TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON
– WHAT CONSTITUTES GENERALLY: ASSAULT AND/OR BATTERY–
where the
appellant and respondent were married for approximately 15 years and had
Source
Original judgment source is linked above.
Catchwords
TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON– WHAT CONSTITUTES GENERALLY: ASSAULT AND/OR BATTERY–where theappellant and respondent were married for approximately 15 years and hadtwo children – where the appellant and respondentseparated and theplaintiff continued to live in the matrimonial home after separation –where the appellant subsequently movedout of the matrimonial home – wherethe appellant told the respondent that he had hired somebody to rape andsodomise her –where the appellant broke into the respondent’s homewhile she was sleeping and physically assaulted her – where theappellantdenies the assault occurred or that if it did occur, that he was not theperpetrator – where the appellant was acquittedafter a criminal trial– where the respondent brought proceedings for damages for post-traumaticstress disorder – wherethe trial judge found in favour of the respondent
in the order of $967,113.40 – whether the trial judge erred in finding
that
the weight and/or reliability of the evidence before him was such as to
justify judgment in favour of the respondent
DAMAGES – GENERALLY – ASSESSMENT OF DAMAGES IN TORT –
PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY
–
CONTINGENCIES GENERALLY – where the trial judge awarded damages for loss
of earning capacity incurred after 1 November
2021 until trial and for the
period of 16 years from judgment to likely retirement – where a forensic
accountant was engaged
to calculate the respondent’s past and future loss
of earning capacity – where the trial judge provided three reasons
that
warranted a reduction in the figure calculated by the forensic accountant for
the period of 1 November 2021 to trial –
where the trial judge allowed for
a reduction in the figure calculated by the forensic accountant for loss of
earning capacity for
the period of 1 November 2021 to trial by 40 per cent
– where the trial judge also reduced the figure calculated by the forensic
accountant in relation to future loss of earning capacity by 40 per cent –
where the appellant contended that a reduction of
between 50 to 75 per cent
should have been applied to the figure calculated for the period of 1 November
2021 to trial and to the
figure calculated for the period of 16 years from
judgment to likely retirement – whether the reductions applied by the
trial
judge were too low and therefore inadequate
Civil Liability Act 2003 (Qld), s 52, s 55, s 57
Corporations
Act 2001 (Cth), s 921B(3), s 921BA(2), s 921C
AAI Ltd v Marinkovic [2017] 2 Qd R 672
[2017] QCA
54, cited
Amaca Pty Ltd v Karakasch [2004] NSWCA 79,
cited
Amaca Pty Ltd v Latz (2018) 264 CLR 505
[2018] HCA 22,
cited
Amaca Pty Ltd v Werfel (2020) 138 SASR 295
[2020] SASCFC 125,
cited
Arthur Robinson (Grafton) Pty Ltd v Carter (1968)
122 CLR 649
[1968] HCA 9, cited
Bresatz v Przibilla (1962)
108 CLR 541
[1962] HCA 54, cited
Briginshaw v Briginshaw (1938) 60
CLR 336
[1938] HCA 34, considered
Capaldo v Capaldo [2011]
SASCFC 115, cited
Carter v Walker (2010) 32 VR 1
[2010] VSCA 340,
cited
Coulton v Holcombe (1986) 162 CLR 1
[1986] HCA 33,
cited
CSR Ltd v Eddy (2005) 226 CLR 1
[2005] HCA 64, cited
De
Gruchy v The Queen (2002) 211 CLR 85
[2002] HCA 33, cited
De
Sales v Ingrilli (2002) 212 CLR 338
[2002] HCA 52, cited
Derry v
Peek (1889) 14 App Cas 337
[1889] UKHL 1, cited
Devries v Australian
National Railways Commission (1993) 177 CLR 472
[1993] HCA 78,
cited
Elford v FAI General Insurance Co
Ltd [1994] 1 Qd R 258
[1992] QCA
41, cited
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty
Ltd (1981) 146 CLR 336
[1981] HCA 4, cited
Fox v Percy (2003) 214
CLR 118
[2003] HCA 22, cited
Freudhofer v Poledano [1972] VR 287
[1972] VicRp 29, cited
Fuller v Avichem Pty Ltd (t/as Adkins Building
& Hardware) [2019] NSWCA 305, cited
Gardiner v Doerr [2022]
QSC 188, related
Giorginis v Kastrati (1988) 49 SASR 371,
cited
Graham v Baker (1961) 106 CLR 340
[1961] HCA 48,
cited
Griffiths v Kerkemeyer (1977) 139 CLR 161
[1977] HCA 45,
cited
Henville v Walker (2001) 206 CLR 459
[2001] HCA 52,
cited
House v The King (1936) 55 CLR 499
[1936] HCA 40,
cited
Hunter v Scott [1963] Qd R 77, cited
Husher v Husher
(1999) 197 CLR 138
[1999] HCA 47, cited
Kim v Cole [2002] QCA
176, cited
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
[1995] HCA 68, cited
Lee v Lee (2019) 266 CLR 129
[2019] HCA 28,
cited
Leigh v Bruder Expedition Pty Ltd (2020) 6 QR 475
[2020] QCA
246, cited
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA
211, cited
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
[2001] NSWCA 265,
cited
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
[1994] HCA
4, cited
Sharman v Evans (1977) 138 CLR 563
[1977] HCA 8,
cited
State of New South Wales v Moss (2000) 54 NSWLR 536
[2000]
NSWCA 133, considered
State Rail Authority (NSW) v Earthline Constructions
Pty Limited (In Liq) (1999) 73 ALJR 306
[1999] HCA 3,
cited
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333
[2002]
NSWCA 82, cited
Todorovic v Waller (1981) 150 CLR 402
[1981] HCA 72,
considered
University of Wollongong v Metwally (No 2) (1985)
59 ALJR 481
(1985) 60 ALR 68
[1985] HCA 28,
cited
Warren v Coombes (1979) 142 CLR 531
[1979] HCA 9,
cited
Williams v Milotin (1957) 97 CLR 465
[1957] HCA 83,
cited
Wilson v Peisley (1975) 50 ALJR 207
(1975) 7 ALR 571,
cited
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR
485
[1995] HCA 53, cited
Judgment (288 paragraphs)
[1]
TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON - WHAT CONSTITUTES GENERALLY: ASSAULT AND/OR BATTERY- where the appellant and respondent were married for approximately 15 years and had two children - where the appellant and respondent separated and the plaintiff continued to live in the matrimonial home after separation - where the appellant subsequently moved out of the matrimonial home - where the appellant told the respondent that he had hired somebody to rape and sodomise her - where the appellant broke into the respondent's home while she was sleeping and physically assaulted her - where the appellant denies the assault occurred or that if it did occur, that he was not the perpetrator - where the appellant was acquitted after a criminal trial - where the respondent brought proceedings for damages for post-traumatic stress disorder - where the trial judge found in favour of the respondent in the order of $967,113.40 - whether the trial judge erred in finding that the weight and/or reliability of the evidence before him was such as to justify judgment in favour of the respondent
[2]
DAMAGES - GENERALLY - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INCOME LOSS AND LOSS OF EARNING CAPACITY - CONTINGENCIES GENERALLY - where the trial judge awarded damages for loss of earning capacity incurred after 1 November 2021 until trial and for the period of 16 years from judgment to likely retirement - where a forensic accountant was engaged to calculate the respondent's past and future loss of earning capacity - where the trial judge provided three reasons that warranted a reduction in the figure calculated by the forensic accountant for the period of 1 November 2021 to trial - where the trial judge allowed for a reduction in the figure calculated by the forensic accountant for loss of earning capacity for the period of 1 November 2021 to trial by 40 per cent - where the trial judge also reduced the figure calculated by the forensic accountant in relation to future loss of earning capacity by 40 per cent - where the appellant contended that a reduction of between 50 to 75 per cent should have been applied to the figure calculated for the period of 1 November 2021 to trial and to the figure calculated for the period of 16 years from judgment to likely retirement - whether the reductions applied by the trial judge were too low and therefore inadequate
B F Charrington KC, with R B Dickson, for the respondent
[69]
[1] During the early hours of 10 December 2013 a masked man broke into the home of the respondent (the plaintiff), waking her as she slept on her lounge-room couch. He silenced her screams by putting his hand over her mouth and nose. There was a violent struggle as the man dipped pieces of latex into a container of clear liquid and forced them into the plaintiff's mouth as her head was pressed against the couch. The man put a dry cloth into her mouth and placed tape across it, as well as cloth and tape across her eyes. He bound her hands. During the struggle the plaintiff noticed that the man had an erection and he said words to the effect, "Fucking get down, bitch. Stay down, bitch. Fucking get down, bitch."
[2] The man's voice was muffled by his mask. Where his latex glove was torn, she saw that he had no hair on his hand.
[3] Soon, however, the plaintiff recognised from the man's movements and from what he was saying that he was her estranged husband. She called him by name and said words to the effect "James, that's you. I know it's you now."[1] After he eventually removed his mask, the plaintiff saw that her estranged husband had shaved his head. He offered her water and ice for her injuries and they spoke about their matrimonial proceedings.
[4] The plaintiff reported her estranged husband to police. Following a trial, he was acquitted of criminal charges. Later, after an eight-day hearing in the Supreme Court, Cooper J upheld the plaintiff's claim for damages for the tort of battery and awarded her damages, which included components for aggravated and exemplary damages,[2] assessed at $967,113.40, together with costs.
[5] By this appeal the plaintiff's estranged husband, the appellant (the defendant), challenges the finding that he was the assailant, as well as the awards made for past and future loss of earning capacity. The defendant contends that the trial judge failed to consider evidence which demonstrated that he had no motive to engage in wrongdoing and that the reduction of 40 per cent made to parts of the economic loss awards was inadequate.
[6] For the reasons that follow, these contentions must be rejected and the appeal dismissed.
[70]
[7] By the time of the hearing of the appeal the defendant had abandoned most of his 13 appeal grounds but was given leave to add a new appeal ground (ground 4 below). In relation to liability, the defendant maintains two appeal grounds:
That the learned trial judge erred by failing to properly consider and apply the principles in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) and related authorities;
That the learned trial judge erred by finding that the weight and/or reliability of the evidence before him was such as to justify judgment to be made for the plaintiff.
[8] However as pursued before this Court, these grounds effectively became one contention: that the trial judge failed to consider the defendant's evidence that he had no motive to engage in wrongdoing because he was "ecstatic" about the course of his matrimonial proceedings, particularly the arrangements made for access to his children. The defendant contended that the trial judge failed to consider this evidence and that it was necessary to address the question of motive when evaluating the facts in accord with the requirements of Briginshaw.
[9] As for damages, the defendant only pressed two appeal grounds to the following effect:
That the learned trial judge erred by allowing such significant portions for past and future economic loss where the plaintiff's income was destined to decrease as a result of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Hayne Royal Commission) and her unwillingness to re-sit relevant exams to continue giving personal financial advice;
That the learned trial judge assessed damages for economic loss after 1 September 2021 to judgment, and for the future, without regard to s 55 of the and the evidence of Dr Larder - which was accepted by the trial judge - to the effect that there would be recovery sufficient for full employment within two years of March 2022.
[71]
The factual findings concerning the tort of battery
[72]
The parties' relationship before 10 December 2013
[73]
[11] The trial judge referred to the detail of the evidence given by the witnesses before addressing his findings where the evidence was in conflict. It is necessary to refer to both the recitation of the evidence and his Honour's findings in order to address the contentions made on appeal.
[12] The parties commenced their relationship in August 1996 and began living together in 1997. They married on 10 October 1998 and their first child, their son, was born on 2 April 2001 and their second, their daughter, was born on 20 February 2006.
[13] Soon after the birth of their second child, the family moved to new premises at a unit in Ashmore (the Apartment). The parties described their relationship deteriorating between 2000 and 2004. The plaintiff described instances of violence and controlling behaviour by the defendant. The plaintiff described an incident in January 2013 when the defendant pushed her over two chairs, causing her to fall and hit her head on the floor.[3]
[14] Evidence called by the plaintiff from her son corroborated her claim that the defendant had been verbally and physically abusive toward her before 10 December 2013. He described the relationship between his parents as unhealthy and abusive. On several occasions he observed that his father screamed at his mother so violently and for so long that it caused his mother to have difficulty breathing and an ambulance was called.
[15] The parties' son gave evidence about an incident in January 2013 in which, after hearing his father scream at his mother to "stay down", he heard a crumbling sound. When he came downstairs he saw that one of the chairs was broken and his mother was lying down, hysterical. It was not put to him that the verbal abuse by his father or the incident involving the chair did not occur.
[16] The defendant and the plaintiff separated permanently in September 2013. The defendant left the Apartment with the children. The plaintiff engaged family law solicitors who arranged for the children to be returned to her custody on 28 September 2013. On that day the plaintiff changed all the locks and the code for the alarm system at the Apartment.
[74]
The mediation on 6 December and the threats made on 9 December 2013
[75]
[17] On 6 December 2013 the parties attended a mediation to discuss parenting and property issues. They reached agreement on a shared parenting arrangement. Pursuant to that agreement the defendant was to have custody of the children from the morning of Monday, 9 December to the following morning of Thursday, 12 December 2013.
[18] Just before 9.00 am on 9 December 2013, the defendant arrived at the underground carpark at the Apartment complex, to collect the children. No-one else was there. After a delay the defendant telephoned his son, who told his father that they were at the Apartment. The plaintiff then drove their children to meet the defendant in the carpark.
[19] The plaintiff's evidence was that she parked approximately 10 metres from the defendant. She then walked with the children and their bags to the defendant's car. The children got into their father's car. As the plaintiff returned to her own car the defendant followed, talking to the plaintiff.
[20] On the evidence of the plaintiff, the defendant said words to the effect, "This madness has to stop. I can't even afford the school fees. Do you want to look at [our son's] report online? Do you want to look at his report?" The plaintiff said that she had seen the report and she got into her car. The defendant kept talking to her. The plaintiff gave evidence that the defendant then said:
[76]
"I can't even afford the school fees. I've hired someone to rape and sodomise you."
[77]
[21] The plaintiff said the defendant repeated this threat before she drove away from the carpark. After she left the carpark she called her family law solicitors and told them what had happened.
[22] The defendant gave evidence that he only spoke to the plaintiff about their son's report card when they were standing near his car. He then put his children's bags into the back of his car and assisted his daughter with her child seat. He said that the plaintiff then walked back to her car. He got back into his car and left with the children without having any further conversation. He denied the threat attributed to him.
[23] Tellingly, their son gave evidence that he observed his father badgering his mother. He saw that his father was red-faced and talking in an aggressive manner. Though he could not hear what his father was saying, he saw his father follow his mother back to her car and he "seemed to be hassling her".
[78]
[24] In the course of admirably clear, careful reasons the trial judge recounted the movements of the parties after the handover till the early hours of 10 December 2013. Briefly, the plaintiff went to her office and then to a Christmas party before going back to work and, eventually, returning home to the Apartment at around 9.00 pm. She fell asleep on the couch in the lounge room.
[25] The defendant drove the children to his parents' home and they spent the day on his parents' pontoon boat. They bought food for dinner, as well as food for a planned outing on the boat the following day. When they returned to the plaintiff's residence he prepared dinner. The defendant's evidence was that after his children had gone to bed he cut his hair very short and, under cross-examination, he admitted that he also shaved his body hair, including the hair on his arms, wrists and hands. He went to bed around 11.20 pm and did not rise until around 5.30 am the following day.
[26] The plaintiff said that she woke when she heard a sliding noise in the kitchen, which was adjacent to the lounge room. It was dark. The lounge room was only dimly lit. The plaintiff said that she saw a man in the kitchen wearing dark clothing and a black balaclava. She screamed. The man ran to her, jumped on top and forced her back onto the couch. He sat on her chest, placing his hand over her mouth and holding her nose to silence her. The man began to shove the fingers of latex gloves into the plaintiff's mouth.
[27] There was a struggle in which the plaintiff attempted to grab and scratch the latex gloves the man was wearing. As she scratched one of the gloves tore, and the plaintiff said that she saw that the man had no hair on his hand. The man dipped pieces of latex into a container of clear liquid and put them into her mouth whilst pinning the left side of her head to the couch. During this struggle the man forced the plaintiff's head off the couch and onto the tiled floor where she struck her right temple.
[28] The man then put a dry cloth into the plaintiff's mouth and put tape across her mouth, holding her nose for a second time. This caused the plaintiff to be unable to breathe. She continued to struggle as he bound her hands with white garbage bags. He put cloth and tape over her eyes. During this struggle the plaintiff saw that the man had an erection. Though his voice was muffled, she heard him say words to the effect, "Fucking get down, bitch. Stay down, bitch. Fucking get down, bitch."
[79]
"We're gonna call off the lawyers and do things my way ... sack that bitch [the plaintiff's family law solicitor]."
[80]
[35] According to the plaintiff, the defendant said that the plaintiff's family law solicitor was affecting his ability to see his children. The defendant wanted the plaintiff to write a letter of apology to his father because there was artwork in the Apartment that his father wanted back.
[36] The defendant brought the plaintiff a cup of water and bags of ice, which were put on the plaintiff's shoulder and arm. He offered to drive the plaintiff to hospital but she declined, to which the defendant said, "Do you really hate me that much that you wouldn't get in a car with me?"
[37] During the course of their conversation the defendant told the plaintiff that he had got into the house through the louvres in the kitchen. The plaintiff told the defendant that she and the children would never feel safe in the house again. When she asked about the children the defendant said that they were with his mother. Eventually the defendant put on a gardening glove and replaced the louvres in the kitchen and left. The plaintiff made an attempt to photograph and then film the defendant as he was leaving. The video was recorded just before 6.00 am on 10 December 2013.
[38] The plaintiff telephoned her sister, a police officer, who gave evidence about the plaintiff's distressed state. Following a triple 0 call police attended.
[39] At around 8.00 am the plaintiff received a Facetime call from her daughter. In response to the plaintiff's question, her daughter said that they were not with the defendant's mother but they were at the defendant's residence. She said that her father was asleep on the day-bed outside.
[40] After the defendant took his children out on a boat for the day, later that night the plaintiff's family law solicitors arranged for the children to be recovered from the home of the defendant's parents.
[81]
The police investigation - DNA evidence and an absence of CCTV evidence
[82]
[41] After delivering his children, the defendant accompanied police to a police station where, on the advice of his legal representatives, he declined to take part in a record of interview.
[42] The defendant was charged with a number of offences for which he was eventually found not guilty following a trial.
[43] Police observed that the plaintiff had bruising on her body in the region of her upper arms, swelling on the right side of her head near the temple and abrasions on the back of her right shoulder, as well as reddish marks to her face. Photographs were taken. Police detected that the couch in the lounge room at the Apartment was out of place and they identified a piece of latex glove, a yellow plastic cup, a piece of yellow cloth and a white piece of plastic on the floor. They found a plastic container underneath the couch.
[44] Attempts to detect fingerprints did not reveal the defendant's fingerprints at the Apartment.
[45] A DNA analysis was subsequently undertaken of a trace DNA tape lift from a piece of latex glove taken from the lounge room. This revealed a mixed DNA profile, indicating the presence of DNA from two contributors. A senior scientist in the DNA analysis unit of Queensland Health Forensic and Scientific Services, Ms Rika, estimated that it was greater than 100 billion times more likely that the defendant had contributed DNA than if he had not. She also estimated that it was greater than 100 billion times more likely that the plaintiff had contributed to the DNA than if she had not.
[46] A similar estimation was given by the same scientist from a mixed DNA profile obtained from the inside of the garden glove found near the kitchen louvres.
[47] Ms Rika explained that the DNA analysis unit treated the figure of 100 billion as a ceiling, though the statistical likelihood of a contribution may exceed that figure. Her actual estimate of the statistical likelihood in favour of the defendant having contributed DNA to the samples was much higher:
in the case of the piece of latex glove, 5.8 multiplied by 1021; and
in the case of the gardening glove, 5.3 multiplied by 1024.
[48] An analysis of the CCTV footage recorded by a security camera near the defendant's residence showed that there was no recording in the period between 9.00 pm on 9 December and 6.21 am on 10 December 2013. The camera recording function was deactivated during that period.
[83]
The directions given and findings made by the trial judge
[84]
[49] The trial judge directed himself that the plaintiff bore the onus of proving the material facts required to establish her cause of action on the balance of probabilities, even though they amounted to the commission of a crime. His Honour also directed himself that whether a fact has been proved to the reasonable satisfaction of the court was affected by the seriousness of the allegation made, the inherent unlikelihood of the occurrence and the gravity of the consequences flowing from a particular finding. His Honour cited well-known authorities for these directions, including Briginshaw.[5]
[50] The trial judge had regard to these statements of principle when making his factual findings.
[51] It is not presently necessary to go through all of the matters agitated at the trial regarding the variations in the police and other statements of the plaintiff and her son when compared with their evidence. As will be seen, the trial judge generally accepted the evidence of the plaintiff and her son, particularly where it conflicted with the defendant's evidence.
[52] Briefly, the trial judge then found that he was satisfied that in January 2013 the defendant had pushed the plaintiff over chairs, causing her head to hit the ground. His Honour was also satisfied that the defendant had followed the plaintiff and threatened her in the underground carpark at the Apartment complex, stating that he had hired someone to rape and sodomise her. Relying upon the evidence of the plaintiff and her son, the trial judge was satisfied that the threat was made and he did not accept the defendant's account.
[53] So far as the home invasion and assault were concerned, the trial judge gave extensive reasons for his findings that he was satisfied that the plaintiff was assaulted by a masked intruder, and that the intruder was the defendant, in the early hours of 10 December 2013.[6] Despite some minor reservations about the evidence of the plaintiff, he did not form any adverse views of the plaintiff's credibility or reliability generally. He accepted that there were limits on the capacity of a person subjected to a traumatic event to accurately express jumbled impressions and that it was necessary to bear that difficulty in mind when assessing what might appear to be faults in recollection.
[85]
"In the face of Ms Gardiner's identification of Mr Doerr as the assailant and the supporting coincidental matters I have referred to, I do not accept Mr Doerr's denials that he was present at [the Apartment] when the assault occurred or that he was the person who committed the assault."
[86]
[57] In consequence, the trial judge was satisfied that the elements of battery were proved by the plaintiff and that the defendant was liable to meet an award of damages. The trial judge then assessed damages as follows:[11]
[87]
[58] The awards for aggravated and exemplary damages were ostensibly made having regard to prior authority.[12] The trial judge entered judgment for the plaintiff in the sum of $967,113.40.
[59] It will be necessary to return to the assessments made for past and future economic loss.
[88]
[60] In his written outline the defendant challenged the factual findings made by the trial judge, contending that he had erred in failing to properly apply Briginshaw to the submitted case and evidence.[13]
[61] The defendant contended that "routine salient considerations" in an allegation of serious criminal conduct included "opportunity and motive". The defendant contended that the trial judge had failed to address the absence of motive for him to articulate the "rape and sodomy" threat or to have perpetrated the assault because his evidence was that, if anything, he was "absolutely ecstatic" at the outcome of the mediation on 6 December 2013 because he had access to his children and the matter was settled and resolved. This, said the defendant, meant that he had no reason whatsoever to make the alleged threat: he had "everything to lose and nothing to gain". The defendant relied on his own evidence that he anticipated that the Family Court proceedings would be resolved within another three months.
[62] According to the defendant, this case was not merely one of a mere absence of motive: it was a case of "proven absence of motive" which the trial judge had failed to consider.[14]
[63] After referring to various features of the evidence, the defendant contended that the ultimate finding that he was the assailant was "flawed in its reasoning" and the claim ought to have been dismissed or should now be remitted for retrial.
[64] At the hearing of the appeal the defendant's focus narrowed considerably to the proposition that the proven absence of motive was a circumstance that should have been considered.
[89]
The approach of the Court of Appeal to challenges to factual findings
[90]
[65] This Court is not authorised to intervene on an appeal by way of rehearing under s 61 of the Supreme Court of Queensland Act 1991 (Qld) and r 766 of the Uniform Civil Procedure Rules 1999 (Qld) merely so as to substitute its own view as if it were hearing the matter afresh.[15] Rather, the appeal court must consider whether the impugned factual findings were affected by material error.[16] The demonstration of error is essential.[17] The appeal court must conduct its review on appeal having regard to the way in which the parties chose to conduct their litigation for they are generally bound by their conduct of the trial and confined to the issues they litigated in it.[18]
[66] The requirement to conduct a real review of the trial record and an evaluation of the trial judge's reasons may nonetheless warrant this Court drawing its own inferences and conclusions:[19]
[91]
"Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'."
[92]
[67] Whilst the appeal court may draw its own inferences or conclusions from primary findings of fact which are not disputed or which are not affected by error,[20] it is necessary to recognise the "natural limitations" in a review which proceeds "wholly or substantially on the record".[21]
[68] For that reason, there is a recognised reluctance to revisit factual findings which depend on credibility findings.[22] The appeal court proceeds with restraint when addressing those findings because its review is conducted without the benefit of the opportunities available to the trial judge to evaluate the credibility of each witness and to experience the "feeling" of the conduct of a trial which cannot always be "fully shared" from a reading of the evidence on the page:[23]
[93]
"Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." (footnotes omitted)
[94]
[69] Nonetheless, in "some, quite rare, cases" though the facts fall short of being "incontrovertible" the appeal court may decide that the conclusion of the primary judge was "glaringly improbable" or "contrary to compelling inferences".[24] As the High Court explained in Lee v Lee:[25]
[95]
"A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'."
[96]
[70] In that kind of case the appeal court must conduct its own review, making all due allowance for the advantages available to the primary judge and, if material error is disclosed, the appeal court cannot "shrink from giving effect" to its own conclusion.[26]
[97]
[71] The defendant's submissions ultimately amounted to the complaint that his evidence on one aspect of the case of battery was not addressed. In effect, that the trial judge overlooked one item of circumstantial evidence on the question whether the defendant was the assailant. No real attempt was made to otherwise attack the detailed findings made by the trial judge, particularly the credibility findings that favoured the plaintiff.
[72] In those circumstances the task confronting the defendant on this aspect of his appeal is a daunting one.
[73] The intentional torts of assault and battery are often inaccurately interchanged. Strictly, an assault is concerned with a direct and intentional threat that places the plaintiff in reasonable apprehension of an imminent contact with the defendant,[27] whereas battery requires a voluntary and positive act, done with the intention of causing contact with the plaintiff, which directly causes that contact.[28]
[74] In this case the trial judge directed himself as to the elements of the tort of battery in the following way: namely, that the plaintiff must establish on balance that, (1) there was an intentional or negligent act by the defendant, (2) which immediately or directly caused physical contact with the plaintiff and, (3) which was likely to cause injury or affront.[29]
[75] Neither opportunity nor motive are elements of the tort of battery. The plaintiff was under no obligation to prove them. Indeed, even in a case of deceit it is not necessary to prove "evil motive".[30]
[76] Whilst opportunity and motive may in many cases represent important circumstances which need to be considered in order to determine the underlying facts, and therefore whether the elements of the tort or of a crime have been made out, they are not to be confused with the elements of a tort or a crime. Depending on the evidence, it will not always be necessary to address opportunity or motive when determining whether the elements have been established, even where Briginshaw principles are relevant. Whether circumstantial evidence is necessary to be called on these matters invariably depends on the circumstances alleged and the nature of the defence raised in answer.
[98]
"Of course, crimes are not always committed by rational people and very serious crimes can be committed for trivial reasons. But in the present case, it was unlikely that in the course of the struggle between the defendant and his former wife, he was induced to kill her by a belief or a hope that it would result in a satisfactory distribution of their property. The true relevance of the unresolved property dispute was that it aggravated the [defendant's] sense of resentment and in that way it could have been influential in his deciding to act as he did."
[99]
[80] Though the defendant's assertion that he was "ecstatic" was not addressed in terms, the trial judge was careful to explain that he did not accept the defendant's evidence and, ultimately why, having regard to Briginshaw principles, he found that the defendant was the assailant. It cannot be overlooked that the trial judge also found that this was a proper case for an award of exemplary damages so as to demonstrate the court's disapproval of what can only be described as the defendant's brazen and deliberate wrongdoing.[33]
[81] The defendant's assertion that he had a proved absence of motive to attack and assault his estranged wife could not, and cannot now, withstand the findings made by the trial judge including the "rape and sodomy" threat, that the plaintiff was attacked as she described and that the defendant was her assailant. None of his Honour's key findings was "glaringly improbable" or "contrary to compelling inferences".
[82] Rather, in circumstances where the defendant's evidence was comprehensively rejected and where the trial judge found that it was a proper case for an award of exemplary damages, the failure to have regard to one aspect of the defendant's evidence which was, necessarily, implicitly rejected is of no moment.
[83] There can be no criticism of the reasons or reasoning of the trial judge and no proper basis has been disclosed to undermine his findings on this issue.
[84] These appeal grounds must be dismissed.
[100]
The assessment of damages for past and future loss of earning capacity
[101]
[85] The defendant contended that the trial judge erred in awarding damages for losses incurred after 1 November 2021, given the "evidence of substantial income increase, market condition and medical recovery".[34] Although the defendant accepted that the trial judge directed himself as to the application of s 55 of the Civil Liability Act 2003 (Qld), it is said he "failed to abide its terms". Section 55 is in the following terms:
[102]
"55 When earnings cannot be precisely calculated
[103]
(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.
[104]
(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.
[105]
(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.
[106]
(4) The limitation mentioned in section 54(2) applies to an award of damages under this section."
[107]
[86] In his written outline the defendant emphasised the necessity for the court to state the assumptions on which the award is based, as s 55(3) requires. The defendant went so far as to contend that the trial judge failed to "logically proceed to assess the contested components of the economic heads of damage."
[87] Nonetheless, the defendant did not cavil with the assessment made for past economic loss to 31 October 2021, being an award of $252,428, nor with the award of $67,723 for replacement labour costs.[35]
[88] The defendant's contentions were confined to challenging the assessments made for past economic loss of $37,972 for the period from 1 November 2021 to trial, as well as for future loss of earning capacity of $403,625 for the period of 16 years from judgment to likely retirement.[36]
[108]
The factual findings regarding past and future loss of earning capacity
[109]
The plaintiff's injuries and inability to work
[110]
[89] Again, it is necessary to consider the recitation of the evidence by the trial judge as well as his key findings.
[90] By the time of trial the plaintiff was 51 years. She had been 42 years at the time of the battery. She has, as mentioned, two children with the defendant. The plaintiff was described as having an effervescent personality before 10 December 2013. She was also described as vibrant, driven, strong-willed and highly functioning.
[91] Immediately following the attack on 10 December 2013, it was observed that the plaintiff had to be held up as she walked. She was in pain and distressed. She was seen to be tearful, shaking and traumatised.
[92] The plaintiff was unable to sleep that night and was heard to be sobbing. Neither the plaintiff nor her children ever returned to live in the Apartment. They stayed in alternative accommodation, including with family members. The plaintiff was described as remaining in a state of shock and improvement took a "very long time".[37]
[93] The plaintiff's first consultation with Dr Love, a general practitioner, on the evening of 10 December 2013 revealed her to be "clearly distressed", crying and agitated. Examination revealed swelling on the right side of the plaintiff's forehead, a slight swelling of her lower lip, as well as linear abrasions overlaying her right scapular and posterior shoulder. There was an ovoid-shaped bruise on her right upper arm, medial aspect. There were three circular bruises on the right upper arm, proximal to the elbow. Dr Love detected an abrasion over the right olecranon and two circular bruises on the left upper arm proximal to the elbow. There were fine abrasions on the right side of the plaintiff's upper and lower lips in a radial pattern.
[94] A further consultation with Dr Love the following day revealed new bruising to the outer canthus of the right eye and a referral was made to Dr Fritzon, a registered forensic and clinical psychologist.
[95] The plaintiff first consulted with Dr Fritzon on 4 January 2014 when a diagnosis of post-traumatic stress disorder was made. The plaintiff continued to be treated by Dr Fritzon. For the first six months the consultations were weekly and thereafter fortnightly. By July 2022 the plaintiff had attended 133 sessions with Dr Fritzon.
[111]
The plaintiff's business in the financial services industry
[112]
[97] The plaintiff commenced working in the financial services industry during 1996. In 1997 she joined Coast Wide Insurance Brokers in Southport. After an acquisition by PSC Group, that business became known as PSC Coast Wide Insurance Brokers (Coast Wide). In connection with that transaction the plaintiff received shares in the PSC Group which later listed on the Australian Stock Exchange during 2015. The plaintiff derived dividend income from that shareholding.
[98] The plaintiff's duties as an insurance agent required that she sell personal risk insurance products, such as life insurance, total and permanent disability insurance, trauma insurance and income protection insurance. The plaintiff operated on a "full advice" model under which she gave advice and made recommendations to clients, taking into account their personal circumstances, as well as their financial position and medical history.
[99] The plaintiff conducted her business through Caitlin Services Pty Ltd (Caitlin), incorporated in 1996. That company owned the plaintiff's register of clients and received the commissions paid from insurance products sold by the plaintiff. From 2006 that company employed an administrative assistant three days each week.
[100] In 2004 the plaintiff obtained a Diploma of Financial Services. That qualification was a requirement for continued practice as a personal risk insurance agent. From the same time the plaintiff and her partners at Coast Wide were required to obtain an Australian Financial Services Licence or enter an arrangement to act as an authorised representative of a dealer group which held that licence. As a result, the plaintiff became an authorised representative of Millenium3. That occurred through the medium of Coast Wide, which became a corporate authorised representative of Millenium3. Caitlin became a corporate authorised representative of Coast Wide and the plaintiff became an authorised representative of Caitlin.
[101] Over time the plaintiff's business grew. In 2005 she acquired a register of between 30 and 40 clients from Mr Fowler, one of the former partners in Coast Wide. That acquisition cost $70,000. In 2013 the plaintiff acquired another register of between 30 and 40 clients from another former partner in Coast Wide, Mr Wardrop. That acquisition cost $100,000.
[113]
The plaintiff's return to work; full and general advice business models
[114]
[104] As a result of her injuries sustained on 10 December 2013 the plaintiff was unable to resume work, despite attempting to do so. In January 2014 the plaintiff made a claim under her income protection insurance policy and, following a 60‑day waiting period, received income protection benefits for 18 months.
[105] The plaintiff's evidence was that when she attempted to return to work her anxiety made it impossible to meet with new clients. She had difficulty concentrating. This impeded her capacity to investigate a client's personal circumstances and prepare the necessary documentation setting out her advice as to which insurance products were required.
[106] Accordingly in January 2014 the plaintiff engaged Mr Wardrop to manage a number of her existing clients. Mr Wardrop was paid by the plaintiff for this assistance. The plaintiff also received administrative assistance from Coast Wide. The cost of this administrative assistance was met from commissions paid.
[107] Over time the plaintiff's inability to service her clients resulted in a loss of clients. The plaintiff estimated she lost several clients each week. By the time of trial the plaintiff estimated that her client register was down by half to around 350 clients.
[108] Despite attempting to return to work on four occasions, the plaintiff was not able to do so permanently until 2016. Despite working full-time, she could not match her previous capacity because of anxiety and an inability to concentrate. She found that her energy levels remained very low.
[109] The plaintiff's evidence about her impaired capacity for work was supported by medical evidence called from psychiatrists and doctors. Their evidence was that the plaintiff suffered an impairment of cognitive functioning associated with concentration and memory as a result of her psychological injury.[38]
[110] During 2015 the insurance agents at Coast Wide, apart from the plaintiff, ceased providing advice as representatives of Millenium3. They became authorised representatives of Certus Life Pty Ltd (Certus Life), a member of the PSC Group. Because of difficulties associated with her psychological injury, the plaintiff was unable to make the transition until 2017.[39]
[111] During 2017 the plaintiff commenced conducting her business through a company called Averse To Risk Pty Ltd, as trustee for the Flame Tree Trust, instead of Caitlin.
[115]
[119] The trial judge was satisfied that the plaintiff suffered a loss of earnings because of her psychological injury. Strictly, his Honour must be taken to have made the finding that, by reason of the plaintiff's psychological injury, she sustained a loss of earning capacity which was productive of financial loss.[43]
[120] Although the question whether the loss sustained by the plaintiff was not sustained by her personally, but instead by one of the entities under her control, was initially raised as an appeal ground, that ground was abandoned and there is no need to address the complications that sometimes arise where loss is sustained by a corporate or other entity by reason of a plaintiff's impaired earning capacity.[44]
[116]
The expert opinion evidence of Mr Michael Lee
[117]
[121] The quantification of the plaintiff's claim for damages for past and future loss of earning capacity was based upon a report provided by Mr Michael Lee, a forensic accountant. Mr Lee was careful to emphasise that he was not assessing the plaintiff's actual economic loss and he was not, for example, offering any opinion as to the appropriate reduction to be made, if any, for general contingencies.
[122] Mr Lee reviewed and relied on the financial statements and tax returns of the plaintiff and her various entities and prepared tables, based on a range of scenarios, for the purposes of quantifying the plaintiff's economic loss claim.
[123] Mr Lee's analysis concerned the plaintiff's income for the decade or so commencing in the 2010 financial year through to the 2021 financial year. In the year of the assault and battery the plaintiff's taxable income was just under $190,000. In the years following her income generally increased. For example, by the financial year 2020 the plaintiff's income was just over $324,000, whereas in the 2021 financial year it was just over $302,000.
[124] The trial judge rejected the defendant's contention that the general increase in the plaintiff's income over the period demonstrated that there had been no loss of earnings by reason of the plaintiff's compensable injury. The trial judge explained that the plaintiff's personal income did not necessarily reflect the income generated by her work as an insurance agent and, as a result, it was necessary to focus on the plaintiff's earnings as an insurance agent rather than her combined sources of personal income. Those sources included dividend income from the plaintiff's PSC Group shares, as well as from other investments.[45]
[125] Mr Lee's assessment of the gross income from the plaintiff's work as an insurance agent, that is to say from her business, showed a decreased income following the 2014 financial year. That assessment entailed a consideration of the increased external labour costs incurred, as well as the reduction in gross income of the business. Mr Lee assessed the plaintiff's replacement labour costs in an amount of $67,723, which sum was accepted by the trial judge as accurate and appropriate.[46]
[126] Mr Lee then assessed the reduction in "gross income after tax" of the business for the period from 10 December 2013 to 31 October 2021. That was undertaken on the basis of three different scenarios. These resulted in calculations of $252,428, a mid‑range of $335,695 and an upper range of $418,004. Although the plaintiff urged acceptance of the mid-range assessment, the trial judge rejected that in favour of the lowest, described as the most conservative scenario or .
[118]
"I accept Ms Gardiner's submission that Mr Lee's analysis represents the most sensible analysis of the scope of her past economic loss. The cross-examination of Mr Lee did not cause me to question the appropriateness of the methodology he applied in quantifying the loss. Mr Doerr led no evidence to challenge Mr Lee's methodology or his assessment of the loss Ms Gardiner suffered based on the application of that methodology."
[119]
[133] Where the parties consent, or at least acquiesce, in the taking of evidence on economic loss by reference to opinions expressed and calculations made in a forensic accounting report, there can be no objection in principle and this Court must proceed on the basis that the parties are bound by the approach they took when reviewing the resulting assessment on appeal.[50]
[120]
The assessment for the 12 months to trial - 3 reasons for the reduction of 40 per cent
[121]
[134] For the period of around one year to trial, the trial judge commenced with Mr Lee's calculation which was based on the same approach he had taken under Scenario 1, resulting in a calculation of lost gross income of the business of $63,287.
[135] The trial judge nevertheless determined that the award should be less than the amount calculated by Mr Lee under Scenario 1.
[136] The trial judge gave three reasons why the award of damages should be less than the amount calculated by Mr Lee. Although the defendant readily conceded that this amount is relatively small, it is necessary to address the trial judge's reasons because they represent the basis for the award made for future loss of earning capacity as well.
[137] The first reason was that the plaintiff had told Dr Larder that she failed the FASEA examination "more due to her unfamiliarity with the material that was tested than the impact of her psychological injury". The plaintiff's evidence was that when she failed the exam she "absolutely panicked, froze". She explained that she had three hours with 15 minutes reading and that only one question in 70 related to what she had been doing for 25 years. The plaintiff said that the questions were different, so there were thousands of people "who do what I do who have just said it's too hard, we're not doing it, and have left the industry".[51]
[138] The second reason given by the trial judge was that the medical evidence showed that the plaintiff's psychological injury "improved significantly as time has progressed". The trial judge referred to Dr Larder's evidence that it was likely that the plaintiff would "be able to negotiate her current work-related regulatory changes and continue to develop her business and within two years return to full time employment". In re‑examination Dr Larder said that he had not been aware of the detail of the change in the plaintiff's business from a "full advice" model to a "general advice" model but there was, according to the trial judge, nothing in Dr Larder's re-examination which detracted from his evidence regarding "the significant improvement" in the plaintiff's condition over time.[52]
[139] The third reason given by the trial judge for awarding less than the amount calculated by Mr Lee was that the improvement in the plaintiff's psychological condition over time has been accompanied by an improvement in the gross income of her business. This improvement was described by the trial judge as "marked". The trial judge gave the example of the three financial quarters in the period to March 2022 where gross income earned was just under $200,000, being greater than the gross income earned in any of the previous four financial years. The judge said that the gross income of the business after 30 June 2021 did not appear to be "consistent with Ms Gardiner's psychological condition continuing to cause any ongoing reduction in gross income". The trial judge made this observation notwithstanding that he was conscious of the lag between the time when work is performed and when income is received, particularly where the income takes the form of trailing commissions.
[122]
The assessment of future loss - reduction of 40 per cent
[123]
[141] For the purposes of assessing future loss of earning capacity, the trial judge again commenced with the calculation made by Mr Lee under Scenario 1 and for the same three reasons he reduced the calculation of $672,709 by 40 per cent. That reduction resulted in the sum of $403,625.[55]
[142] The trial judge then made a further reduction of 15 per cent to account for "contingencies", which his Honour said included the possibility that the plaintiff might in the future achieve the qualifications needed for her to return to a "full advice" model.
[143] That resulted in an award for future loss of earning capacity of $343,081.[56]
[144] As the defendant pointed out at the hearing of this appeal, these consecutive reductions amounted to a total reduction in the assessment of future loss of earning capacity of just over 50 per cent.
[124]
The approach of the Court of Appeal when reviewing a damages assessment
[125]
[145] The appeal court must commence its review of a damages assessment by recognising the restraint required on an appeal by way of rehearing when determining whether there is established a material error in fact-finding:[57]
[126]
"What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing..."
[127]
[146] There are additional impediments to intervention before an appeal court is authorised to revisit an assessment of damages made pursuant to common law principles. The authorities demonstrate that the approach required of an appeal court when reviewing a damages assessment bears some similarity to that which applies when reviewing an exercise of discretion pursuant to the principles described in House v King:[58]
[128]
"... as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages."
[129]
[147] In Miller v Jennings, Dixon CJ and Kitto J held that before an appeal court could interfere with an award of damages it must be satisfied that the trial judge "has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered".[59] The reference to "an erroneous estimate of the damage" is one made beyond the limits of what a sound discretionary judgment could reasonably adopt, being either "so inordinately low or so inordinately high" as to be beyond the proper entitlement of a party.[60]
[148] This requirement for restraint recognises that the task undertaken by the trial judge is an exercise in judgment rather than calculation. In Todorovic v Waller, Gibbs CJ and Wilson J described the task in the following way:[61]
[130]
"It is true that as the assessment of damages has become more sophisticated, calculations are made in an attempt to achieve greater precision. Such calculations may sometimes give a false appearance of accuracy. Some of the figures on which they are based are the result of estimate or speculation. In the case of loss of earning capacity it is necessary to compare what the plaintiff might have earned if he had not suffered the injury with what he is likely to earn in his injured condition. In many cases this means that the court has to engage in 'a double exercise in the art of prophesying'... Of course in some cases of serious injury it will be possible to say that the plaintiff is probably capable of earning nothing in the future. However, in no case can there be any solid basis on which to determine what the plaintiff would have earned if he had not received the injuries in respect of which he sues. Actuarial tables will show the average number of years which will be lived after a certain age by those alive at that age, but will not show that it is probable that the plaintiff, even if in good health, would have conformed to the average. No evidence can possibly indicate whether the plaintiff, had he not been injured, would have remained in good health, and continued to be employed at any particular rate of earnings. For these reasons, damages for financial loss likely to result from personal injury 'can only be an estimate, often a very rough estimate, of the present value of his prospective loss'... Ultimately the process must always be one of judgment rather than calculation."
[131]
[149] Accordingly, the appeal court does not commence with the assessment it would have made had it been charged with responsibility for assessing the plaintiff's damages. The appeal court commences with the assessment made by the trial judge in order to determine whether it is affected by material error of a kind which warrants intervention on appeal.
[150] The key question for the appeal court is whether material error of the kind alleged on appeal has been shown, whether that be a specific error in making the assessment or an error in the outcome of the assessment.
[151] It is now traditional to address only those heads of damage or those aspects of the award attacked on appeal.[62] An appeal court is only permitted to intervene if a material error is demonstrated. Whilst in many cases material error in a head of damage or the award will warrant intervention on appeal, whether the error can be specifically identified in the assessment process or only in the outcome of the assessment, these kinds of errors serve to demonstrate the existence of an error made in the ultimate award made in favour of the plaintiff. In most cases intervention takes the form of setting aside the award and reassessing the damages, although in some cases it may be necessary to remit the matter for reassessment where, for example, further evidence must be received or findings must be made and that cannot be undertaken by the appeal court.
[132]
[152] The defendant's submissions ultimately amounted to the contention that the reduction made by the trial judge of 40 per cent to the two periods commencing twelve months before trial was too low. The defendant contended that the reduction should have been one in the range of 50 to 75 per cent for the period from 1 November 2021 to trial, as well as from the date of judgment to anticipated retirement.
[153] This submission was made notwithstanding the additional 15 per cent reduction made on account of contingencies in respect of future loss of earning capacity. The defendant's submissions seemed to assume that this 15 per cent reduction should be made in addition to any reduction made in the range 50 to 75 per cent for future loss of earning capacity.
[154] Although the defendant criticised the approach of the trial judge having regard to s 55(3) of the Civil Liability Act (Qld), on the defendant's preferred approach the method employed by the trial judge would also be employed by this Court, albeit that the reduction would simply be higher. It was not, for example, suggested that the trial judge or this Court should state assumptions additional to or different from those stated by the trial judge. No attack was made to the primary findings of fact or the inferences drawn from those by the trial judge. Rather the defendant pointed to some findings made by the trial judge and argued that, by reference to those findings, a larger reduction than 40 per cent was required.
[155] As developed on appeal, the defendant's contention was that the award of damages was a wholly erroneous estimate of the damage suffered because the evidence from Dr Larder, which was accepted by the trial judge, was to the effect that within two years the plaintiff would resume normal function and, by implication, would no longer be experiencing any impairment in earning capacity. The defendant emphasised that on this basis the 40 per cent reduction for a period exceeding 16 years to retirement was simply inadequate.
[156] In the course of argument there was some debate before this Court about the proper interpretation of Dr Larder's evidence and the trial judge's findings about the evidence, as well about the principles to be applied when addressing findings concerning past events, findings concerning future events and the scope for reductions to be made on account of contingencies.
[133]
The different kinds of findings made - the purpose of an award of damages for loss of earning capacity and contingencies
[134]
[159] For the purposes of resolving this aspect of the appeal it is necessary to distinguish between the different kinds of findings made by a court where past and future economic loss are in issue.
[160] These findings may be addressed as, (1) findings made about the existence of past events, (2) findings made about past and future hypothetical events and, (3) findings made about the effect of contingencies on any award of damages contemplated.
[161] It is first helpful to address the purpose of an award of damages for loss of earning capacity.
[162] The tort of battery is a species of trespass to the person, a so-called "intentional tort".[63] Like damages for negligently caused personal injury, damages for battery are compensatory in nature. They are intended to place the injured plaintiff in the same position she or he would have been had there been no wrongdoing.[64]
[163] There are well-recognised differences between battery and negligence, such as the difference between the "natural and probable consequences" of battery as distinct from those that are reasonably foreseeable in negligence:[65]
[135]
"...once battery is established, immediate harm and consequential damage are compensable. The boundary of entitlement is set by the conception of 'natural and probable consequence' (or 'result'). That appears to be a common control mechanism for intentional torts. See, for instance, Palmer Bruyn & Parker Pty Ltd v Parsons,[66] a case of alleged injurious falsehood. The same limiting conception was referred to by Spigelman CJ in TCN Channel Nine Pty Ltd v Anning[67] (a case of trespass to land) and by his Honour in Nationwide News Pty Ltd v Naidu,[68] (a case pleaded in negligence and in the Wilkinson tort). It is not a test of reasonable foreseeability, even though the two tests might yield the same result in some, or even many, cases."
[136]
[164] The parties to this appeal treated the cases on the recovery of damages in negligence as relevant to the issues arising on this appeal. The damages recoverable by an injured plaintiff in a case of personal injury are usually described as encompassing three types of loss:[69]
[137]
(i) non-pecuniary losses (such as pain and suffering);
(ii) loss of earning capacity; and
(iii) actual financial loss (sometimes referred to as special damages, relating to matters such as medical and other expenses).
[138]
[165] Though claims for economic loss are often divided for convenience into past and future loss of earning capacity, strictly these remain two components of the one head of loss. Both depend on whether the plaintiff has proved a diminution of earning capacity which is or may be productive of financial loss.[70] As the High Court explained in Husher v Husher, a case of negligence:[71]
[139]
"... If the victim's pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury, the victim is to be compensated by an amount that reflects the financial consequences that follow from the impairment.
[140]
Since at least Graham v Baker[72] it has been recognised that it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss'.[73] But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'.[74] Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained."
[141]
[166] That is, the plaintiff must prove both impaired earning capacity and the extent to which that is or may be productive of financial loss.
[167] Consistently with authorities such as Malec v JC Hutton Pty Ltd[75] and Sellars v Adelaide Petroleum NL,[76] once the court is satisfied on the balance of probabilities that the diminution of earning capacity will be productive of some financial loss, it must then assess the value of that loss by reference to the range of applicable probabilities, possibilities and contingencies. This second step usually requires that the plaintiff demonstrate loss by reference to the difference between what was likely to have been earned without the tortiously-inflicted injury, and what is likely to be earned with that injury.[77] That is, the court compares the plaintiff's past and future hypothetical earnings against the plaintiff's actual earnings whilst injured.
[168] There is a recognised difference between an assessment which is made for a loss of earning capacity, rather than one which is confined to lost earnings.
[169] In Freudhofer v Poledano, the Full Court of the Supreme Court of Victoria considered an assessment of damages for personal injury following a motor accident.[78] The Court discussed the appropriateness of describing economic loss as "loss of earnings" as distinct from "loss of earning capacity". Relying upon the decision of Bray CJ in Forsberg v Maslin,[79] the Court made it clear that the latter phrase is the correct expression, though it is not necessarily misleading to use the former expression.
[170] As McHugh J explained in Medlin v State Government Insurance Commission, there is somewhat greater scope for an award of damages to be made where it is based on lost or impaired earning capacity rather than merely lost earnings:[80]
[142]
"In Mann v Ellbourn[81] the Full Court of South Australia preferred an approach that compensates the plaintiff to the extent that the loss of earning capacity has resulted in a loss of probable earnings and the loss of a chance to exploit any residual capacity that would probably not have been exploited even if the accident had not occurred. I see nothing wrong with that approach in most cases. It gives effect to the fundamental principle underlying the assessment of damages that a person is only compensated for what he or she has actually lost. But, as the judgments of the Supreme Court in this case show, it is an approach that can mislead a court in a case where the plaintiff continues in employment. It is always necessary to bear in mind as Bright J said in Mann[82] that 'one first of all determines that there has been a loss of capacity, and then having regard to the established facts of the past and the probabilities of the future one determines the damages that flow from the loss of that capacity'."
[143]
[171] So, even if a plaintiff will likely reach a stage where no identifiable economic loss is being sustained from week to week, that does not necessarily mean that there is no scope for an award of damages for impaired earning capacity.
[172] The plaintiff who is not experiencing an ongoing loss may still be ruled out of some forms of employment or at risk of a future deterioration in the compensable condition which will result in lost or reduced earnings.[83] In that event, and subject to satisfying the requirements of s 55 of the Civil Liability Act, the proved impairment in earning capacity may still sound in damages even though the future prospect of financial loss is thought to be low.[84]
[173] It is, finally, necessary to bear in mind what is encompassed in an allowance for contingencies. In Arthur Robinson (Grafton) Pty Ltd v Carter Barwick CJ explained that the courts take into account as "contingencies" or "vicissitudes" possible events which might have affected earning capacity in any event:[85]
[144]
"Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are superseded by new and different techniques, the onset and effect of automation and the mere daily vicissitudes of life are not adequately reflected by merely - and blindly - taking some percentage reduction of a sum which ignores them."
[145]
[174] The reference here to accidents must generally be understood to be a reference only to non-compensable accidents,[86] and the allowance for contingencies must reflect the likely impact on the plaintiff's earning capacity, not merely the workforce generally.[87]
[175] Depending on the evidence led in a case, it may sometimes be helpful to consider the particular contingencies which can be identified and applied to a plaintiff's employment or business earnings, as distinct from the ordinary or general contingencies which may affect a plaintiff's continued participation in the workforce.
[176] A particular contingency may be the prospect that the plaintiff would have been able to increase the hours of employment in the occupation in which she or he was working at the time of the injury. Another example of a particular, positive contingency may be the prospect of increasing a client portfolio and earnings in a profession or business. An example of a negative contingency may be the prospect of adverse changes in the industry and the prospective loss of the plaintiff's employment, particular kind of work or business. These kinds of considerations will ordinarily depend on the evidence given about the plaintiff's particular employment, industry or business as well as the wages or earnings on offer leading to trial.
[177] By contrast, a general contingency may be the prospect that the plaintiff might have been put out of the workforce by other injuries, ailments, or unemployment in any event. In many cases there may be no specific evidence about these matters, save the inferences that might be drawn from evidence about the kind of employment or business in which the plaintiff was engaged and whether, for example, it entails heavy manual duties. That may be a relevant consideration whether or not a plaintiff's earning capacity has been merely impaired or completely destroyed.[88] However, as Windeyer J warned in Bresatz v Przibilla:[89] "[a]ll 'contingencies' are not adverse: all 'vicissitudes' are not harmful".
[146]
[178] The starting point is that when the court is determining whether loss was sustained before the trial, it is in part determining the existence or otherwise of past events. At common law the relevant causal connection is demonstrated where the compensable cause has made a material contribution to the event causing loss, in which case the event is treated as having been caused by the defendant's wrongdoing.[90]
[179] Findings made about past events are factual findings made on the balance of probabilities. Where the probability of an event having occurred is more likely than not, then the event is treated as having happened. Examples of that in this case are provided by the findings made regarding the existence of the plaintiff's physical and psychological injuries, as well as the effect they had on the plaintiff's earning capacity and earnings before trial. These are findings made about past events.
[180] As the High Court explained in Malec v JC Hutton Pty Ltd, where damages are based on whether events have or have not occurred, damages are assessed on an "all or nothing approach":[91]
[147]
"A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach."
[148]
[181] As will be seen, there is an important difference between findings made about past events and findings made about hypothetical events.
[149]
(2) The determination of past and future hypothetical events
[150]
[182] The difference between findings about past events and findings about hypothetical events can be encapsulated in the proposition that the court cannot generally know for certain whether hypothetical events will occur, whether those hypothetical events concern the past or the future.
[183] Conceptually it is easiest to commence with future events. When assessing damages for future losses the court is necessarily making a finding about something which has not yet happened and, depending on the evidence, may never happen. Accordingly, as the High Court explained in Malec v JC Hutton Pty Ltd, the assessment of future events is not undertaken on an "all or nothing" basis:[92]
[151]
"But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. ... Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle[1970] AC 166, 174; Davies v Taylor[1974] AC 207, 212, 219; McIntosh v Williams[1979] 2 NSWLR 543, 550-551."
[152]
[184] At the end of this passage the High Court added:[93]
[153]
"The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
[154]
[185] Let it be assumed that a plaintiff has established, as a fact, that earning capacity has been impaired, causing financial loss. Whether and to what extent that impairment sounds in damages for the future will normally turn on the present value of the exercise of that earning capacity over the period of the plaintiff's likely career to retirement. That analysis requires the court to make a determination about a future hypothetical.[94] The court will usually start with a calculation which commences from the date of trial based on the appropriate weekly loss, using the statutory multiplier to anticipated retirement.[95]
[186] However, as the High Court explained in Malec v JC Hutton Pty Ltd, no finding about the future should be made on the basis that future events are treated as certain. The court must also consider the degree of probability that an event would have occurred, or might occur, and adjust its award of damages to reflect the degree of probability.[96] That adjustment may increase or reduce the loss calculation depending on the findings made about the likely or possible effect of future events, and about positive and negative contingencies.
[187] It is important to recognise, as the High Court explained in Malec v JC Hutton Pty Ltd, that this same approach applies to past events which are hypothetical in nature.
[188] Whilst a court can determine on the balance of probability whether a plaintiff was or was not injured, and whether earning capacity was impaired as a result, that is not the end of the analysis. As a matter of causation it is necessary to address what would likely have occurred regardless of the defendant's wrongdoing. That requires the court to make a determination about a past hypothetical. The court will consider what the plaintiff has earned following a compensable injury and contrast that with what the plaintiff was likely to have earned without the compensable injury, down to the date of trial.
[189] It is when addressing the hypothetical, the counter-factual, that there necessarily arises scope for uncertainty and, as a result, scope for contingencies to affect the assessment of past and future economic loss.
[155]
(3) Findings made about the effect of contingencies on any award
[156]
[190] The authorities demonstrate that there will be cases where it is appropriate to make an allowance for contingencies even though the court is dealing with past events. To reiterate what was explained in Malec v JC Hutton Pty Ltd:[97]
[157]
"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. ... The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
[158]
[191] In Griffiths v Kerkemeyer Mason J addressed an allowance made for economic loss doen to the date of judgment in a case where no discount had been made for contingencies.[98] After referring to the decision of Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter,[99] Mason J accepted that in a case where four years had elapsed between injury and trial, that tended to suggest that "some discount might have been made".
[192] There are many cases where the courts have accepted that the potential for adverse contingencies to operate before trial should be reflected in some deduction, even where the damages are awarded for past losses. For example, in Freudhofer v Poledano the Full Court considered an assessment of damages for personal injury following a motor accident.[100] The Court held that it was appropriate to take into account contingencies "operating between accident and trial". These reflected absences from the workforce and uncertainty as to when the plaintiff might have returned to work thereafter regardless of her motor accident injuries.[101]
[193] Similarly, in Norris v Blake (No 2) some reduction was made to past loss to account for the recognised uncertainty of a career path as an actor.[102] There are more recent examples of similar reductions made for contingencies in respect of losses assessed to the date of trial.[103]
[194] These authorities demonstrate the distinction drawn between findings made about the consequences of compensable injuries on a plaintiff's earning capacity, and the findings which may be made on the counter‑factual, that is, on the determination of what would occur or might have occurred regardless of the defendant's wrongdoing. These findings address the difference between what the plaintiff has earned and what the plaintiff might have earned but for a compensable injury which has impaired the capacity to earn income. It is when looking to what might have happened were it not for the defendant's wrongdoing, the hypothetical or counter-factual,[104] that the court will usually take account of contingencies, whether they be particular or general contingencies which would or may have affected the plaintiff's earning capacity and earnings.
[159]
The findings made about past events in this case
[160]
[198] There is, with respect, some tension in the findings made by his Honour regarding past events when determining the assessment of damages for past and future loss of earning capacity. The clearest illustration of that tension is provided by his Honour's findings about why the plaintiff failed to pass her FASEA examination. At [315] the trial judge explained that the main reason for the plaintiff's change from a "full advice" to a "general advice" business model was that the plaintiff failed the examination:[110]
[161]
"... in February 2020, due to the impact of her psychological injury on her concentration and memory, Ms Gardiner failed to pass an examination overseen by [FASEA]. ... Ms Gardiner made the decision that she would not continue to try to meet that requirement."
[162]
[199] However, later in his reasons at [333], the first reason given by his Honour for discounting the amount calculated by Mr Lee under Scenario 1 was that the plaintiff failed the examination "more due to her unfamiliarity with the material ... than the impact of her psychological injury".[111]
[200] Consistently with the reasons of the High Court in Malec v JC Hutton Pty Ltd, his Honour was required to determine on the balance of probabilities whether, as a matter of past fact, the plaintiff failed the FASEA examination because of her compensable psychological condition. That aspect of the factual basis for the assessment was, as the High Court explained, "all or nothing". If the trial judge was left in a state of uncertainty as to whether the plaintiff had established this aspect of her claim concerning a past event, then the proper outcome was a finding that the plaintiff had failed to prove this element of her claim on the balance of probabilities.
[201] When looking to the past it was nonetheless appropriate to consider the risk that the plaintiff might have failed the examination in any event and factor that into the analysis of the past hypothetical. By contrast, when looking to the future and the "degree of probability" associated with hypothetical events, including those which have not yet occurred, it was appropriate to consider various issues, including whether the plaintiff might have failed the examination in any event, or might one day yet succeed in passing the FASEA examination.
[202] In this case that kind of latter consideration, the possibility of passing the FASEA exam in the future, was probably better reflected in the 40 per cent allowance by which the trial judge endeavoured to determine the particular features or contingencies associated with the plaintiff's business which might result in her sustaining less loss than Mr Lee's calculation assumed. It is accordingly a little difficult to regard this as something properly reflected in the allowance made for general or ordinary contingencies which resulted in the 15 per cent reduction.
[203] Nonetheless, it may not matter where the contingency is brought to account, provided it is brought to account.
[204] Similarly, another contingency which the trial judge was required to consider was the extent to which the plaintiff was likely to recover from her psychological injury and, in consequence, experience less or no ongoing financial loss. That will be addressed when addressing future loss. Strictly, these are best seen as positive contingencies arising on the evidence which, should they manifest, will have the effect of reducing the plaintiff's financial loss.
[163]
The assessment of loss for the 12 months to trial
[164]
[208] Whilst it was for the plaintiff to prove her case, it was not seriously disputed that she was entitled to an award of significance,[115] because there was some substantial element of loss which the court was required to take into account when assessing damages for this period of her loss.[116]
[209] Having regard to the limited challenge made by the defendant, that the reduction of 40 per cent was inadequate, it is appropriate to turn next to the scope for making a reduction for contingencies in respect of past loss of earning capacity for the twelve months before the trial.
[210] Looked at broadly, in this case the period of just under a decade between injury and trial provided obvious scope for applying a reduction for adverse contingencies, particularly given the disruption caused to the financial services industry in the wake of the Royal Commission. Those contingencies would reflect an allowance for the proposition that, regardless of the plaintiff's injuries, she may have encountered reduced business earnings in any event. For example, it would be appropriate when looking at past loss of earning capacity to conjecture whether there was a risk that, regardless of her psychological injury, the plaintiff might have encountered difficulties in her business or failed the FASEA examination in any event.
[211] That approach, however, is one that more naturally applies to the whole of the period from the date of injury and not merely to the short period of about a year between 1 November 2021 and trial.
[212] In a sense it was, on one view of it, erroneous to have regard to the three matters identified by his Honour - the plaintiff's reasons for failing the FASEA exam anyway, the significant improvement in the plaintiff's psychological injury and the marked improvement in the gross income of the business - as matters warranting a reduction for contingencies when assessing past loss of earning capacity before trial. On one view, if these were actually past events, they were matters which bore on whether the plaintiff had established a causal connection between her compensable injuries and her financial loss. For example, if the plaintiff was no longer impaired or her impairment was no longer productive of financial loss before trial that might tend to suggest that there was no proper basis for an assessment of damages, particularly as to the future.
[165]
The assessment of loss by way of future loss of earning capacity
[166]
[222] The defendant's principal challenge was, understandably, directed to the award of damages for future loss of earning capacity.
[223] The resolution of this aspect to the appeal also turns on whether the 40 per cent reduction made by the trial judge represents a wholly erroneous allowance for future contingencies.
[224] As has been explained, the assessment of future loss was approached by starting with the calculation made by Mr Lee under Scenario 1, and applying the same percentage reduction of 40 per cent for the three reasons given by the trial judge. For present purposes it is not necessary to repeat that the better view of his Honour's findings was that these were reasons why the plaintiff's loss might have been sustained in any event, as well as why the loss which was sustained might in the future reduce over time.
[225] The question whether the 40 per cent reduction represents a wholly erroneous allowance was argued on appeal on the basis that the effect of Dr Larder's evidence was that the plaintiff would likely return to normal function two years after the trial. If that really was the effect of the evidence, then it might well have been open to contend that the 40 per cent reduction should have been much greater. As will be seen, however, that was not the effect of the evidence or of Dr Larder's opinion.
[226] The plaintiff's evidence, accepted by the trial judge, was that in the period leading to trial she still could not work as she did before the battery. She had symptoms and had to abandon her business model based on "full advice" and she was confined to a business model based on "general advice". The plaintiff's evidence was generally supported by the expert opinions given by the psychiatrists and psychologists, although they acknowledged that the plaintiff's condition had improved over time.
[227] It is true that at one point of his cross-examination Dr Larder seemed to accept the "realistic possibility" that within two years of the trial the plaintiff ought conceivably be back to "full occupational function". Nonetheless, as the trial judge pointed out, Dr Larder was re-examined. His Honour found that there was nothing in re‑examination to detract from Dr Larder's evidence about "the significant improvement in Ms Gardiner's condition over time".[117]
[167]
"The new information which I have been provided with, with respect to call centre and so on in these questions, leads me to suggest that it's important to monitor her ability to negotiate work‑related matters over the next two years, with a key focus on her job satisfaction and sense of achievement in this redevelopment process, and that certainly, at least every six months to two years, a review of her overall mental health would be advisable."
[168]
[231] Importantly, Dr Larder said that he had over-rated the plaintiff's level of function. He explained that the plaintiff's post-separation parenting issues, as well as other matters preceding the assault and battery, rendered the plaintiff vulnerable to the development of mental illness. Dr Larder explained that it was necessary to keep reviewing the plaintiff "lest the stressors and life events see her deteriorating".[120]
[232] The effect of this evidence was that whilst Dr Larder was optimistic about the prospect of improvement in the plaintiff's capacity working in a "general advice" model, he did not think that she could return to a "full advice" model and she remained, in any event, at some risk of deterioration in the future. In particular, the plaintiff required ongoing oversight because of the risk of a deterioration in her condition which may be caused by "stressors and life events".
[233] In these circumstances, it is difficult to see any basis in Dr Larder's evidence for a conclusion that the plaintiff was likely to be fully fit to return to normal function, including by operating her business on a "full advice" model, at the end of two years following the trial.
[234] Nonetheless, the possibility of that occurring could not be ruled out. It was a factor to be reflected in the contingencies bearing on the possibilities and probabilities associated with the determination of future events and future loss.
[235] On this state of the evidence, the trial judge was presented with a difficult evaluation regarding the extent to which the plaintiff's loss of earning capacity was likely to continue to be productive of financial loss until anticipated retirement. As was said by the Privy Council in Paul v Rendell:[121]
[169]
"The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured. What matters to the parties, however, to the plaintiff and to the insurer of the defendant alike, is the total sum awarded."
[170]
[236] When one has regard to the 40 per cent reduction made for the contingencies earlier set out in these reasons, as well as the further 15 per cent reduction made for general contingencies,[122] it is difficult to see how the overall reduction of 50 per cent, still less the ultimate award of $343,081, can be said to be affected by error or represent a wholly erroneous estimate of the plaintiff's future loss of earning capacity.[123]
[237] In the circumstances of this particular case, it cannot be said that the defendant has established a proper basis for this Court's intervention.
[238] It follows that these appeal grounds must be dismissed.
[171]
[239] Given the way in which the defendant framed his attack on appeal, the appeal should be dismissed.
[240] The defendant should be ordered to pay the plaintiff's costs.
[3] The respondent's account was set out in a statement provided to police on 10 December 2013, as well as in an addendum statement dated 21 December 2013, which were both tendered without objection during the respondent's re-examination. The trial judge made no findings about the respondent's allegations of past instances of violence by the appellant save where corroborated by the respondent's first child.
[12]P v R[2010] QSC 139, rather than Bulsey v State of Queensland[2015] QCA 187. Whether these awards, which were at large, should have been made by reference to specified authorities was not raised or addressed on appeal, cf Amaca Pty Ltd v Werfel(2020) 138 SASR 295 (FC), [391]-[397], [413]-[415] and [658] where criticism was made of references to earlier awards as setting a form of template.
[184]
[13] Appellant's amended appeal outline, [8]-[9], relying upon Leigh v Bruder Expedition Pty Ltd[2020] QCA 246, [16] (Sofronoff P, with whom Davis and Wilson JJ agreed).
[15]Coulton v Holcombe[1986] HCA 33; (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ): "It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."
[187]
[16]Norbis v Norbis[1986] HCA 17; (1986) 161 CLR 513, 518-519 (Mason and Deane JJ): "According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal."
[188]
[17]Allesch v Maunz[2000] HCA 40; (2000) 203 CLR 172, [23] (Gaudron, McHugh, Gummow and Hayne JJ), that is, whether the order that is the subject of appeal is the result of some legal, factual or discretionary error. See also Sutton v Hunter[2022] QCA 208, [46], McEntee v SJ Berry[2022] SASCA 133, [36].
[189]
[18]Coulton v Holcombe[1986] HCA 33; (1986) 162 CLR 1; University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ): "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
[190]
[19]Fox v Percy(2003) 214 CLR 118, [25] (Gleeson CJ, Gummow and Kirby JJ). See also Abalos v Australian Postal Commission[1990] HCA 47; (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472.
[22]Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ), referred to in Fox v Percy(2003) 214 CLR 118, [26]-[27] (Gleeson CJ, Gummow and Kirby JJ).
[38]Gardiner v Doerr[2022] QSC 188, [311] (Cooper J), referring to the evidence of Dr Mulholland, Dr Larder, Mr Perros (a psychologist called by the appellant) and Dr Fritzon.
[41]Corporations Act 2001 (Cth), ss 921B(3), 921BA(2) and 921C. The respondent was a "relevant person" for the purposes of these provisions, being someone authorised to provide personal advice on behalf of a financial services licensee.
[50] Cf Amaca Pty Ltd v Werfel(2020) 138 SASR 295 (FC), [475]-[476] where, unlike this case, there was a dispute about the expert's assumptions. In Boothy v Morris[2002] SASC 126 (FC) (Mullighan J, with whom Doyle CJ and Williams J agreed), it was accepted that it is necessary for counsel to object or make it clear before the close of the case of the opposite party if the basis for an opinion was in issue.
[220]
[51]Gardiner v Doerr[2022] QSC 188, [333] (Cooper J). See also ARB p 262.
[57]Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, [24]-[25] (Allsop J, with whom Drummond and Mansfield JJ agreed).
[227]
[58]Miller v Jennings[1954] HCA 65; (1954) 92 CLR 190, 196 (Dixon CJ and Kitto J) cf House v The King(1936) 55 CLR 499. Like a valuation, the assessment of damages shares many of the characteristics of a discretionary judgment, Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd[1981] HCA 4; (1981) 146 CLR 336, 381.
[62] Consistently with the move towards assessments undertaken by reference to heads of loss or damage, Sharman v Evans[1977] HCA 8; (1977) 138 CLR 563, 571-572 (Gibbs and Stephen JJ). Cf, those cases where the minor nature of one aspect of a head of damage when compared with the overall award does not warrant its reconsideration on appeal, Elford v FAI General Insurance Co Ltd[1994] 1 Qd R 258, 265; AAI Ltd v Marinkovic[2017] QCA 54; [2017] 2 Qd R 672, [135].
[74]Graham v Baker[1961] HCA 48; (1961) 106 CLR 340, 347 (Dixon CJ, Kitto and Taylor JJ). See also Arthur Robinson (Grafton) Pty Ltd v Carter[1968] HCA 9; (1968) 122 CLR 649, 658 (Barwick CJ); Atiyah, "Loss of Earnings or Earnings Capacity?" Australian Law Journal, 45 (1971) 228.
[83] See, for example, Cochiara v Woolcock[1967] SASR 332, 336 (Bray CJ, Travers and Mitchell JJ) where the possibility of a future amputation sounded in damages.
[86] Luntz and Harder, "Assessment of Damages for Personal Injury and Death", LexisNexis (5th ed) 2021, [6.2.9].
[255]
[87]Wynn v NSW Insurance Ministerial Corporation[1995] HCA 53; (1995) 184 CLR 485, 498-499. In that case the High Court accepted that a 15 per cent reduction, reflecting the practice in New South Wales, was "generally appropriate ... subject to adjustment up or down to take account of the plaintiff's particular circumstances". Whether a reduction was invariably required was later questioned in De Sales v Ingrilli[2002] HCA 52; (2002) 212 CLR 338, 343-344 (McHugh J).
[90]Henville v Walker[2001] HCA 52; (2001) 206 CLR 459, [106] (McHugh J), [152] (Gummow J) and [59]-[60] (Gaudron J); March v E & MH Stramare Pty Ltd[1991] HCA 12; (1991) 171 CLR 506, 522 (Deane J); Kim v Cole[2002] QCA 176, [21]-[22] (McPherson JA). See also, in the case of contract, Coley v Nominal Defendant[2003] QCA 181; [2004] 1 Qd R 239 (McMurdo P, with whom Jerrard JA agreed). Even in a case involving a combination of compensable and non-compensable causes, it is not appropriate to apportion between them, see for example Mainteck Services Pty Ltd v Stein Heurtey SA[2014] NSWCA 184, [182]ff (Leeming JA), a building contracts case.
[94]Amaca Pty Ltd v Karakasch[2004] NSWCA 79, [13]-[14]; State of New South Wales v Moss[2000] NSWCA 133; (2000) 54 NSWLR 536, 553, 559 (Heydon JA); Reardon-Smith v Allianz Australia Insurance Ltd[2007] QCA 211, [39], "Damages founded on hypothetical evaluations defy precise calculation".
[98]Griffiths v Kerkemeyer[1977] HCA 45; (1977) 139 CLR 161, 186. The case is usually cited as authority for the recoverability of damages for gratuitous services.
[101]Freudhofer v Poledano[1972] VicRp 29; [1972] VR 287, 292-293. Hunter v Scott[1963] Qd R 77, 83 is another case involving a working parent who may have had to take time away from work for family reasons regardless of the defendant's wrongdoing. Criticism has been made of the proposition that the family duties of women should invariably be regarded as an adverse contingency, Sharman v Evans[1977] HCA 8; (1977) 138 CLR 563, 598-599 (Murphy J).
[103]Montemaggiori v Wilson[2011] WASCA 177, [30] (Buss and Newnes JJA); Phillips v MCG Group Pty Ltd[2013] QCA 83, [75] (White JA, with whom Fraser JA and Daubney J agreed) where a reduction on past loss for contingencies before trial of 20 per cent was upheld given the uncertainty of continued employment in the mining industry and the plaintiff's pre-existing physical impairment.
[272]
[104] Whilst it has been suggested that the counter-factual looks to the past, and the hypothetical to the future, that approach has not been taken in these reasons, Gerstenberg, 'What would have happened? Counterfactuals, hypotheticals and causal judgements', Phil. Trans, Royal Society, 2022 B 377: 20210339. https://doi.org/10.1098/rstb.2021.0339.
[106]Allianz Australia Insurance Ltd v Kerr[2012] NSWCA 13, [25]-[26] (McColl, Basten and Macfarlan JJA). See also Amaca Pty Ltd v Karakasch[2004] NSWCA 79, [13]-[14] (Cripps AJA); Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd[1981] HCA 4; (1981) 146 CLR 336, 381 (Mason J); Phillips v MCG Group Pty Ltd[2013] QCA 83, [74] (Fraser, White and Daubney JJA); Van Gervan v Fenton(1992) 175 CLR 327, 343 (Deane and Dawson JJ).
[109]Reardon-Smith v Allianz Australia Insurance Ltd[2007] QCA 211, [39] (Keane JA), citing Mallett v McMonagle [1970] QC 166, 176 (Lord Diplock); Todorovic v Walker[1981] HCA 72; (1981) 150 CLR 402, 413 (Gibbs CJ, Mason, Aickin, Wilson and Brennan JJ); Paul v Rendell[1981] UKPC 19; (1981) 55 ALJR 371, 372-373 (Lord Diplock, Lord Russell of Killowen, Lord Keith of Kinkel, Lord Bridge of Harwich and Sir John Megaw); Van Gervan v Fenton(1992) 175 CLR 327, 343 (Deane and Dawson JJ).
[114]Medlin v State Government Insurance Commission[1995] HCA 5; (1995) 182 CLR 1, 5-6 (Deane, Dawson, Toohey and Gaudron JJ), 19-23 (McHugh J). In that case the High Court overturned the Full Court on the question of whether there was a causal connection between the plaintiff's compensable injuries and his decision to retire, finding that it was not unreasonable for the plaintiff to take that step.
[283]
[115] See, for example, Giorginis v Kastrati(1988) 49 SASR 371, 375-376 (von Doussa J, with whom King CJ and Legoe J agreed).
[121]Paul v Rendell[1981] UKPC 19; (1981) 55 ALJR 371, 372-373 (Lord Diplock, Lord Russell of Killowen, Lord Keith of Kinkel, Lord Bridge of Harwich and Sir John Megaw).
[287]
[122] As has been pointed out, the 15 per cent reduction for contingencies included the possibility that the respondent may yet be able to requalify, which is more naturally associated with the reduction of 40 per cent which was made for particular rather than general contingencies.
[288]
[123]Battunga Country Lions Club v Paues[2021] SASCA 72, [72] (Kelly P, Doyle and Bleby JJA), "the appellate court should not lose sight of the fact that the calculation may be no more than a convenient way of expressing the Judge's estimate of an appropriate award; that the Judge's estimate may nevertheless have been informed by, and reflect, a range of considerations that are not explicitly reflected in that calculation...".
[29] During this struggle the plaintiff managed to free her hands and remove the tape from her eyes. She grabbed the man's mask and pulled it off only to find that he was wearing a second balaclava made of lycra material. At some point the container of clear liquid was knocked over. The plaintiff knocked the container underneath the couch. The man left the plaintiff and went into the kitchen.
[30] The plaintiff removed the tape and cloth from her mouth and tried to vomit so as to get the latex out of her mouth and throat. She pushed a piece of cloth and a latex rubber glove under the couch.
[31] As the man returned from the kitchen and sat on the couch the plaintiff soon recognised the movements of her estranged husband. Her recognition was confirmed when the man said that he was coming for the plaintiff's family, that he was going to burn her mother's house down and that he was coming for her sisters. The man said that the plaintiff's family was evil. These statements matched things which the defendant had previously said to the plaintiff.
[32] At that point the plaintiff said to her assailant words to the effect, "The jig is up" and "James, that's you. I know it's you now."[4]
[33] Perhaps remarkably, the man allowed the plaintiff to go to the bathroom. She was bleeding from the vagina. While she was there the man brought her grapes to assist with dislodging the latex from her throat. When the plaintiff came out of the bathroom she saw that the mask was off and her husband had shaved his head.
[34] The defendant told the plaintiff to sit at the dining room table. By this stage it was light outside. The plaintiff said that the defendant then told her:
[54] The trial judge was satisfied that the plaintiff's diagnosed psychological disorder was only explained by her evidence of the assault and battery.[8]
[55] The trial judge found that the plaintiff's identification was supported by the DNA evidence as well as the evidence of the defendant having shaved his head and having no hair on his hand. Referring to the various explanations given by the defendant for why he shaved his head, the trial judge found that none of these "address his decision to shave his body hair".[9]
[56] According to the trial judge, nothing in the evidence explained the coincidence and the timing of the defendant shaving his head and body hair and the plaintiff's description of his appearance during the home invasion. The trial judge also referred to the coincidental failure of the computer near the defendant's residence to record security camera footage in the period between 9.00 pm on 9 December and 6.21 am on 10 December 2013. As the trial judge explained:[10]
[77] In this case the evidence of the parties' children about their father's movements on the night of 10 December 2013, together with the coincidental loss of CCTV footage, and the evidence of police that the defendant's residence was only 20 minutes' drive from the Apartment, addressed the issue of the defendant's opportunity.
[78] Moreover, given the circumstances of the battery alleged in this case, and the cross‑examination of the defendant on the question of his motive,[31] the reason for the defendant's wrongdoing was obvious from the trial judge's findings.
[79] Once the trial judge accepted the plaintiff's evidence about the statements made by the defendant to her in the carpark on 9 December, and at the dining table on 10 December 2013, the defendant's motive was clear. The defendant's statements were made and his conduct occurred in the context of an acrimonious matrimonial proceeding. That the defendant's reasons may appear conflicting, or even by some lights irrational, does not assist him. As McMurdo JA (with whom Fraser JA agreed) said in R v Gaskell, a case of murder:[32]
[96] In March 2020 Dr Fritzon expressed the view that though the plaintiff continued to meet the diagnostic criteria for post-traumatic stress disorder, her level of impairment had improved from extremely severe to moderate. The plaintiff continued to meet the diagnostic criteria for generalised anxiety disorder.
[102] The plaintiff had been active in growing her business through referrals. On average she met one potential new client each day. She also met with various existing clients each day to assess and renew their requirements.
[103] By December 2013 the plaintiff's client register numbered around 700 clients. She intended to continue working until around 67 years.
[112] In October 2021 the plaintiff ceased providing advice as an authorised representative of Certus Life and instead became an authorised representative of Sharpkey Pty Ltd.
[113] In June 2022 the plaintiff became an authorised representative of Sustainable Life Solutions Pty Ltd. This was associated with the plaintiff's change from a "full advice" business model to a "general advice" model. The plaintiff described the latter model as essentially akin to a "call centre operator", which she found demeaning.[40] She was no longer able to advise clients about their insurance needs having regard to their personal circumstances. She was limited to fielding enquiries about products and renewing them.
[114] The change from a full advice to a general advice model received some attention at trial and on appeal.
[115] The plaintiff's evidence was that following the Hayne Royal Commission, financial service advisors encountered significant changes to their commission structure, and they were required to obtain new qualifications. In the case of the plaintiff, she was required to undertake an examination overseen by the Financial Adviser Standards and Ethics Authority (FASEA).
[116] Despite preparing for that examination, in February 2020 the plaintiff failed it.
[117] Although the time allowed for financial advisors to retake and pass that examination was extended, the plaintiff decided that she would not continue to try and meet that requirement. In the absence of that qualification, the plaintiff did not meet the education and training standards required of a person authorised to provide personal advice under an Australian Financial Services Licence and she was only qualified to conduct a business using the "general advice" model.[41]
[118] The plaintiff gave evidence that the change from a "full advice" to a "general advice" model limited her opportunities to grow her client base and increase the commissions she earned. The trial judge observed that this evidence was given without the provision of any detail.[42]
Scenario 1
[127] In the course of his cross-examination, Mr Lee explained that Scenario 1 took into account unrelated causes of reduction in business income, such as client attrition and a reduction in commission levels following the Hayne Royal Commission. He explained that there was a difference of approximately $115,000 each year when one compared the long-term average annual income of the business before the assault and battery ($315,000) against the average annual income following it ($200,000). Mr Lee made his calculations on the basis of an annual reduction of $100,000. It was in this way that Mr Lee endeavoured to take account of the potential for causes unrelated to the assault and battery to contribute to the plaintiff's reduced gross income.
[128] The plaintiff's evidence demonstrated that the effect of the Hayne Royal Commission was to cause a major change in the commission structure of financial services agents and, in addition, she encountered a range of difficulties caused by her psychological injury, such as the inability to meet with new clients, together with her inability to concentrate and, for example, pass the FASEA examination.
[129] It may, with respect, be doubted whether it was appropriate for an expert to undertake the fact-finding usually required of the court when determining the extent to which the plaintiff proved that her loss of earning capacity was productive of financial loss.
[130] That is especially so where, as here, the analysis is a complex one involving a business deriving various kinds of commissions, including trailing commissions, across a number of years. The task confronting the parties when analysing the extent to which a business has or has not sustained loss over a period approaching a decade was no doubt a formidable one.[47] Ordinarily that would require detailed attention to the practice profile and the way in which gross commission income was affected by non‑compensable causes as well as compensable causes over the relevant period. The parties would then, with the benefit of the assumptions established by the evidence, invite the forensic accountant to express, or adjust, an opinion about the calculation of loss.[48]
[131] Moreover no real attempt was made to precisely correlate the evidence given by the plaintiff with the assumptions made by Mr Lee. It may be, as the plaintiff suggested on appeal, that the task was thought by the parties to be too difficult.
[132] As it was, the parties were content to approach the quantification of loss by reference to Mr Lee's report and no issue was taken with his methodology. Indeed, no issue was taken with it on this appeal. As the trial judge recorded:[49]
[140] These three reasons led the trial judge to find that it was appropriate to discount the figure calculated by Mr Lee under Scenario 1 by 40 per cent. For the period 1 November 2021 to trial, this resulted in an award of $37,972.[54]
[157] Whilst it is necessary to distinguish between these kinds of findings, it is important to bear in mind that this debate occurred in the particular context mentioned: there was no challenge made to his Honour's factual findings or methodology, as distinct from whether the percentage of 40 per cent by way of reduction for contingencies was simply inadequate.
[158] That is, the defendant's challenge was confined to the evaluative judgment made by the trial judge in arriving at his allowance of 40 per cent.
[195] As was pointed out in Malec v JC Hutton Pty Ltd by Brennan and Dawson JJ, "[d]amages founded on hypothetical evaluations defy precise calculation".[105] The court is not exercising a discretion or making a calculation but making a normative judgment where reasonable minds may differ concerning the assessment of what is reasonable compensation by way of damages.[106] There may be "no single correct conclusion".[107]
[196] The court's exercise of judgment on these matters usually commences with the impression made by the plaintiff. The decision-making undertaken by the court is heavily dependent on the assessment it makes about the plaintiff and the plaintiff's injuries, and their effect on the plaintiff's earning capacity.[108]
[197] The court is not calculating liquidated damages but assessing what are general damages bound up in the assessment made of the likely effect of the plaintiff's injuries on her or his capacity to engage in remunerative work over a considerable period, together with the likelihood that the plaintiff's impaired or lost earning capacity will result in financial loss.[109]
[205] None of these considerations, however, reflected the attack made by the defendant on this appeal. It will be recalled that this aspect of the award for past economic loss was not really at the forefront of the defendant's challenge.
[206] The defendant accepted, with respect correctly, that the trial judge had on balance made a finding that the plaintiff failed the FASEA examination by reason of her compensable psychological injury. That was demonstrated by a consideration of the entirety of the plaintiff's evidence on the topic,[112] together with the trial judge's acceptance of that evidence, and to some extent as well by his Honour's later finding on contingencies, which allowed for the possibility that the plaintiff may in the future achieve the relevant qualifications.[113]
[207] Similarly, the defendant ultimately made no challenge to the finding that there was a causal connection between the plaintiff's compensable injury and her decision not to continue trying to pass the FASEA examination and, in consequence, that the move from a full advice to a general advice business model was the result of her compensable impairment. That was, again with respect, an appropriate approach to take given the plaintiff's evidence which was accepted by the trial judge and authorities such as Medlin v State Government Insurance Commission.[114]
[213] These considerations did not reflect the defendant's attack made on this appeal.
[214] Having reviewed the evidence and the findings made by the trial judge, that is not what really what his Honour found, either. As the damages assessment made by the trial judge suggests, the better view of the reasons is that his Honour was satisfied that the plaintiff remained impaired by reason of her compensable injury, and that this was productive of financial loss, including in the twelve months up to trial and continuing into the future.
[215] As the defendant's approach on appeal assumed, the 40 per cent reduction was intended to reflect the particular contingencies associated with the plaintiff's business which may have caused loss in any event or which resulted in less loss being sustained, even though various non-compensable reasons for loss had already been factored into the methodology and calculation offered by Mr Lee - about which there was, it will be remembered, no challenge made on this appeal.
[216] In short, the three reasons given by the trial judge do support the 40 per cent reduction made by way of contingencies to Mr Lee's Scenario 1 calculation for the twelve months to trial, provided they are viewed as reasons why loss might have been sustained in any event, as well as why the loss which was sustained might have been reduced to some extent in the twelve months to trial.
[217] Subject to what follows when addressing future loss and the effect of Dr Larder's evidence, on this basis it cannot be said that it was inappropriate to reduce this aspect of the calculation of past loss for reasons such as these, or that the 40 per cent figure represents a wholly inappropriate exercise of judgment on the issue.
[218] However even if the defendant had argued that the three reasons given by his Honour could be relied on to demonstrate that there was no proved causal connection between the plaintiff's injuries and the past and future loss which was claimed, that challenge would have failed. It would have failed because a reading of the evidence and reasons as a whole demonstrates that the trial judge accepted the plaintiff's evidence and the evidence of the medical and accounting experts which demonstrated the existence of an impaired earning capacity caused by the plaintiff's psychological injury and that it continued to be productive of financial loss in the period commencing twelve months before trial, extending into the future.
[219] In the circumstances of this case, it cannot be said that the allowance of $37,972 for economic loss sustained in the twelve months before the trial represented a wholly erroneous or manifestly excessive award.
[220] There is no warrant for substituting the larger reduction in the manner suggested by the defendant on this appeal.
[221] It follows that the challenge made to the loss incurred between 1 November 2021 and trial must be rejected.
[228] Dr Larder was, without objection, apprised in re‑examination about the plaintiff's move from a "full advice" to "general advice" business model and that, over time, her client base had dissipated to around half (350 clients). Dr Larder was told that the plaintiff regarded the general advice model as "being something more in the nature of a call centre operator".
[229] With the benefit of this further material, Dr Larder explained in his evidence on re-examination the potential for the plaintiff to experience an exacerbation of her mental health issues because of her sense of loss in coming to terms with her grief reaction to "the life that was".[118] He emphasised the need for ongoing GP and psychologist support.
[230] Dr Larder was then asked, again without objection, whether he was suggesting that the plaintiff "would be able to go back to the full role that she had before ...", to which Dr Larder replied, "No, I'm not". Dr Larder explained:[119]