Huseyin v Qantas Airways Ltd & Anor - [2010] NSWSC 372 - NSWSC 2010 case summary — Zoe

NSWNSWSC

Huseyin v Qantas Airways Ltd & Anor

[2010] NSWSC 372

Supreme Court of NSW|2010-04-30|Before: Fullerton J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2010-04-30

Before

Fullerton J

Catchwords

TORTS - negligence - liability admitted by defendants - personal injury - plaintiff struck on head by metal roller shutter door - fibromyalgia - causation - damages

Source

Original judgment source is linked above.

Catchwords

TORTS - negligence - liability admitted by defendants - personal injury - plaintiff struck on head by metal roller shutter door - fibromyalgia - causation - damages

Judgment (42 paragraphs)

[1]

The application of s 13 of the Civil Liability Act to assessing damages for future economic loss 226 In assessing damages for future economic loss s 13 of the Civil Liability Act obliges the plaintiff to satisfy me that the assumptions about his future earning capacity accord with his most likely future circumstances were he not injured, and to adjust the award by reference to the percentage possibility that the events might have occurred but for the injury. The extent to which damages are adjusted, in accordance with the requirement in s 13(3), is a statutory implementation of the established practice of reducing an award of damages for future loss for vicissitudes. 227 The plaintiff referred me to Amoud v Al Batat [2009] NSWCA 333 where the Court of Appeal reviewed the collected authorities on the interpretation of s 126(1) of the Motor Accidents Compensation Act 1999, which is in identical terms to s 13 of the Civil Liability Act. The Court noted that the section is not a code but assumes the operation of general law principles and went on to note: "[23] ...Whether it merely encapsulates, rather than qualifying, the general law, and if the latter to what extent, is less clear. Subsection (1) is formulated as a prohibition on an award of damages for future economic loss, unless its terms are satisfied. The section imposes a burden of proof on the claimant to satisfy the court as to the matters identified in the provision. Those matters are twofold, namely: (a) the claimant's most likely future circumstances but for the injury, and (b) the assumptions about future earning capacity (and other events) which will form the basis of calculation. [24] It appears that sub-s (1) deals only with the baseline earning capacity which might have been achieved but for the injury. Of course, an assessment of post-injury future earning capacity will also be required, but if sub-s (1) were addressing the assumptions necessary for that part of the exercise it would be unlikely to require them to "accord with" the most likely future circumstances but for the injury. The operation of this provision will vary from case to case and will depend in part on the level of particularity or generality at which the exercise is undertaken. Because there is no challenge in the present case to the findings by the trial judge in respect of the most likely future circumstances, or the assessment of future earning capacity, but for the injury, the operation of this provision need not be addressed further. [25] Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that "the events concerned might have occurred but for the injury". There is clearly a step between the exercise addressed in sub-s (1) and that required by sub-s (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with sub-s (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by sub-s (2). [26] Subsection (3) is designed to ensure transparency in respect of the two steps in the process identified in sub-ss (1) and (2). In the course of the missing steps, namely the assessment of the extent of the disability caused by the accident, further findings will be made as to hypothetical future circumstances. Whether or not those findings must be identified and stated in the Court's reasons, pursuant to sub-s (3), is largely immaterial: they should in any event be stated in accordance with general law principles. [27] One issue which has given rise to debate in the case-law is whether the court, in making an assessment of future economic loss, is entitled to take into account the possibility of departure from the baseline calculation derived from the claimant's most likely future circumstances. For example, the most likely future circumstances might be that a claimant would remain in his or her pre-accident employment but would achieve two levels of promotion over a working life. In accordance with general law principles, in assessing the loss caused by the accident, the court would be entitled to take into account the possibility that a further promotion might have been achieved (with resultant higher earnings) and the possibility that no promotion would have been achieved. The approach under the general law is commonly identified by reference to the principles stated in Norris v Blake (No 2) (1997) 41 NSWLR 49; a different (and more typical) factual example, which arose under the statutory regime, may be seen in Nominal Defendant v Lane . Although s 126(1) requires that the assumptions underlying the baseline calculation should "accord with" the claimant's most likely future circumstances but for the injury, it does not expressly preclude taking into account possible variations from those circumstances. Further, the form of the section is inconsistent with any clear implication excluding other considerations. The facts and arguments in this appeal do not require the resolution of these issues."

[2]

228 While the plaintiff accepts that no-one's future employment is guaranteed, I am also invited to view the industry in which the plaintiff has a proven work history as a growth industry, with innovation and expansion its hallmarks, and that the plaintiff's aptitude, drive and initiative were likely to have assured him ongoing opportunities for promotion and advancement with a flow on effect to his entitlements to superannuation benefits. 229 In so far as there might be an allowance made for the plaintiff's residual earning capacity (ie his capacity for work as assessed by Dr Dryson as distinct from the restoration of his earning capacity to some measure approximating his pre-injury levels) the plaintiff submitted that it should be a modest allowance only given that the range of potential employment is very narrow largely because he cannot drive or use public transport such that his employment will need to be home-based. 230 The defendant invited me to assess the plaintiff's baseline earning capacity as precarious both because of the volatile nature of the workplace environment in which the plaintiff worked pre-injury and because the level of his income was largely dependent on commission earnings, a notoriously uncertain source of income being linked to such variables as product sales, a shifting customer base and shifts in macro-economic environment. For these reasons I was invited by the defendant to calculate damages for the plaintiff's future economic loss on the basis of extended periods of reduced income, through not earning commission, and the likelihood of the plaintiff being unemployed from time to time. 231 Taking those competing considerations into account, and taking into account the plaintiff's guarded but not wholly pessimistic prognosis, I propose to assess the plaintiff's future economic loss on the basis of average nett weekly earnings of $1944.47 (referable to the multiplier of 555.0) equating to a permanent incapacity for work for 15 years, this being my best estimate of the duration of the plaintiff's permanent incapacity before he is able to resume paid employment at his pre-injury levels. I have also applied an additional discount of 15 per cent for vicissitudes. The loss of superannuation entitlements and the need for future domestic assistance are calculated on the same basis. I have approached the assessment of future economic loss in this way mindful of the views of Heydon JA in State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536. His Honour emphasised that an assessment of damages for loss of the capacity to earn income in the future in a manner productive of financial loss is by its nature an imprecise enquiry, being an exercise in the estimation of possibilities not proof of probabilities.

[3]

232 At [87] of Moss Heydon JA said: "…The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility…" 233 In the same judgment his Honour noted at [71] the views of the majority (Deane, Gaudron and McHugh JJ) in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643: "… when the law takes 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 in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender materials"…" 234 In assessing the cost of the plaintiff's future attendant care needs I again rely on the comprehensive assessment undertaken by Ms Bolger. In Section 15 of her report she qualifies the extent of his care needs in two ways. First she notes that the hours per week allocated to personal hygiene, domestic duties including shopping and transfers should not be allowed in full if the costs of other services, equipment and housing modifications are provided for. Second, that as intervention in the form of occupational therapy and other rehabilitative services are designed to improve and maintain improvement in his physical condition and associated functioning, then the need for ongoing attendant care should be reduced. I also take into account that as the plaintiff ages his care needs will be greater and increase more rapidly than an aging person in good health. Since I propose to award damages for professional services, and for equipment and significant modifications to the home environment, I propose to reduce Ms Bolger's assessment of the plaintiff's weekly attendant care needs to 12 hours per week at the week day commercial rate of $38 per hour applying a multiplier of 15 years. 235 I propose to allow the full cost of occupational therapy and associated travel costs as set out in Ms Bolger's report save for the therapy associated with use of the scooter since provision is to be made for a wheelchair. I do not propose to allow the counselling sessions for the plaintiff and his wife as I am not persuaded that there is a current or continuing need for such intervention. In addition I have not allowed all of the equipment and home modification costs. For example, I propose to allow the full cost of a bathroom modification, as per Ms Bolger's report, as distinct from the cost of equipment and installation of the same given that I am allowing for his current incapacity and the probabilities of some improvement in his condition in the short term. I consider some adjustment is required for what is claimed as the cost of replacement of the wheelchair on the same basis. Since the wheelchair is not used on a permanent basis, but rather to facilitate the plaintiff's participation in family and social or sporting events, a one off cost is, in my view, a sufficient allowance. I am satisfied that modifications to the family vehicle are justified and allowance will be made for that also on a one off basis. 236 The orders I make are as follows: 1. Judgment in favour of the plaintiff in the amount of $ 2,268,137.86 as reflected in the attached schedules. 2. The second defendant to pay the plaintiff's costs as assessed or agreed. Assessment of damages

Parties

Applicant/Plaintiff:

Huseyin

Respondent/Defendant:

Qantas Airways Ltd & Anor

Cases Cited (18)

CITATION : Huseyin v Qantas Airways Ltd & Anor [2010] NSWSC 372 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Amoud v Al Batat [2009] NSWCA 333 Australian Iron and Steel Ltd v Connell (1959) 102 CLR 522 EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 Fox v Percy [2003] HCA 22; 214 CLR 118 M and EM Hull Pty Ltd v Thompson [2001] NSWCA 359 CASES CITED : Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Penrith City Council v Parks [2004] NSWCA 201 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 Zreika v State of New South Wales [2009] NSWCA 99

29 Mr Joseph SC submitted that when the evidence of Dr Bertouch and Dr Dryson is considered in light of all the evidence bearing upon the plaintiff's presentation over the eight months after the incident and before he was diagnosed with fibromyalgia in February 2007, the doubts expressed by the defendant's experts about the reliability of the diagnosis and its causal connection to the blow to his head should be resolved in the plaintiff's favour. It was further submitted that the defendant's experts offer opinions of little weight on the issue of causation in any event, and their various reports raise more issues than they resolve. In the result, so it was submitted, their evidence does not undermine the plaintiff's case on either causation or prognosis. It was for this reason (so I am informed) that Mr Joseph made the considered decision not to require any of the defendant's experts to attend for cross-examination, despite being afforded the opportunity by me to adjourn the proceedings to allow that to occur. 30 Mr Williams QC submitted that because none of the defendant's experts were cross-examined their reports should be accepted without qualification in accordance with what the Court of Appeal has determined in M and EM Hull Pty Ltd v Thompson [2001] NSWCA 359 to be the appropriate approach in such circumstances per Rolfe JA (Sheller AJA and Davies AJA agreeing): "[20] Because of the way in which the parties, and particularly the appellant, chose to conduct the case, his Honour had before him only the reports of four expert engineers, none of whom was required for cross-examination. This Court has, on a number of occasions, remarked on the difficulties a Court confronts when asked to decide matters involving various types of expertise without the benefit of at least the principal expert witnesses being cross-examined. [21] Prima facie if there is no cross-examination of an expert, (and indeed most witnesses), there is no basis for a Judge not to accept the unchallenged evidence. I say "prima facie" because there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence."

A principled approach to resolving the question of causation in this case 68 In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Spigelman CJ observed that causation, as with any other fact in dispute, is open to be established by a process of reasoning by inference from the united force of primary facts, including expert opinion, even when the expert evidence does not rise above the causal connection contended for being expressed in terms of possibilities. In his Honour's view the authoritative approach in those circumstances is as stated by Glass JA in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197: "…The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360N. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence." 69 In the same case the Chief Justice accepted that it is sometimes difficult to distinguish between permissible inference at one end of a continuum and conjecture on the other since there is no bright line that divides the reasoning process involved. Nevertheless, the distinction between the two exists. In reasoning by inference, as the Chief Justice observed, evidence of possibility (in this case that fibromyalgia might be caused by trauma) should be regarded as circumstantial evidence which, alone or in combination with other evidence, may establish causation for legal purposes. In this case the issue is whether the evidence persuades me by a process of reasoning by inference that the defendant's admitted negligence probably caused or materially contributed to the disabling chronic pain condition from which he suffers, however it is described. 70 As the defendant correctly submitted, this case calls for the application of the principles of fact finding enunciated in Fox v Percy [2003] HCA 22; 214 CLR 118 requiring me to reason to a conclusion on the question of causation by reference to contemporary materials and the objectively established facts. The defendant also submitted, and I accept, that the first eight months after the incident at Sydney airport on 10 July 2006 call for critical attention given that fibromyalgia was not diagnosed until February 2007, and that there was some variation in the plaintiff's presentation prior to that date at a time when he was subject to other environmental stressors which may have independently contributed to the onset of a chronic pain syndrome. 71 The evidence bearing upon the plaintiff's condition and presentation in that eight month time frame emerged from a number of sources. The plaintiff gave evidence as did members of his family. The plaintiff also relied upon extracts from his journal which he maintained for a period of weeks in October 2006. The journal was admitted over objection (Huseyin v Qantas Airways Limited and Anor, Supreme Court of New South Wales, Fullerton J, 30 October 2009). He also relied upon what Mr Joseph submitted was a consistent clinical picture of emerging symptoms of fibromyalgia, albeit not diagnosed as such, in the reports of various treating specialists and other clinicians he attended upon within weeks of the incident and for successive months thereafter. 72 An evaluation of the united force of this evidence has a significant bearing on the issue of causation, consistent with the Chief Justice's observation in Seltsam, that causation, like any other fact, can be established by a process of inference from primary facts. 73 Mr Williams cross-examined the plaintiff to suggest that he had deliberately exaggerated the effect of the injury to his head and the range and extent of his disabilities, and that he deliberately understated the extent of improvement in his condition from time to time to advance his case. There was, however, no challenge to the evidence of the plaintiff's wife or his father's description of his condition, initially on his return from Brisbane on 12 July 2006, then whilst overseas during the month of August 2006, and thereafter in the months leading up to February 2007 when he was first diagnosed with fibromyalgia. 74 I will return to consider the principles to be applied in resolving the issue of causation where there is no definitive cause of the disabling condition from which it is said the plaintiff suffers and only a gathering understanding of the complexities associated with its onset, and where a temporal connection between the onset of symptoms in an otherwise fit and healthy young man and the blow to his head is relied upon to support the reasonable inference that the condition he suffers from was caused by that mechanism.

The defendant's case 202 The defendant submitted that the evidence established that fibromyalgia is unlike other disabling medical conditions where a plaintiff's prognosis is able to be assessed with some degree of certainty by objectively verifiable methods of testing, including an evaluation of compromised function. Although the defendant accepts that the extent to which the plaintiff's function is diminished by pain is susceptible to clinical evaluation, the nature of fibromyalgia is nevertheless such that pain levels vary significantly with sufferers having what are described, colloquially, as "good days and bad days". It is submitted that I should view Ms Bolger's report as qualified in that way and conclude that the plaintiff's condition on the day of her assessment is not a reliable indicator of the level of his disabilities for the purpose of a calculation of damages. The defendant also relied upon the opinions of Dr Chase and Dr Watson to the effect that the litigation might itself aggravate the plaintiff's condition, and to Dr Bertouch's evidence that the finalisation of the litigation is likely to be beneficial to the plaintiff. 203 The defendant sought to impress upon me that researchers into the condition, and those who treat the condition, have the shared experience that the severity of symptoms of fibromyalgia are not only ameliorated by a reduction in levels of stress and anxiety but also that sustained improvements in function can be achieved by motivated participation in rehabilitative treatment programs of various kinds. The defendant also sought to make the case that where there is reliable scientific evidence that the amelioration or removal of anxiety and other psychological factors can make a positive contribution to pain management and an improvement in the function of patients who suffer from chronic pain syndrome, that it is critical to the plaintiff's future management and the potential for sustained improvement in his condition, that he accept the advice of his treating psychiatrist and submit to any new pharmaceutical regime. 204 The defendant submitted that I would be satisfied that the plaintiff will accept all medical advice directed to improving his capacity to function so as to enable him to re-enter the workforce. It was also submitted that because he is motivated to continue to engage in all treatment options offered to him to achieve that objective, that his prognosis is not as bleak as contended for. In short, the defendant submitted that the deterioration in the plaintiff's prognosis by his treating specialists since early 2007 from "good" to "poor" is likely to be reversed, or at least significantly improved, with a reduction in his levels of stress and anxiety under treatment for clinical depression by Professor Parker. 205 For these reasons, and with continuing research into the condition and its causes, the defendant submitted that the plaintiff's future economic loss should not be calculated by reference to the balance of his working life but by reference to a fixed period of five years, representing the time within which the plaintiff is likely to make a meaningful recovery sufficient to enable him to return to paid employment. This, it was submitted, is in accordance with the approach commended by McColl JA (with whom Mason P and Beazley JA agreed) in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [84]: "As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act , when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present."

214 Dr Dryson was also of the view that given the length of time that the plaintiff has suffered from fibromyalgia, it is likely that the condition would persist for the foreseeable future. He observed that treatment for fibromyalgia syndrome includes cardiovascular fitness and the provision of medication such as tricyclic antidepressant medications which are designed to modify neurotransmitter levels and the nerve endings of the spinal thermal tracks and the spinal cord. He noted that the plaintiff had been prescribed Prothiaden for this purpose. In his most recent report of August 2009 Professor Parker has recommended that the doses of Prothiaden be tapered with a view to ceasing his intake of that drug altogether in preference for Cymbalta, a tricyclic antidepressant medication which has the added benefit of addressing pain and has proved to be of considerable benefit for sufferers of the condition. 215 With regards to the plaintiff's future work capacity, Dr Dryson noted that because the plaintiff does have functional ability he does have some capacity for employment, but that he will experience discomfort on muscular use, particularly repetitive activities (such as handwriting, using a computer etc) or activities where there are sustained muscle contractions (such as holding objects). While he did not regard the prognosis for a full recovery as good, he did consider the plaintiff able to undertake work of a sedentary nature if he is able to vary his posture between sitting and standing, and if there is no significant requirement for repetitive activity or static postures particularly involving the neck. In Dr Dryson's view, the plaintiff's previous work in sales would be appropriate. Dr Dryson was expressly invited to reconsider that opinion in light of the fact that there had been no sustained improvement in the plaintiff's function since October 2007. He did not alter his earlier view. 216 Mr Joseph submitted that the defendant has exaggerated the difficulties involved in the assessment of the plaintiff's future loss and has overstated his prospects for recovery against the overwhelming weight of the evidence. In any event, he submitted that this is not a case where the awarding of a buffer will adequately compensate the plaintiff for loss he is likely to suffer in the future where, on the available evidence, he will remain grossly incapacitated. Despite the necessity to consider the role and function of pain management and other rehabilitative therapies, Mr Joseph submitted that damages should be assessed in the conventional way under the statute. 217 In keeping with the otherwise mandatory requirements of s 13 of the Civil Liability Act, in an appropriate case the use of a buffer has been an approach sanctioned by the Court (see Penrith City Council v Parks [2004] NSWCA 201 at [3]-[5]. See also Zreika v State of New South Wales [2009] NSWCA 99 at [30] where Ipp JA noted that the observations of Giles JA had been followed in several cases in the Court of Appeal). The question is whether this is such a case. 218 I do not regard this as an appropriate case to award a buffer. I am concerned that in doing so there is a real risk that the plaintiff would be under-compensated. I am satisfied that the comparative exercise mandated by s 13 of the Civil Liability Act can be meaningfully undertaken despite the difficulties inherent in assessing the plaintiff's residual earning capacity, and that an adjustment to the plaintiff's award for future economic loss will be sufficient to address the potential for the restoration of his earning capacity.

(1959) 102 CLR 522

(1976) 10 ALR 303

(1970) 45 ALJR 465

(1970) 44 ALJR 360

(1997) 41 NSWLR 49