Economic Loss
29When considering whether the appellant was entitled to damages for economic loss the primary judge was required to consider not only whether there had been a diminution in her earning capacity but also whether that diminution had been or may be productive of financial loss: Graham v Baker [1961] HCA 48; 106 CLR 340 at 346-347; Medlin v State Government Insurance Commissioner [1995] HCA 5; 182 CLR 1 at 3, 16.
30The appellant submits that the primary judge erred when assessing the diminution in her earning capacity and in assessing the likelihood that she would have sought to exploit her pre-accident earning capacity.
31The appellant says that when assessing the diminution in her earning capacity, the primary judge erred in not treating her adverse behaviour whilst at Mini Graduates as due to the dog attack. His Honour referred to that behaviour when considering whether the evidence established that the appellant's employment at Mini Graduates had ceased because of the consequences of the dog attack:
"[135] ... Her last day of work was 17 March 2010. No witness gave any evidence about the cessation of her work, even though all evidence was taken after that date. It may be that her employment was still open when she gave evidence. This would seem to be so in light of Ms Kirkpatrick's evidence that she would like to keep her but did not think that that was going to happen. In view of the fact that at work the plaintiff was from time to time manifesting florid symptoms that, in my view, were not the result of the dog attack, in the absence of evidence given as to how and why the plaintiff's employment ceased, I am not satisfied that it ceased because of the consequences of the dog attack.
The primary judge also found, when assessing her future loss of income, that the appellant may continue to be prone to "florid presentations of symptoms not occasioned by the dog attack": [137].
32There was some debate as to what the "florid symptoms" were. The appellant submitted that this was a reference to her "exaggeration and manipulation" which, whilst not necessarily a consequence of the dog attack as distinct from her pre-existing personality disorder, formed no part of her behaviour at Mini Graduates which led to Ms Kirkpatrick's evidence that she did not think the appellant's employment could continue, even on a part-time basis.
33The respondents' position was not so clear. At first it was submitted that the symptoms were the appellant's inability to cope with change and her becoming anxious and flustered. It was said that Dr Robertson conceded that it was "equally possible" that those symptoms were due to her underlying personality disorder as distinct from her post traumatic stress disorder, and that the primary judge was justified, for that reason, in describing those symptoms as not being the result of the dog attack. Later, the respondents submitted that the "florid symptoms" were those which the primary judge had earlier found not to be a consequence of the dog attack; symptoms such as her exaggeration and manipulation and emotional lability.
34These arguments make it necessary to consider the primary judge's findings in more detail. His Honour summarised the position in relation to the appellant's condition before and after the dog attack as follows:
"81. I think the best summary of the plaintiff's condition before the dog attack is to be found in one answer given by Ms Hudson. Ms Hudson was responsible for coordination of volunteers with the Benevolent Society. She said,
'Yeah, Penelope to me was a very responsible person. She always wanted to do things the right way, she was quite happy, she was chatty, she was friendly, she was talkative. She had a really - had a good attitude, a positive attitude. She had drive, she was looking towards the future of what she could do for herself and her children. She got on well with just about everybody I saw her in contact with and she was quite - she also was interested in people around her, mm.'
82. A summary of the plaintiff's condition after the dog attack is that she was anxious and overprotective of her children. Her thinking was not as coherent as it was. She could be unpredictable in what she was going to say. Her conversation could be inappropriate and go off on tangents. She would speak in a monotone. She was unreliable in keeping appointments and did not return phone calls. There is an issue as to whether these matters are the result of the dog attack or have a different cause." (emphasis added)
35When addressing whether the matters described in [82] were the result of the dog attack, the primary judge considered the evidence of Ms Kirkpatrick who he described as a reliable witness and whose evidence he accepted. In the course of discussing her evidence he referred to one of the "episodes" at Mini Graduates which adversely affected the appellant's capacity to hold her employment:
85. Gail Kirkpatrick was the authorised supervisor of Mini Graduates. She interviewed the plaintiff for the job. She thought that she would not be up to the job, but the person who came with her to the interview assured Ms Kirkpatrick that she would be. Observations made in that interview included that there was not much eye-to-eye contact, that she seemed very flustered, that she seemed very anxious, that she was not fully understanding what she was being asked. She observed that the plaintiff did not cope very well with change. She did not think she was coping very well with the demands of the job. There was a suggestion at some point that she could go to five days a week, but it was not a realistic prospect. She thought that three days a week was not continuing as a real possibility. There was an episode where she had to speak to the plaintiff. She had the impression that the plaintiff was not there and was not concentrating on what she was saying. She was constantly looking at her watch. On this particular occasion, the plaintiff had been subjected to an attack of perspiration. There was a lot of sweating. This was so much so that she described that 'she looks almost like she's stepped out of a shower ... Her face is very, very flushed ... Her hair is dripping'. (emphasis added)
86. Ms Kirkpatrick said she would love to keep her, but she did not think it was going to happen.
36The primary judge found, accepting Dr Robertson's opinion, that the matters described in [82] were consistent with the appellant having suffered post traumatic stress disorder and concluded that those matters were a consequence of the dog attack: [122], [123]. He summarised the emotional effects of the dog attack on the appellant as including:
125. ... The effects have included some social withdrawal. They include some broken sleep. They include some nightmares, but in view of the evidence of nightmares for nine months before the incident, I do not think these weigh heavily in the assessment. There is a phobic anxiety of others' dogs. There has been depression and anxiety. There is unhappiness. There have been difficulties with memory and concentration. Conversation has been unpredictable, inappropriate and tangential. (emphasis added)
37The primary judge's description of Ms Kirkpatrick's evidence at [85] does not include any emotional effects or matters which are not the subject of the finding at [125] which is set out above. Reference to Ms Kirkpatrick's evidence confirms that the two related incidents which are referred to, involved the appellant becoming anxious and flustered, having difficulty with her concentration and engaging in inappropriate conversation. In the first incident, which occurred at lunchtime during a discussion with staff, the appellant became anxious and flustered, said she was not coping with the staff lunch schedule and engaged in inappropriate language. In the second incident, which occurred a short time later in the supervisor's office, there was a discussion between the appellant and Ms Kirkpatrick in which the appellant's behaviour was unpredictable and she appeared not to be concentrating on what Ms Kirkpatrick was saying, was continually looking at her watch and was sweating and fidgeting.
38It follows that the primary judge erred in proceeding on the basis that the appellant's behaviour, which Ms Kirkpatrick described as adversely affecting her employment prospects, was not the result of the dog attack. That behaviour had earlier been the subject of express findings to the opposite effect. This makes it unnecessary to determine whether the primary judge's reference to "florid symptoms" was intended to be to other behaviour in which case he did not correctly identify the behaviour which caused Ms Kirkpatrick to say that it was unlikely that the appellant's employment would continue.
39The appellant also submits that when assessing the possibilities as to whether she would have exploited her pre-accident earning capacity, the primary judge erred in proceeding on the basis that she would not have sought or obtained permanent full or part-time work. In reaching that view, his Honour rejected the appellant's evidence that she intended to seek full-time work when her younger son finished his first year of primary school which would have been in 2006, as indicating that there was some possibility that she would have done so.
40The primary judge referred to a number of factors which he considered suggested otherwise. First, by the time of the dog attack the appellant had not been in paid employment for about 17 years. Secondly, she had not undertaken full-time work in 1998 when her second child had reached her first year of primary school. Thirdly, there was no reason why the appellant could not have undertaken paid employment from 2004 when she had commenced voluntary work with the Benevolent Society. Finally, although the appellant had been in paid employment since the dog attack, that fact should be discounted because in doing so she was motivated by the litigation which had been commenced in 2006.
41The primary judge did not give as a reason for his conclusion that he did not accept the appellant's evidence that she ever had such an intention. That conclusion was not available in the light of Mr Cazzy's evidence that before the dog attack he had spoken with the appellant about enrolling in a childcare course at TAFE and that someone from the Benevolent Society was helping her do so. The primary judge accepted that evidence.
42The appellant says that the primary judge's conclusion that there was no such possibility was not justified on the evidence which contained objective indications of conduct consistent with the existence of her stated intention of re-entering the workforce on a permanent basis.
43The appellant's employment history showed that she had obtained her school certificate in 1986 and been employed in junior positions between March 1986 and January 1988. Her first child was born in 1988 and her second child in 1992. Between the births of these children, the appellant had undertaken some secretarial and clerical work. She gave evidence that after the birth of her second child she was interested in further study and obtained a tertiary preparation certificate from TAFE with a view to going to university as a mature age student. Her third child was born in 2000. In 2003 she completed a ten-week course with the Benevolent Society and commenced volunteer work. That work involved her supporting families with young children. During this period someone from the Benevolent Society was assisting the appellant to enrol in a course at TAFE.
44Subsequent to the accident, the appellant completed a course at TAFE in Children's Services. In July 2008 she commenced working in childcare centres on a part-time basis. She worked at Mini Graduates for six months between September 2009 and March 2010. Ms Kirkpatrick's evidence indicated that her behaviour which the primary judge found was a consequence of the dog attack, could adversely affect her prospects of holding permanent employment on a full or part-time basis. The appellant did not work after March 2010.
45One further matter which the appellant relies upon is that at no stage was it suggested to her in cross-examination that in attending the TAFE for over a year or more and subsequently undertaking paid employment with various childcare centres, she was motivated by the fact of the litigation. Indeed, in their final submissions to the primary judge, the respondents did not dispute that the appellant was, on the evidence of Mr Cazzy, intending to go back into the workforce.
46The appellant's conduct before November 2005, having much earlier obtained the tertiary preparation certificate, in undertaking voluntary work with the Benevolent Society and seeking to enrol at TAFE is consistent with an intention to resume employment. The existence of such an intention was also corroborated by the evidence of Mr Cazzy. The fact that the appellant had not been in paid employment for about 17 years was not inconsistent with her intending to seek such employment after 2006. After all, the appellant had three children, at least one of whom was under school age during 14 of those 17 years. Little reliance could be placed on the fact that she did not undertake full-time work in the two years between 1998 and 2000 in circumstances where the cross-examination did not explore whether there were any good reasons why she may not have done so. The appellant's conduct in undertaking voluntary work for the Benevolent Society, rather than paid work elsewhere, was consistent with her stated intention to pursue paid employment in childcare because of her exposure to children as part of that voluntary work. Finally, the fact that after the dog attack the appellant had attended TAFE and engaged in paid employment could not be ignored as an indicator of what was possible. On the appellant's evidence and that of Mr Cazzy, she did not intend to study or return to employment before 2006. Therefore, she had no opportunity to go back to work, as she asserted she proposed to do, other than in the context of the litigation. Her having done so was consistent with that stated intention. When considering what may have happened on the hypothesis that she was not injured, there was no logical reason for disregarding that she had gone back to work on a part-time basis, particularly when it was not suggested by way of cross-examination that she had only done so because of her damages claim.
47For these reasons the primary judge's conclusion (at [133]) that the appellant would not have sought or obtained permanent full or part-time employment after November 2005 was not justified on the evidence. There was a possibility that the appellant would have sought permanent rather than merely casual employment. There remained on the evidence significant uncertainty as to whether she was likely to have sought and obtained permanent full-time as distinct from part-time employment and, if so, for what periods of time.
48These errors of the primary judge make it necessary to reconsider his Honour's assessment of the appellant's economic loss. That assessment is to be approached on the basis that her earning capacity was adversely affected by the fact that she was and may in the future be prone to behaviour, such as occurred whilst she was employed at Mini Graduates. It also has to be approached on the basis that there was a possibility that the appellant would have sought permanent work, more likely on a part-time rather than a full-time basis.
49The appellant claimed past economic loss for the period from 1 July 2006 to 1 July 2008 and from 17 March 2010 to the date of the hearing, a period of 104 weeks. That claim was made on the basis that she would have worked during the whole of each of those periods for three days a week. There are a number of matters which produce uncertainty as to what might have happened in that period if the appellant had not been tortiously injured. It is also unclear whether the fact that the appellant was unemployed after 17 March 2010 was due to those injuries.
50The claim assumes that the appellant would have commenced her TAFE course in early 2006 and completed it within six months, whereas the evidence indicates that she commenced the course in early to mid-2007 and did not complete it until mid-2008. The evidence showed that the appellant failed some subjects but did not provide a sound basis for assessing the likelihood of those failures occurring in the absence of the injury. The appellant's evidence was that in the period before August 2009 she had applied unsuccessfully for jobs and that she did not think that her injury had prevented her from obtaining work. In early September 2009 she obtained part-time work in a childcare centre and at the end of September commenced work at Mini Graduates for a period of six months. When the appellant concluded her employment there in March 2010, she said that she decided not to look for further work until the proceedings were resolved.
51Although Ms Kirkpatrick said that the appellant's behaviour at Mini Graduates raised serious questions as to her ability to work three days a week, the primary judge correctly observed (at [135]) that neither the appellant nor any other witness gave evidence as to whether her ceasing to work at the end of March 2010 was due to her perceived unfitness to do so. In medical reports prepared after that date, Drs Robertson and Samuell recorded being told by the appellant that she had been "retrenched" (Dr Robertson) or that she was "no longer required" because they could not afford her (Dr Samuell). In the absence of any direct evidence as to why this employment ceased in March 2010, I am not satisfied that the primary judge erred in assessing past economic loss on the basis that it did not come to an end because of the consequences of the dog attack.
52The primary judge's award of $10,000 inclusive of superannuation is equal to about six months employment at the net amount per week claimed for the period to July 2008. That amount was $350 net per week. Taking account particularly of the fact that for the first of these periods the appellant was re-entering the workforce after a number of years and that for the second it was not shown that her employment at Mini Graduates had come to an early end because of the attack, I am not satisfied that any different allowance should be made for past economic loss than was made by the primary judge.
53The claim for future economic loss was made for a period of 27 years on the basis that but for the impairments suffered as a result of the dog attack the appellant would have worked in childcare on a full-time basis. The primary judge rejected that hypothesis as to the appellant's most likely future circumstances. His Honour proceeded on the basis that those circumstances were that she would have sought and obtained work of a casual, part-time nature intermittently during that period: [138]. His Honour also proceeded on the basis that the possibility of future adverse behaviour of the kind described by Ms Kirkpatrick was not to be taken into account when assessing future economic loss: [137].
54Making allowance for the errors of the primary judge to which I have referred, the appellant's most likely future circumstances, absent the injury, were that she would have sought employment on a part-time basis during the remaining period and that she would not always have obtained that employment. It is likely that because of the dog attack there will be occasions during that remaining period when she is unable to obtain or maintain the employment she would otherwise have had. There remains much uncertainty as to the frequency and duration of those occasions and I agree that it is appropriate to award the appellant a lump sum to take account of those uncertainties.
55The primary judge's lump sum award of $25,000 inclusive of superannuation is roughly equivalent to 10 months part-time employment at the rate claimed for the period immediately before the hearing. That amount was $550 net per week. I consider that lump sum to be inadequate. The primary judge's finding was that although the appellant's post traumatic stress disorder was in partial remission, it was likely to continue indefinitely at a relatively mild level. That disorder carried with it the continued possibility of behaviour such as that which occurred at Mini Graduates, which would adversely affect her capacity to obtain and maintain employment in childcare centres and more generally. That was so in relation to part-time work, whether casual or permanent and significantly reduced the possibility that the appellant could maintain full-time employment. The award of damages should take account of that continuing possibility coming to pass over the remaining period of the appellant's working life. Allowing for these matters, I consider that the lump sum should be increased to $125,000.