Gaundar v Hogan [2014] ACTCA 4

Court of Appeal (ACT)|2014-03-07|Before: Dowsett JJ, Nield AJ, Burns J

I agree with the reasons proposed by Dowsett J and with his Honour's orders save as to costs.
With respect to costs, the appellant has succeeded on one issue only, being failure of the primary Judge to allow in her calculation of damages for deferral of a portion of the damages awarded for future impairment of earning capacity. This error was conceded by the respondent, albeit not until shortly prior to the hearing of the appeal. On each of the other grounds of appeal, the appellant has been unsuccessful.
It is clear from the way in which the appeal was conducted that the appellant would have pursued the appeal even if the respondent had conceded the primary Judge's error in a timely fashion. In my opinion, the appropriate costs order is that proposed by Nield AJ, that the appellant pay four fifths of the respondent's costs of the appeal.

I certify that the preceding three (3) paragraphs numbered [1]-[3] are a true copy of the Reasons for Judgment herein of his Honour Justice Burns.

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

4. In an appeal of this kind it is usually unnecessary that the Court set out and explain the appellate process. However in the present case observations made by counsel for the appellant in his written submissions lead me to do so. Further, the appellant asserts a failure by the primary Judge to provide sufficient reasons for at least part of her Honour's decision. Such a criticism is, in my experience, rarely made in connection with the decisions of superior courts or of the district and county courts. When such an assertion is made, it must be addressed with considerable care. I shall also say something about that matter.

5. It seems to be common ground that the appeal is by way of rehearing. The appellant submits that on such an appeal, "the Court is obliged to conduct 'a real review of the trial' and the judge's reasons and give 'the judgment which in its opinion ought to have been given in the first instance'". The quoted passage comes from the decision of this Court in Australian Capital Territory v Crowley & Ors (2012) ACTCA 52 at [5]. Whilst it may be correct as far as it goes, it does not go as far as the appellant's submissions might imply. There are at least two limitations upon it. The first limitation appears from the decision of the Full Court of the Federal Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [21] - [30]. The case demonstrates that error must be shown before an appellate court is called upon to consider the appropriate judgment to be given. As Allsop J observed at [25], on some occasions the appellate court may not be convinced that it is in as good a position as the primary Judge to assess a particular aspect, and so may be reluctant to find error. Further, a demonstrated error does not necessarily lead to a review of all aspects of the trial, but only to review of any part of the judgment which may be infected by the error.

6. As to the second limitation some aspects of a case may allow for more than one "correct" answer, although the "correct" answer may fall within a range. Again, an appellate court will not intervene to substitute its view for that of the primary Judge, unless error is first shown. See also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [22] - [31]. An award of damages for personal injuries may contain numerous components. Some may be capable of precise calculation whilst others may not be so easily calculated. In some cases, there is a risk that mathematical calculations may be used to make a mere guess appear to have a mathematical basis.

7. In Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 49 ALJR 281 Gibbs J said at 285 (McTiernan, Stephen and Murphy JJ concurring):

It is unnecessary to discuss at length the principles that govern an appellate court in the performance of its task when it is called upon to review an assessment of damages for personal injuries. Whether the assessment was made by a judge or a jury the court of appeal will not interfere simply because it would have awarded a different figure had it tried the case at first instance. Where the assessment was made by a judge, and it has not been shown that he acted on any error of principle or misapprehension of the facts, the appellate court will only intervene if satisfied that the judge has made a wholly erroneous estimate of the damages suffered.

8. In Wilson v Peisley (1975) 50 ALJR 207 at 209 Barwick CJ said:

The setting aside of an award of damages in a trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small, and therefore of itself a demonstration of error though otherwise undisclosed. The less ponderable the elements of the damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of the trial not blemished by error or irregularity.

9. In Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 at 159 Aickin J (Gibbs and Stephen JJ concurring) endorsed the remarks made by Barwick CJ in Wilson v Peisley and cited above. I should say, however, that at 149 Gibbs J seems to have deprecated the use by Barwick CJ of the word "outrageous".

10. Concerning the adequacy of reasons Gibbs J said at 147 - 148 in Gamser:

With respect, I am unable to see how a judge can properly perform his duty in making an assessment of damages, in a case in which the personal injuries are serious and the award will therefore be large, without examining separately each of the main heads of damage and allotting, albeit tentatively and in a preliminary way, a separate sum to each head. Of course the judge must guard against the danger that he will give compensation for the same damage twice, under separate heads. But the assessment by a judge must be a process of methodical consideration, not one of ungoverned intuition. It will often - indeed usually, be convenient for the judge to reveal the details of his reasoning, if not the amounts forming the main components of the global sum, so that if he has fallen into error, that may be revealed and corrected on appeal.

I would again agree with Aickin J in allowing that appeal and would, for myself add only this: that so long as awards of damages for personal injuries are to be assessed at first instance by judges rather than by juries, with the accompanying advantage of the existence of stated reasons, those reasons should condescend to some degree of particularity concerning the process by which the particular award of damages has been arrived at.

I do not, of course, advocate any process whereby items of damages are quantified in isolation and are then simply aggregated; that is no way to go about the task. But to condemn that approach should confer no merit upon another, no less objectionable, whereby the total amount to be awarded is stated without any disclosure of the mental processes by which that sum has been arrived at. An award of damages is not, nor should it ever be, arrived at intuitively. Only if it were would particularity as to its component parts be otiose; and if an award is to be the result of a process of reasoning, often quite complex, that process should be exposed, both for the satisfaction of the parties and for the enlightenment of appellate courts should there be an appeal.

So long as compensation takes the form of a lump sum award, arrived at by an evaluation of evidence and by processes of reasoning, there must necessarily be involved some assessment of each item of detriment and some process of computation in order to arrive at the ultimate sum to be awarded. There will very often be detriments suffered or risks of detriment to which a party has been exposed which are incapable of precise quantification. In such cases estimates must suffice and the notion that some false impression of precise mathematical accuracy may be given can readily be dispelled by a few words of explanation. There is no occasion to abandon altogether the task of explaining the components of the awards.

12. In the years since those decisions were delivered the profession and the courts have developed more objective approaches to the quantification of damages. To the extent that awards may be validly quantified with more, rather than less precision, that course should be encouraged. The development of more objective bases for calculation of damages awards may enable a judge to dispense with at least some of the detailed reasoning which might otherwise have been necessary.

13. I have already pointed out the relative rarity, in my experience at least, of appeals against judges' decisions, based on alleged insufficiency of their reasons. It is hardly surprising that such an assertion should be rarely made. The provision of reasons lies at the heart of the judicial duty and the judicial method. It is also a critical aspect of judicial accountability. However a judge's reasons will be tailored to meet the circumstances of the case, including the evidence and the way in which it has been conducted, in particular, the approaches taken by the parties in their submissions. In some cases, the reasons may be more readily understood by reference to these matters. A Judge's reasons will not necessarily be insufficient merely because they cannot be discerned from one, discrete document. When read in the context of the trial as a whole, apparent gaps in findings and/or reasoning may disappear.

14. Usually, any insufficiency will relate to an aspect or aspects of the reasons and not to the reasons as a whole. The decision in Pettitt v Dunkley [1971] 1 NSWLR 376 is an exception in that regard. An identified insufficiency may not necessarily lead to the setting aside of the whole judgment, or even the relevant part. Error must still be shown. However inadequate reasons will likely lead to a careful consideration by the appellate court of the possibly affected parts of the judgment.

15. The appellant also relies on the decision of this Court in O'Brien v Noble [2012] ACTCA 13. In that case, the Court examined the relevant judgment before concluding that it was insufficient in some respects. In this case we have not had the benefit of such an analysis. The present assertion of insufficiency is quite general, and therefore of little assistance. I propose to examine the assertion in some details.

16. I should say that I gratefully adopt the summary of the evidence which appears in the reasons of Nield AJ. It is appropriately objective. However I am sure that his Honour would agree that this objective description tends to understate the adverse effects which the respondent's injuries have had, and will continue to have upon her life. This is particularly so given her youth at the time at which she suffered injury, her disrupted education and the lack of any substantial work history prior to the injury.

17. The appeal is limited to the quantum of past economic loss, future economic loss and future outofpocket expenses. The appellant effectively submits that the amounts awarded under these headings are excessive, to some extent seeking to justify this submission by pointing to the asserted inadequacy of the primary Judge's reasons. I shall deal with each of the three heads of damage separately.

18. At trial the respondent claimed the following amounts as set out in exhibit P:

• lost wages for 10 weeks from February to May 2006 $4,300

• lost wages for 5 years from July 2007 to July 2012 $104,000

There is an error in exhibit P. It shows the third amount as $83,000 and the total claim for past economic loss as $104,000. The error is obvious. Her Honour seems to have recognized and accommodated it at [89] - [90]. Her Honour allowed the respondent the amounts of $860 and $4300 plus half of the sum of $104,000, totalling $57,160, plus interest in the amount of $14,290.

I should explain the three periods for which loss was claimed and awarded. The injury occurred on 14 February 2005. The respondent was absent from work for two weeks, to which period the amount of $860 is attributable. She continued to work until mid2005 when she resigned. Although counsel for the respondent submitted that her injury may have contributed to her ceasing work at that time, the evidence suggests that she did so because her employer wanted her to work at weekends. At that time, she also suffered a miscarriage. Between June and December 2005, she was looking for work and eventually resumed work in December 2005. Exhibit P contains no claim for lost income during the period from June to December 2005. After resuming work she again fell pregnant and was gaining weight, resulting in pain in her injured ankle. She resigned in February 2006 and has not been employed since. Her second child was born in July 2006. The period from February to May 2006 commences from the date at which she ceased work because of ankle pain and finishes at a date shortly before the birth of her second child, recognizing the possibility that she might not have worked up until her confinement. The period from 7 July 2007 until 7 July 2012 reflects the period from about a year after the birth of her second child until the time of trial. It recognizes the possibility that she may not have gone back to work immediately after the birth of her second child but assumes that she would otherwise have worked fulltime had she not been injured.

19. At trial the appellant appears to have accepted the claim for the two week period after the accident but disputed the claim for the period from February to May 2006 on the basis that the respondent, would in any event have had to give up work before her confinement. This argument was not pursued on appeal. As to the claim for lost wages from July 2007 to July 2012, at trial the appellant made two submissions, namely:

• that had the respondent not been injured, she might have had other children and so not worked for some part or parts of that period; and

• the evidence suggests that she would not, in any event, have gone back to work until her second child went to school at the beginning of 2012.

20. As to the first submission, it may be that some allowance could have been made against the possibility that further pregnancy would have caused her to stop work for some period between 2007 and 2012, even if she had not been injured. However there was a period of about three years between her first and second pregnancies. As to the second submission, the evidence is that she said, in 2009 that she then intended to return to work after her second child started school, probably in 2012. This statement was made in the context of an interview designed to assess her current employment prospects, given her injury. It was her view at that time, given her injury. It says nothing about her intentions, had she not been injured. Her evidence at trial was that had she not been injured, she would have been working full time. The appellant submits that this evidence says nothing about when she would have returned to work after the birth of her second child, had she not been injured. There was evidence that she returned to work about a year after the birth of her first child. The primary Judge calculated past economic loss on the basis that had she not been injured, she would have returned to work at about the same time after the birth of her second child. I see nothing unreasonable in this approach.

21. I should say something about the primary Judge's findings concerning her capacity to work. In this regard, one must keep in mind that there were, and are two distinct components to her incapacity. The first is her ankle injury. That injury has, as far as she is concerned, not fully abated. It seems likely that, whether the cause is organic or otherwise, she has an ongoing incapacity which limits her capacity to work but does not deprive her of total capacity to work. The second component arises out of the regimes of medication which she has undertaken. Those regimes have left her with lasting bowel damage which is disabling, distressing and embarrassing. The distress extends to those around her, including her husband. I need not go into details. She said that incontinence and flatulence, both unpredictable, cause embarrassment and prevent her from applying for employment. She is concerned that if her condition is difficult for her and her husband, others may be less tolerant of it. If this evidence is accepted, then it follows that she is effectively totally incapacitated for work. There was some medical support for her evidence. Dr Knox, a psychiatrist, said that given the bowel dysfunction, she could not easily work with others. There is also the added complication of her depressive condition.

22. Dr Stewart identified two possible remedial steps for her bowel problem. Some relief of the bowel problem might be gained by major surgery, but the general view is that surgery would be unwise in the circumstances. An alternative treatment under trial is a form of nerve stimulation. This is a quite expensive process. Dr Hillman seems to have considered that the respondent could not undergo that treatment because of the need to commute from Canberra to Sydney. However the respondent decided to undertake the treatment but found that her dependence upon medication prevented her from doing so.

23. Dr Hillman recommended that she be weaned off her medication, a process which was likely to take five years. At [27] her Honour suggests that Dr Hillman considered that if the respondent ceased to use medication, her bowel condition may gradually recover. However her Honour considered that it was optimistic to expect full recovery over the five year period. I am a little unsure as to Dr Hillman's recommendation concerning the five year period. I do not read her report as suggesting that the bowel condition would improve as a result of weaning the respondent of her medication. She seems rather to have considered surgery and nerve stimulation but concluded that neither was suitable, the latter because of her view that the respondent would not be able to commute to Sydney. Dr Stewart considered that she had suffered permanent bowel damage. Thus it seems unlikely that the problem would resolve as a result of her being weaned off her medication. As I read the reports, weaning the respondent off medication would remove one bar to her undergoing the nerve stimulation treatment but would not, itself, repair the damage to her bowel. In any event, the primary Judge's view of the evidence is more favourable to the appellant than is mine.

24. I have dealt with this matter in some detail because it seems to be at the heart of her Honour's reasons and this appeal. Her Honour awarded past economic loss from July 2007 until trial on the basis of total incapacity for work, and future economic loss for five years thereafter on the same basis. She then awarded future economic loss for a further period of 30 years on the basis of partial incapacity. Clearly, her Honour accepted that as a result of her bowel condition, the respondent was fully incapacitated at the date of trial and would continue to be incapacitated for at least some of the five year period and perhaps for a longer period.

25. In assessing past economic loss, the primary Judge referred specifically to the following matters:

• that at the date of trial, the respondent was not capable of undertaking fulltime employment;

• her stated intention was to return to work when her second child started at school;

• that she had returned to work 12 months after the birth of her first child; and

• that her husband had been unemployed and in receipt of workers' compensation following an injury.

26. The second, third and fourth matters go to the likelihood of her returning to work, had she not been injured. Her Honour was satisfied that she would have at least returned to parttime work. The allowance of half of the amount claimed must reflect both the possibility that she would have gone back to fulltime work and that she would not have gone back to work at all. The latter situation might have arisen as the result of a further pregnancy. There was also the possibility that she might have gone back to work at some point sooner than a year after the birth of her second child.

27. The primary Judge's reference to the respondent's incapacity to undertake fulltime work should not be understood as indicating any substantial capacity to obtain work notwithstanding her bowel condition referred to at [68] and [74]. Further, at [91] her Honour refers to the respondent's submissions concerning the next five years as involving total incapacity. It follows that her Honour must have considered that she was, at the time of trial, similarly incapacitated. The respondent said that her bowel problem arose shortly after the accident. Of course she was employed from the end of February 2005 until mid2005, and from December 2005 until February 2006. She does not suggest that the bowel problem, at that stage, was interfering with her work. However I do not understand there to have been any challenge to her evidence concerning her present problems.

28. The appellant submits that the trial Judge misunderstood the evidence as to the respondent's husband's inability to work. The evidence shows that he was incapacitated from 2010 to 2012 and was receiving workers' compensation payments. Nonetheless, he said that the family had suffered financial difficulties as a result of his injury. At [88] her Honour said that " ... between 2006 and until recently her husband was unemployed and was in receipt of workers' compensation following a workplace injury". The appellant submits that her Honour erroneously proceeded on the basis that he was unemployed from 2006 until 2012. The evidence went only to the question of whether the respondent would have returned to work earlier, rather than later, after the birth of her second child. Once it is realized that her statement about returning to work when her second child went to school did not relate to her likely preinjury intentions, the significance of the evidence concerning her husband's incapacity decreases, and the significance of her return to work about a year after her first child's birth increases.

29. However I do not accept that her Honour misunderstood the evidence as to the respondent's husband's incapacity. The judgment was delivered on 9 July 2012, less than a week after the trial. The evidence as to the period of his incapacity was clear, coming from both the respondent and him. Counsel for the respondent referred in addresses to a period of incapacity of 18 months. It is more likely that her Honour's reference at [88] to the husband's incapacity was meant to indicate that it started some time between 2006 and "recently", rather than that it commenced in that year. The issue seems not to have loomed large at the trial. It was raised with the respondent in crossexamination, not in evidenceinchief. It cannot have been a major part of her case. Thus her Honour may not have felt the need to be specific about the dates. She seems rather to have taken the matter into account in forming a general assessment of the respondent's likely employment history, had she not been injured. In effect, her Honour simply set the matter off against the 2009 statement that she then intended to return to work when her second child went to school, which statement was made in light of her injury.

30. At [89], her Honour found that had the respondent not been injured, she would probably have returned "at least to parttime work between 2007 and 2012". Apart from the misconceived reliance on the 2009 statement concerning the respondent's intentions, the appellant submits that there is no direct evidence from the respondent as to her intentions concerning work after the birth of her second child. It may be that this matter should have been expressly addressed in the respondent's evidenceinchief. However there was evidence of her work history before and after the accident, from which it might be inferred that she was willing, perhaps anxious to work. There was evidence that she had returned to work about a year after the birth of her first child. There was her statement in evidence that had she not been injured, she "would have been working fulltime to support my children and my family".

31. Had a male plaintiff made that statement in the same context, there can be little doubt that a court would infer that he would have returned to work as soon as he had sufficiently recovered from his injury to enable him to perform work which was available to him. The only significant difference between the notional male plaintiff and the respondent is the perception that a mother might choose to stay home to look after her children or possibly have more children. They are real possibilities, but only possibilities. There is no presumption that a woman will, or should do so. An injured plaintiff is compensated for lost earning capacity. The value of such loss is calculated by reference to what probably would have happened had he or she not been injured. In effect, her Honour started by assuming full earning capacity, reduced it by a year's income to reflect the possibility that she would have remained at home for that period as she had after the first pregnancy, and then reduced the claimed amount by half to reflect the possibility that she might have returned only to parttime work and other contingencies.

32. This reasoning must be seen in light of her Honour's apparent finding that, although the respondent had some residual capacity for work, her bowel condition "prevented" her from applying for work. I have previously explained the significance of this evidence. The notion of parttime work is flexible. It does not necessarily imply receipt of any particular proportion of the relevant fulltime remuneration. As I understand her Honour's reasoning, I see nothing objectionable in it.

33. In any event the appellant conceded that "a modest amount" might be allowed for economic loss between 2010 and 2012, presumably because of her husband's incapacity. He agreed that $20,000 would be a "modest" award. If that is so, and if I am correct in my views concerning the primary Judge's reasoning and findings, then the award of $52,000 for the period from mid2007 to mid2012 is also "modest".

34. I find no error in the award for past economic loss.

35. In considering future economic loss, one must keep in mind her Honour's approach to the respondent's bowel problem and the prospect of its abating or being treated after she has been weaned off her use of medication or recovery as a result of such weaning

36. At trial the respondent claimed an award based on total incapacity for a period of five years after trial and partial incapacity for 30 years thereafter. The appellant suggested a "buffer" of $100,000, submitting that the evidence did not support a prospective total incapacity for five years or partial incapacity for 30 years thereafter. In response to her Honour's reference to the proposed treatment to overcome her bowel condition, counsel for the appellant asserted that the "uncertainties" were such that "this is truly a buffer type case". Counsel further submitted that:

It is not really appropriate to be trying to calculate these damages on a mathematical basis.

37. Counsel pointed out that the respondent's "earning history" was "very small". Nonetheless, he suggested a figure of $100,000 for future economic loss. The primary Judge more or less accepted the respondent's approach, but used lower levels of weekly loss. The appellant submits that the award for the five year period is inconsistent with the finding that she has a residual working capacity. That submission ignores the difficulties in undertaking employment arising out of her bowel condition. In this regard her Honour obviously accepted the respondent's evidence and that of Dr Knox. Having accepted that evidence, her Honour proceeded on the basis that the respondent was unlikely to work during the five year period.

38. The appellant also seems to challenge the calculation of future economic loss on the basis that the respondent would have been employed in office work rather than retail work, and that remuneration for the former employment was greater than that for the latter. However, her Honour dealt with this matter at [96], adopting a level between the two, apparently to take account of the possibility that the respondent would not retrain and that she might have had further children.

39. It must be kept in mind that her Honour considered that total recovery during the five year period was "optimistic". It may be that this possibility was set off against the possibility of partial recovery during that period. It must be kept in mind that the respondent has little training or work experience. Her Honour also anticipated a further period of five years out of the workforce. These factors must be taken in conjunction with her probably permanent ankle problems and her Honour's doubts concerning complete resolution of the bowel problem. The award suggests that the respondent will probably continue to be at a significant disadvantage in the labour market, with many unskilled and semiskilled occupations closed to her, including retailing in which she has some limited experience. That is a reasonable assessment of her position. In the circumstances, I do not accept that the award for the five year period was beyond the range appropriately available on the evidence and the findings.

40. As to the award for the subsequent period of 30 years, the respondent accepts that the award must be reduced to recognize the five year delay before the commencement of that period. It is agreed that the appropriate reduction is $24,175.

41. Otherwise as to this aspect of the appeal, and apart from matters to which I have referred in connection with the five year period, the appellant submits that there is no explanation of the basis of the calculation of the award. He submits that the evidence does not sustain a finding of permanent loss of earning capacity and actual earnings equating to 40% of the respondent's earning capacity.

42. Counsel for the appellant asserted in argument that Dr Le Leu had found her to be fit for fulltime sedentary work. I do not read his report of 1 April 2012 in that way. He certainly considers that any future employment will be in administrative areas and not in retail. He suggests that she may need retraining for some administrative jobs. However he says nothing about her capacity to work fulltime. He considers that for the rest of her life, her continuing restrictions and disabilities are likely to affect her working capacity and employment options.

43. The suggestion that the primary Judge proceeded on the basis that the respondent had permanently lost 40% of her earning capacity appears to be based on her Honour's choice of $500 as the loss for the first five years and $200 thereafter. Given that more than seven years had elapsed since the accident, and that the respondent was still suffering serious consequences of her injury, it is not surprising that her Honour took a "guarded" view of her employment prospects for the future. I use the word "guarded" as it appears in some of the medical witnesses' prognoses. Further, it must be kept in mind that her education had been disrupted prior to the injury, and her working life has been disrupted since the accident. I do not understand her Honour to have calculated a reduced earning capacity of 40%. Her Honour rather tried to quantify the extent to which her earnings may, in fact, be reduced over the subject period, as compared to her likely earnings had she not been injured. That exercise involved the assessment of numerous contingencies, not an intuitive assessment of her percentage disability. To assume that her Honour proceeded on the basis of a 40% loss of earning capacity would invite questions as to how that figure was calculated. Those questions might, in my view, unjustifiably offer a further basis for the appellant's assertion that her Honour's reasons were inadequate in that she did not explain how the percentage incapacity was calculated. In my view, the figure adopted as the amount of weekly loss is based upon an exercise which commenced with the respondent's likely fulltime pay, had she not been injured. For many reasons a person's capacity to work may not be fully exploited. In this case, the respondent's education background and work history, together with her bowel problem raise serious doubts about her future. I see no reason to treat the primary Judge's assessment of future economic loss as being beyond the appropriate range, based upon the evidence and her Honour's findings.

44. Finally, the appellant challenges the primary Judge's award of $40,000 for future outofpocket expenses. At trial this figure was suggested by counsel for the respondent. Counsel for the appellant said at the trial that there was some "crystal ball gazing", and that the figure was "somewhat too high". He suggested about half of that figure, having regard to the need for psychological and psychiatric treatment "in the next 12 months or so and the ongoing management over the next several years of the [respondent's] bowel problems".

45. Counsel for the respondent pointed out that there was the possibility of a "more intrusive solution to the bowel problem" presumably a reference to the nerve stimulation treatment costing about $30,000 plus $3,000 per annum. Dr Griffith had also suggested an intensive treatment programme which might cost about $10,000. These possible outgoings were in addition to those recognized by counsel for the appellant.

46. Once must also make provision for the cost of ongoing medication. Exhibit C deals with out of pocket expenses up to trial. As far as I can see pharmaceutical expenses for the first five months of 2012 suggest an annual outgoing of between $800 and $900. Of course, it does not follow that this sum will continue to be expended for the rest of the respondent's life. Further, there would have to be substantial discounting of any lump sum award for future pharmaceutical expenses over 30 years or more.

47. In oral argument on appeal, counsel for the appellant seemed to accept that an allowance should be made for the five years of treatment for her bowel condition, psychiatric treatment, and treatment from the "pain people". He seemed to say that the primary Judge had inadvertently made allowance for the possibility of surgical intervention, although her Honour seems to have accepted that such intervention was unlikely. However her Honour did not discount the possibility that the respondent might choose to undergo the nerve stimulation treatment at a cost of $30,000 plus $3,000 per annum. At [104] her Honour suggested that there would be "a considerable amount of treatment" in the future if the respondent was to overcome her psychiatric and bowel conditions.

48. Even if one accepted that Dr Hillman considers that the respondent's bowel problems may resolve over five years if she is weaned off her medication, the possibility that this may not occur remains, leading to the possibility that the respondent will choose to undergo the nerve stimulation treatment. When all of these matters are taken into account, I am inclined to the view that an award in the range of $30,000$40,000 was appropriate. The amount awarded may be at the top of the range, but I cannot conclude that error has been demonstrated.

49. In the circumstances, the appeal should be allowed, the figure of $599,586 in order 1 of the orders below deleted and the figure of $575,411 inserted in lieu thereof.

50. As to the costs of the appeal, the appellant has been partially successful. However the respondent offered to consent to the relevant variation by letter dated 13 February 2013, the day before the hearing of the appeal. The notice of appeal was dated 20 July 2012 and was presumably filed on that day or shortly thereafter. The letter of 13 February 2013 made no offer as to the payment of costs. Counsel for the appellant fairly conceded that had the primary Judge's failure to allow for the five year deferral period been the only ground of appeal, the matter could probably have been resolved under the slip rule. In effect counsel conceded that had that matter been so resolved, the appeal concerning other aspects of the award would still have been prosecuted.

51. At the trial, counsel for both parties were obliged to make submissions concerning the various aspects of the likely award. The appellant was aware of the basis of the respondent's claim as set out in exhibit P. At trial his counsel did not raise the question of deferral. In appealing against the award upon the basis of the primary Judge's failure to make allowance for the deferred loss, counsel seeks to raise a matter not raised at trial. In the circumstances I conclude that the error was attributable to both parties' conduct at the trial. Upon receiving the notice of appeal, the respondent or her lawyers ought promptly to have offered to consent to a variation of the order. However such a response would not have led to abandonment of the appeal. In the circumstances, there should be no order as to costs.

I certify that the preceding forty eight (48) paragraphs numbered [4]-[51] are a true copy of the Reasons for Judgment herein of his Honour Justice Dowsett.

IN THE SUPREME COURT OF THE ) No. ACTCA 27 - 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

52. The appellant is Mr Paras Gaundar. He was the defendant in the proceedings under appeal.

53. The respondent is Mrs April Maree Costa (née Hogan). She was the plaintiff in the proceedings under appeal.

54. The respondent suffered a number of injuries, to which I will refer, in a motor vehicle collision on 14 February 2005, to which I will also refer. She was then aged 19 years 6 months. She was aged 26 years 11 months at the time of the hearing of the proceedings under appeal.

55. The motor vehicle collision occurred, as I have said already, on 14 February 2005 on Clive Steele Avenue, Monash, in the ACT. The respondent was the driver of a motor vehicle which was struck "head on" by a motor vehicle being driven by the appellant, when the appellant caused that motor vehicle to cross onto the incorrect side of Clive Steele Avenue and into the path of the respondent's on-coming motor vehicle.

56. By Statement of Claim filed in the Registry of the Supreme Court on 8 June 2007 the respondent sued the appellant to recover damages as compensation for the injuries that she had suffered and for the disabilities that she suffers consequentially upon those injuries.

57. By Statement of Defence filed in the Court's Registry on 20 July 2007 the appellant admitted being liable to compensate the respondent for her injuries and consequential disabilities.

58. On 2 July 2012 the respondent's claim came on for hearing before the primary Judge and continued onto 3 July 2012, when her Honour reserved her judgment.

and she admitted the following exhibits into evidence:

A "bundle" of reports related to examinations and/or for treatment of the respondent comprising:
- Reports 05/04/2005 and 03/03/2012 of Dr G. G. Griffith, surgeon;
- Reports 22/03/2005, 02/09/2005 and 18/10/2005 of National Capital Diagnostic Imaging;
- Reports 12/07/2007, 13/08/2007 and 05/05/2009 of Canberra Imaging;
- Report 23/05/2006 of Dr A. Young, orthopaedic registrar, for Dr P. Aubin, orthopaedic surgeon;
- Report 23/05/2007 of Dr N. Al-Naser, general practitioner;
- Report 22/09/2008 of Dr J. Saboisky, psychiatrist;
- Discharge report 17/10/2007 of John James Memorial Hospital related to the respondent's admission on 16/10/2007;
- General practice management plan 25/01/2008 of Foundation Healthcare Erindale;
- Discharge letter 12/06/2008 of Canberra Hospital related to the respondent's attendance on 12/06/2008;
- Report of EMG study of the respondent's legs on 01/03/2010 at Canberra Hospital;
- Letter 23/07/2008 from Dr A. Meyer, (Foundation Healthcare), referring the respondent to Dr J. Saboisky, psychiatrist, for treatment;
- Reports 30/10/2007, 23/07/2008, 24/11/2009 and 19/04/2010 of Dr P. Aubin, orthopaedic surgeon;
- Report 24/10/2008 of Dr G. Eaton, occupational physician;
- Reports 27/11/2009 and 25/03/2012 of Dr R. Brooder, neurologist;
- Reports 08/01/2010 and 23/05/2011 of Dr C. Hoy, radiologist;
- Report 11/12/2009 of Ms S. Pelengaris, psychologist;
- Reports 25/02/2010 and 01/04/2012 of Dr L. A. Le Leu, occupational physician;
- Reports 03/02/2010 and 09/03/2012 of Dr W. Knox, psychiatrist;
- Reports 08/02/2010 and 21/03/2011 of Dr G. Kaye, gastroenterologist;
- Report 16/03/2011 and 15/06/2011 of Dr A. Cairns, orthopaedic surgeon;
- Report 24/08/2011 of Dr P. Stewart, colorectal surgeon;
- Report undated of D P. Lucas, radiologist;
- Letter 19/04/2012 from Dr C. Pattison, psychiatrist, referring the respondent to the Canberra Sleep Clinic;
A "bundle" of photographs showing the respondent's motor vehicle after the collision and the respondent's right lower leg/ankle;
A schedule listing the respondent's out-of-pocket expenses;
The respondent's Income Tax Notices of Assessment for the Income Years 2002, 2003, 2004, 2005 and 2006 and Returns for the years 2005 and 2006;
The clinical notes of Ms S. Pelengaris, psychologist, related to her treatment of the respondent;
A "bundle" of hospital and doctor reports comprising:
- Clinical notes of Canberra Hospital related to the respondent's attendance on 14/02/2005;
- Report 25/02/2005 of Dr N. Roy, locum for Dr A. Pitcher;
- Reports 22/03/2005 and 02/09/2005 of National Capital Diagnostic Imaging;
- Examination notes of Dr N. Al-Naser of 29/09/2006.
Canberra Hospital clinical notes related to the respondent's attendance on 12/06/2008;
Report 13/07/2007 of Dr J. Bramley, radiologist, of an MRI scan taken on 12/07/2007;
Report 13/08/2007 of Dr J. Cormick, physician, of an ultrasound scan and an injection of celestone and an anaesthetic into the respondent's right ankle on 13/08/2007;
Reports 06/08/2007, 08/02/2008, 23/11/2009, 24/11/2009 and 19/04/2010 of Dr P. Aubin, orthopaedic surgeon, of examinations of the respondent;
Report 23/05/2006 of Dr A. Young, orthopaedic registrar, Canberra Hospital, for Dr P. Aubin, of an examination of the respondent on 23/05/2006;
Report 28/02/2008 from Dr B. Klar, orthopaedic surgeon, to Dr P. Aubin of an examination of the respondent on 28/02/2008;
Letter 28/10/2009 from Dr S. Sharmin, general practitioner, referring the respondent to Ms S. Pelengaris, for psychotherapy;
Reports 17/06/2010, 09/12/2010, 10/02/2011 and 28/04/2011 from Dr C. Pattison, psychiatrist, to Dr S. Sharmin of treatment of the respondent;
An outline of the respondent's counsel's submissions and assessment of damages.

A "bundle" of reports comprising:
- Reports 24/03/2009, 27/04/2009 and 17/05/2011 of Dr K. Slater, orthopaedic surgeon;
- Report 14/04/2009 of Ms I. Farag, physiotherapist, and Mr O. J. Burchett, psychologist, of Vocational Capacity Centre;
- Reports 06/05/2010, 19/05/2010 and 22/07/2010 of Dr R. Mellick, neurologist.
Report 19/11/2010 of Dr L. Hillman, gastroenterologist.

60. On 9 July 2012 the primary Judge gave her judgement on the respondent's claim. Her Honour found a verdict for the respondent for $599,586.00, calculated as follows:

61. I note that the appellant submitted, and that the respondent conceded, that her Honour made an error in the calculation of the respondent's "future income loss", in that the calculation does not take into account the fact the some of the damages were delayed for 5 years. I will refer to this error later.

62. By Notice of Appeal filed in the Registry of the Court of Appeal on 26 July 2012 the appellant appealed from the judgment of the primary Judge in relation to the assessment of damages for:

(i) In assessing damages for past loss of earning capacity, her Honour erred in allowing the respondent one half of her claimed loss between July 2007 and July 2012 in circumstances where:

a) The Court accepted (at [88]) only that the respondent was not capable of full-time employment because of her accident related injuries;

b) There was no medical evidence that the respondent was totally incapacitated for work;

c) The respondent had expressed the intention not to work until the youngest child started school in 2012; and

d) Her Honour failed to provide sufficient reasons for the award having regard to her findings and the circumstances of the case.

(ii) In awarding damages for future loss of earning capacity, her Honour erred in allowing $297,710 in circumstances where:

Her Honour allowed a period of five years on the basis of total incapacity for work notwithstanding:
1. Her Honour's implicit acceptance that the respondent was capable of part-time work;
2. The lack of medical evidence to support a finding of total incapacity for work; and,
3. Her Honour's acceptance (at [94]) that there were prospects of recovery within the next five years.
The calculation of $200 per week for 30 years (at [97]) made no allowance for the deferral of that loss for five years.

There was no medical evidence to warrant a finding of a permanent 40% loss if the respondent's earning capacity for the future.

Her Honour failed to provide sufficient reasons for the award having regard to her findings and the circumstances of the case.

(iii) In awarding damages for future out of pocket expenses, her Honour erred in allowing $40,000 in failing to provide sufficient reasons for that award.

(ii) Judgment in favour of the respondent in the sum of $599,586 and the consequential costs orders be set aside and in their place judgment for the respondent be entered in such an amount to be assessed by the Court of Appeal together with such orders as to costs as the Court of Appeal considers appropriate.

65. On 14 February 2013, the appellant's appeal came on for hearing before us. Mr R L Crowe, SC, appeared for the appellant and Mr R McIlwaine, QC, with Mr A Muller, of counsel, appeared for the respondent. After hearing submissions from Mr Crowe and Mr McIlwaine, we reserved our judgment.

66. The appellant submitted that in relation to the awards of damages for the respondent in respect of:

The primary Judge failed to provide sufficient reasons for the award having regard to her Honour's findings of fact and the circumstances of the case.

67. The respondent, as I understand Mr McIlwaine, accepted that the primary Judge did not state adequately her Honour's findings of fact upon which she based her award of damages.

68. A trial judge's obligation to state the findings of fact upon which a decision is based is well known and need not be restated (see Pettitt v Dunkley (1971) 1 NSWLR 376; and see the cases referred to in O'Brien v Noble [2012] ACTCA 13).).

69. As both the appellant and the respondent proceeded upon the basis that the primary Judge did not state sufficient reasons for her Honour's findings upon which she based her award, I will proceed upon that basis, without deciding whether or not her Honour's reasons are insufficient.

70. The appellant initially submitted that, if the appeal is allowed, this Court should "reassess the [respondent's] damages to avoid the need for a rehearing" if the evidence before the primary Judge allows us to do so.

71. However, before us, the appellant submitted that the evidence before the primary Judge does not allow us to reassess the respondent's damages and that, therefore, there should be a rehearing on the issues of past and future impairment of earning capacity and future out-of pocket expenses.

72. The respondent, as I understand Mr McIlwaine, submitted that the evidence before the primary Judge justified the award of damages that was made.

73. Accordingly, I intend to review the evidence that was before the primary Judge.

74. As a result of the motor vehicle collision, the respondent suffered:

1. a "whiplash"-type strain of her neck, causing muscle spasm;

2. an impact injury to her right shoulder, chest and left thigh caused by the tightening of the vehicle's seatbelt that she was wearing;

3. an impact injury to her right knee caused by her knee striking the vehicle's steering column; and

4. an impact injury to her right ankle caused by her ankle striking or being forced against the vehicle's pedals or the wall of the footwell.

75. By reason of her injuries, the respondent experienced:

1. pain in and restricted movements of her neck, particularly on the left side of her neck;

9. constipation, caused by left colonic dysfunction.

76. The respondent's injury-caused symptoms were treated with:

1. medications for relief of her right ankle pain;

2. injections into her right ankle for pain relief and to increase ankle movement;

3. surgery to her right ankle to repair a torn peroneal retinaculum tendon;

4. physiotherapy to her right ankle, both before and after surgery;

5. medications for her depression and disturbed sleep;

6. psychological counselling for her depression; and

77. Over time, the injuries to the respondent's neck, right shoulder, chest, left thigh and left knee resolved without any ongoing disabilities, but the injury to her right ankle, her colonic dysfunction and her depression continued.

CHRONOLOGY OF THE RESPONDENT'S MEDICAL TREATMENT ANDEXAMINATIONS

78. I have read the medical reports and, from them, I have compiled a chronology of the respondent's medical treatment and examinations from the incident on 14 February 2005 until the last examination on 19 April 2012. The chronology is this:

The respondent was injured as a result of a motor vehicle collision.

The respondent attended the Emergency Department of Canberra Hospital (Exhibit F).

The respondent consulted Dr A. J. Pitcher, general practitioner (Exhibit F).

X-Ray examination of the respondent's cervical spine taken by Dr S. W. Chen, neurologist (Exhibit A(ii) and Exhibit F).

The respondent was examined by Dr G. Griffith, surgeon (Exhibit A(i)).

Bone scan of the respondent's right ankle taken by Dr I. Stewart, radiologist (Exhibit A(ii) and Exhibit F).

MRI scan of the respondent's right ankle taken by Dr M. Thomas, radiologist (Exhibit A(ii)).

The respondent consulted Dr P. Aubin, orthopaedic surgeon, on reference from Dr Hope (Exhibit A (iv), Exhibit A(xii) and Exhibit L).

The respondent consulted Dr N. Al-Naser, general practitioner (Exhibit A(v)).

The respondent consulted, Dr Aubin (Exhibit A(xii) - the respondent was referred for further physiotherapy.

The respondent consulted Dr Aubin (Exhibit A(xii)) - the respondent was referred for an MRI scan of her right ankle.

MRI scan of the respondent's right ankle taken by Dr J. Bramley, radiologist (Exhibit A(iii)).

The respondent consulted Dr Aubin - the respondent was referred to Dr W Cormick, physician, for an injection into her right ankle (Exhibit K)

Injection of celestone and anaesthetic into the respondent's right ankle by Dr Cormick, physician (Exhibit A(iii)).

The respondent consulted Dr Aubin - the respondent was advised to undergo surgery to right ankle.

The respondent was admitted into John James Memorial Hospital (Exhibit A(vii)) - surgical repair of a tear to the respondent's right peroneal tendon by Dr Aubin (Exhibit A(xii)).

The respondent was examined by Dr Aubin post surgery (Exhibit A(xii)).

The respondent was examined by Dr Aubin (Exhibit A(xii)).

General practice management plan devised by Foundation Healthcare Erindale (Exhibit A(viii)).

The respondent was examined by Dr Aubin (Exhibit A(xii)) - the respondent was referred to Dr Klar for a second orthopaedic opinion (Exhibit K).

Examination of the respondent by Dr Klar, orthopaedic surgeon (Exhibit M).

Ultrasound of and injection into the respondent's right ankle by Dr Cormick (Exhibit A(iv)).

The respondent consulted Dr L. Le Leu (Canberra Injury Management Centre) (Exhibit A(xiii)).

The respondent consulted Dr G Eaton (Canberra Injury Management Centre) (exhibit A(xiii)).

The respondent consulted Dr Eaton (Exhibit A(xiii)).

The respondent attended the Emergency Department of Canberra Hospital with constipation (Exhibit A(ix) and Exhibit G).

The respondent consulted Dr Eaton (Exhibit A(xiii)) - the respondent was referred to Dr M. Sullivan for a second opinion.

The respondent consulted Dr Meyer - the respondent was referred to Dr J. Saboisky, psychiatrist, for psychiatric assessment.

The respondent consulted Dr Eaton (Exhibit A(xii)).

The respondent consulted Dr J. Saboisky, psychiatrist (Exhibit A(vi)).

The respondent was examined by Dr Brooder (Exhibit A(iv)).

The respondent was assessed by Mr O. J. Burchett, vocational psychologist, and Ms I. Farag, psychotherapist (Vocational Capacity Centre) (Exhibit 1(ii)).

The respondent was examined by Dr K. Slater, orthopaedic surgeon (Exhibit 1(i)).

The respondent consulted Dr G. Kaye gastroenterologist (Exhibit A(xix)).

Transit study of the respondent's colon performed by Dr B. Flynn, physician (Exhibit A(iii)).

The respondent underwent colonoscopy (Exhibit A(xix)).

The respondent consulted Dr P. Stewart, colorectal surgeon (Exhibit A(xxi)).

The respondent consulted Dr S. Sharmin (Foundation Healthcare Erindale) - the respondent was referred to Ms S. Pelengaris, psychologist (Exhibit N).

The respondent consulted Ms Pelengaris, psychologist (Exhibit A(xvi).

The respondent consulted Ms Pelengaris (Exhibit A(xvi)).

The respondent was examined by Dr Aubin (Exhibit A(xii)) - the respondent was referred to Neurology Department at Canberra Hospital for an EMG study. (Exhibit K)

The respondent consulted Ms Pelengaris (Exhibit A(xvi)).

X-Ray of the respondent's right ankle taken by Dr C. Hoy (Exhibit A(xv)).

The respondent was examined by Dr L. Le Leu, occupational physician (Exhibit A(xvii)).

The respondent was examined by Dr Knox, psychiatrist, (Exhibit A(xviii)).

EMG study of the respondent's lower legs and feet (Exhibit A(x)).

The respondent was examined by Dr Aubin after EMG study (Exhibit A(xii) and Exhibit K).

The respondent was examined by Dr R. Mellick, neurologist (Exhibit 1(iii)).

The respondent consulted Dr C Pattison, psychiatrist (Exhibit O).

The respondent was examined by Dr L Hillman, gastro logist (Exhibit 2).

The respondent was examined by Dr A. Cairns, orthopaedic surgeon (Exhibit A(xx)).

The respondent consulted Dr G. Kaye (Exhibit A(xix)).

The respondent was re-examined by Dr K. Slater (Exhibit A(i)).

Ultrasound of the respondent's right foot taken by Dr C. Hoy (Exhibit A(xv)).

MRI scan of the respondent's right ankle taken by Dr P. Lucas, radiologist (Exhibit A(xxii)).

The respondent was re-examined by Dr Griffith (Exhibit A(i)).

The respondent was re-examined by Dr Brooder (Exhibit A(xiv)).

The respondent was re-examined by Dr Knox (Exhibit A(xviii)).

The respondent was re-examined by Dr Le Leu (Exhibit A(xvii)).

The respondent consulted Dr Pattison - the respondent was referred to the Canberra Sleep Clinic for an opinion regarding management of the respondent's difficulties with sleep.

79. As to the respondent's right ankle disability, the diagnoses are these:

1. chronic complex regional pain syndrome (Dr Aubin 23/08/2008 AB 200; 19/04/2010 AB 202);

2. complex regional pain syndrome (Dr Klar 28/02/2008 AB 532);

3. chronic pain/regional pain disorder with peroneal nerve neuritis (Dr Eaton 24/10/2008 AB 207);

4. post traumatic synovitis with a small anterolateral ganglion (Dr Slater 24/03/2009 A.B. 295) and pain dysfunction syndrome (Dr Slater 24/03/2009 AB 295; 17/05/2011 AB 318);

5. tenosynovitis and multi-loculated ganglion with calcification in the superior peroneal recticaculum (Dr Brooder 27/11/2009 AB 214; 25/03/2010 AB 225);

6. damage to the peroneal tendons and the peroneal reticaculum with chronic pain syndrome (Dr Le Leu 25/02/2010 AB 247; 01/04/2012 AB 257);

7. chronic pain syndrome without identifiable organic causes; not chronic regional pain syndrome (Dr Mellick 06/05/2010 AB 310 and 311);

8. chronic (not complex) regional pain dysfunction syndrome (Dr Cairns 16/03/2011 AB 281; 15/06/2011 AB 285); and

9. chronic regional pain syndrome (Dr Griffith 27/02/2012 AB 172 and 178).

80. I do not doubt that, as a consequence of the impact injury to her right ankle, the respondent suffers the disability in her right ankle of which she complains and I think that it does not matter much whether the cause of the disability is organic, that is, in the ankle (synovitis with ganglion, or tenosynovitis with ganglion, or damage to the peroneal tendons and the peroneal reticaculum), or inorganic, that is, in the mind (complex regional pain syndrome, or chronic regional pain syndrome, or pain dysfunction syndrome) or partly organic and partly inorganic.

81. As to the respondent's constipation, the cause with has been diagnosed to be slow transit constipation (Dr Kaye 08/02/2010 AB 270; 21/03/2011 AB 272) and slow colonic transit due to left colon dysfunction (Dr Stewart 24/08/2011 AB 287), due to the respondent's use of analgesics in significant quantities over a long period of time.

82. I accept that, as a consequence of her use of pain-killing medications, the respondent suffers constipation and other bowel problems.

83. As to her emotional state, the respondent was initially diagnosed as suffering from post-traumatic stress disorder (Dr Saboisky, 22/09/2008 AB 190) and later diagnosed as suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood (Dr Knox 03/02/2010 AB 263; 09/09/2012 AB 267).

84. I accept that, as a consequence of her emotional reaction to the collision, the injuries which she suffered and the disabilities from which she suffers, the respondent has a psychiatric disorder.

85. As to the respondent's right ankle disability, the prognoses are these:

At a glance

Court

Decision date

Before

Source

Judgment (286 paragraphs)

Parties

Cases Cited (6)