Baxter v Insurance Australia Limited [2015] ACTSC 273

Baxter v Insurance Australia Limited [2015] ACTSC 273 - ACTSC 2015 case summary — Zoe

[36]

The low-level effects just described are likely to persist at more or less the same level into the future.
The plaintiff Baxter suffered some modest level of pain and discomfort in his postaccident employment with Capital Fine Print but did not suffer the debilitating back spasms he described in his evidence. I have earlier given reasons for rejecting the evidence of debilitating back spasms.
To the extent that the expert evidence of Dr Burgess indicates the presence of a more serious injury, I reject that evidence for a range of reasons including that the doctor's opinion was influenced at least in part by an exaggerated history taken from the plaintiff and that the doctor demonstrated what I would describe as a reluctance to turn his mind to reconsideration of his opinion based on an assumption that the plaintiff had been less than entirely candid with him. For the same reasons I reject the evidence of Dr Burgess at [sic] to the possible eventual need for root decompression surgery.
A consequence of the injuries described and their effects is that, whilst there is little that the plaintiff Baxter is prevented from doing as a result, a number of very strenuous physical activities are likely to be accompanied by some modest level of pain. I find that occasional physiotherapy has been and is likely to continue to be an effective treatment for the pain experienced by the plaintiff Baxter.
I am not persuaded that a basis has been made out for an award of damages under either the principle in Griffiths v Kerkemeyer or under the extended basis in section 100 of the Civil Law (Wrongs) Act 2002. The evidence does not establish a need for relevant services to be provided to the plaintiff Baxter or that he has suffered .any loss of capacity to provide relevant services to others. To the extent that the more strenuous of his ordinary work around the home is more likely to be accompanied by pain that is part of his general damages award.
Consistently with the finding just referred to, vigorous and/or prolonged sexual intercourse in some positions is likely to result in back pain. The plaintiff Baxter gave evidence of acts of sexual intercourse of extraordinary duration pre-accident which he says had to be curtailed significantly after the accident. Again I conclude that he has exaggerated but in any event in assessing damages I have made some allowance for reduced enjoyment of sexual intercourse.
The nature of the employment engaged in by the plaintiff Baxter before the accident is representative of the type of employment to which he is suited by his pre-accident education and abilities. His pre-accident prospects of employment were limited to some extent by the dyslexia which he describes. Some of the types of employment to which he is suited may involve physical activities sufficiently strenuous to cause pain because of the residual effects of his injury. It is possible that some avenues of employment otherwise open to him by virtue of his pre-accident education and abilities may be effectively closed to him because the duties required are so strenuous that the accompanying pain is too great. In assessing the likelihood of this possibility in the future I take into account the testimony of Ms Nitschke about the types of jobs for which she has been looking for the plaintiff Baxter. I regard the scope of her enquiries in that area as relevant whether based on discussions with the plaintiff Baxter or her own observations of his abilities. My overall assessment is that the likelihood of his injuries affecting future employment is small. Nevertheless he is still a young man with many years of what would ordinarily be a normal period of working life ahead of him and he is entitled to be compensated for that risk.
The plaintiff Baxter's ability to effectively carry out the duties which would be involved in operating his own business despite the ongoing effects of his injury must also be seen as an unknown, although his intention to pursue the possibility of doing so is some indication of his own assessment of what he is capable of doing.

[68]

26. Section 99 of the Civil Law (Wrongs) Act 2002 (ACT) permitted the Court to take into account earlier decisions of courts in deciding damages for non-economic loss. The purpose of s 99 was to give effect to recommendation 46 of the Ipp Report: Explanatory Statement, Civil Law (Wrongs) Amendment Bill 2003 at p 5. Recommendation 46 of the Ipp Report included recommendations that in assessing general damages a court may refer to decisions in earlier cases and counsel may bring to the court's attention such awards of general damages (see Ipp Report at p 188). The intention of this was to reverse the decision of the High Court in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 ('Planet Fisheries') which precluded reliance upon all reference to previous decisions in order to establish the appropriate award for general damages. (The same result appears to have been reached without reference to s 99 by the Court of Appeal in Vulin v Cox [2005] ACTCA 22). The intention of the Ipp Report was to promote, over time, consistency of awards for non-economic loss. The contention of the appellant appears to be that because earlier decisions were not specifically referred to by his Honour, he failed to consider them and hence erred by making an award of general damages which was simply too low. This appears to me to be an appropriate way in which to put the challenge to his Honour's decision. I do not accept the submission that, having been referred to cases, his Honour was obliged to then explain in his reasons why the award of general damages was different to the awards in those cases. Such a submission could be put if not only did the existence of those previous decisions provide a basis for challenging the substance of the award of general damages but also that the failure to specifically articulate in the reasons for decision the differences between the instant case and the cases to which a court has been referred might demonstrate error. My view is that the reversal of the rule in Planet Fisheries does not have that latter consequence. Section 99 is a facultative provision designed to assist the Court and promote uniformity of awards rather than one which permits counsel to inflict a further burden upon trial judges in relation to the provision of reasons. A trial judge may find it appropriate to discuss comparable awards: see for example Davies v Grgic [2006] ACTSC 14, but is not obliged to do so. As a consequence I do not consider that the decision below involves an error because of the absence of reasons differentiating the circumstances of the instant case from those to which his Honour was referred. It is, however, necessary to take into account the decisions that the appellant referred to in order to determine whether the award of general damages was erroneously low.

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Baxter v Insurance Australia Limited [2015] ACTSC 273 (8 September 2015)

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