9 - and that there had been, in the past, significant post-accident factors, including, in early 2006, the death of a young man with whom she had been briefly involved: Judgment, p 8. Her Honour also appears to have accepted that, as she was now a young woman, she had developed a greater degree of insight into her problems and her need for treatment.
35 In these circumstances, her Honour was entitled to deal with the question of whether the appellant would accept treatment as one involving a degree of speculation which was capable of being addressed by allowing a longer period than might otherwise have been appropriate for completion of the treatment. This involved an assessment not merely of the psychiatric and psychological evidence concerning the appellant, but of the appellant herself in giving affirmative evidence of her desire for treatment, as at the date of the trial. No reason has been demonstrated to warrant interference with the assessment, having regard to the opportunity afforded the trial judge of hearing and observing the appellant. There was, for example, no explicit evidence from an expert discounting the likelihood of her undergoing treatment because of her psychological condition. Her Honour was entitled to deal with the uncertainty with respect to this matter by a generous allowance for the period prior to completion of the treatment. Though not stated in terms of a Malec analysis, the provision for uncertainty was implicit in her Honour's approach.
(b) effect of treatment
36 The second issue, namely the likely effectiveness of treatment, gives rise to separate questions. The primary contention of the appellant was that her Honour assessed the probable effect of the treatment, without allowing for the possibility of a less favourable outcome. To assess whether that challenge is made good it is necessary to address the relevant medical evidence. In the event that error is established, that consideration may form the basis for a reassessment by this Court.
37 The trial judge was faced with a difficult issue in resolving the extent of the diminution in the appellant's earning capacity resulting from the accident. There was a high degree of imprecision (no doubt understandable) in Dr Jungfer's evidence as to the nature of the improvements likely to result from treatment. In order to relate her psychological state to her earning capacity, evidence was tendered by way of a "vocational assessment report" prepared by Professor Robert Pryor, a vocational psychologist and Adjunct Professor, School of Education, Australian Catholic University. Dr Pryor agreed with Dr Jungfer that as at the date of assessment, namely June 2007, the appellant was unemployable. However, he also accepted the desirability of psychiatric care and clinical psychological intervention and concluded that there were various clerical positions of a kind which might appeal to the appellant and be within her capabilities. In commenting on a more pessimistic report of Dr Thomas Benjamin, Dr Pryor stated in a supplementary report of 26 November 2007 (p 4):
"From a vocational perspective my report concurs with the observation that Ms Amoud's adjustment may be remediable to at least some extent. This gives hope for her ultimate participation in the open labour market.
I agree that formal vocational study is not an option for Ms Amoud and in my report I did not include a training option section. I also concur that some further general education along with ongoing psychological/psychiatric interventions would be of benefit to Ms Amoud and would enhance her subsequent employability."
38 Her Honour found that the appellant was unlikely to complete further study but was "likely to be able to function at the employment level [contemplated] by Professor Pryor, and thus to be likely to earn about $400-$500 per week net for the remainder of her working life": Judgment, pp 27-28. According to the appellant, that was a finding made on the balance of probabilities without any attempt to assess the significant possibility of a less advantageous result for the appellant. As will appear from the evidence discussed below, that submission should be accepted. This was not an example of inapt language masking what had in fact been a proper consideration of possibilities.
39 The appellant also complained that the trial judge had overstated Dr Jungfer's degree of confidence in a favourable outcome following treatment. Thus, having noted the appellant's statement that she wished to have treatment, her Honour continued, "to use Dr Jungfer's words 'there is no reason why she wouldn't improve'": Judgment, p 18.
40 The evidence of Dr Jungfer was imprecise as to the nature and degree of the improvement and was somewhat less categorical than the extract quoted suggested. In her written report Dr Jungfer had noted under the heading "Prognosis":
"Symptom duration … a poor prognostic indicator. In view of the length of time that she has been symptomatic her high avoidance behaviour she has a poor prognostic disorder."
41 This somewhat cryptic statement was apparently intended to indicate that the duration of her symptoms, together with her high avoidance behaviour, gave rise to a poor prognosis. The explanation was clarified to some extent in oral evidence (Tcpt, 12/08/08, pp 160-161) in the following terms:
"Prognosis is what you see the patient - the outcome being in the longer term. There was a paper in the British Journal of Psychiatry, which is widely available, published 1999; it was a prospective study. It looked at what indicated whether people were still symptomatic and it was duration of the symptoms, and, so, the fact that she had been symptomatic a number of years after the accident indicated that her prognosis for symptom recovery was poor."
42 In answer to a question from the trial judge, Dr Jungfer noted that the 1999 study indicated that if people were "still symptomatic 12 months after the accident that that indicated they would have ongoing symptoms": Tcpt, p 161 (10).
43 In commencing cross-examination, counsel for the respondent said that he had "just one question" (Tcpt, p 161 (46)), but with some assistance from her Honour, the cross-examination extended over several pages of transcript. The thrust of it was, however, largely limited to the first question which was that, having proposed treatment, Dr Jungfer could see benefit flowing in the form of improvement for the appellant: Tcpt, p 162 (5). Dr Jungfer agreed that with "evidence-based clinical treatment for her condition … one would expect a reduction of symptoms". Her Honour then sought to clarify how that was to be reconciled with the earlier opinion based upon the 1999 study to which she had referred. She replied:
"It was very evident, though, that Ms Amoud hadn't had aggressive or comprehensive therapy. I put forward a management plan and costings … because … for every patient that is treatment resistant, if you try a different treatment, about one-third get better. So, there is a prospect for improvement, but if you are looking at general prognostic indicators, symptom duration indicates that they are unlikely to get completely better."
44 The cross-examination continued at pp 162-163:
"Q. But would you be hopeful that with this regime of treatment that you have outlined … given that what you have said of this particular person, Ms Amoud - that that treatment would, you would hope, result in improvement in the condition?
A. In her? Some symptomatic improvement, yes.
Q. What about any form of treatment for anger management? Does that come into the mix?
A. The clinical psychological treatment normally involves helping people to identify their feelings and manage it. It doesn't specifically target anger [on] its own, but more, you know, all the types of feelings. So, instructing someone on how to recognise their emotions and give them strategies to control it would hopefully improve it.
Q. And with improvement in that area, that could lead to someone becoming more appealing as an employee?
A. If you regulated their anger?
Q. Yes.
A. Yes.
Q. And do you think that that treatment you have suggested at the bottom would assist in regulating this particular person's anger if she has any?
A. If she fully participated in the program and actually did the treatment, there is no reason why she wouldn't improve."
45 Extracts from Dr Jungfer's evidence, including the last four questions and answers, were included in the judgment at p 16. It seems unlikely that when her Honour came to quote the words "there is no reason why she wouldn't improve" two pages later, that her Honour had forgotten the context. Nevertheless, put in context, those words do not relate to improvement with respect to the appellant's condition generally, but specifically in relation to regulation of anger.
46 Two points are clear from Dr Jungfer's evidence: first, that for people who had remained symptomatic for 12 months or more, two-thirds do not "get better". Secondly, she anticipated "some symptomatic improvement" with the appellant.
47 In these circumstances, the expert evidence established three matters with a degree of clarity: