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[2012] TASFC 3
General information, not legal advice.
Supreme Court of Tasmania (Full Court)
2012-07-27
Crawford CJ, Wood JJ, Porter J, Blow J
Original judgment source is linked above.
CITATION: Partridge v Hobart City Council [2012] TASFC 3
APPEALED FROM: Partridge v Hobart City Council [2010] TASSC 62
Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Deductibility of specific benefits and amounts - Pensions and superannuation benefits - Disability support pension.
National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569; Redding v Lee [1983] HCA 16; (1983) 151 CLR 117, applied.
Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637; Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 4; (2006) 17 NTLR 83, followed.
Sorenson v Woolnough [1989] Tas R (NC) 15; A32/1989; [1989] TASSC 36; Burbury v Sievers A83/1994; [1994] TASSC 132, overruled.
Damages - Particular awards of general damages - Tasmania - Back, knee and hand injuries - General damages $40,000 not set aside as inadequate.
Appellant: D J C Kerr SC, C H Hobbs, A Browning
Judgment Number: [2012] TASFC 3
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TREZISE t/as TREZISE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS
MOIRA KATHLEEN PARTRIDGE v HOBART CITY COUNCIL,
MICHAEL TREZISE t/as TREZISE LAWYERS, PETER BEHRAKIS,
VICTORIA ANN BEHRAKIS, DENNIS BEHRAKIS, MARIA BEHRAKIS
1 On 17 June 2002 the appellant, Moira Partridge, went to see her solicitor, Michael Trezise, the second respondent to this appeal, at his office in Salamanca Place in Hobart. His office was upstairs, above the premises of the Salamanca Fruit Market. As she was leaving that office, Mrs Partridge fell down some external steps that she was using to descend to ground level. The steps stood on land owned by the Hobart City Council. They were open to the elements. Mr Trezise's office was rented by two service companies from four landlords - Peter Behrakis, Victoria Ann Behrakis, Dennis Behrakis and Maria Behrakis ("the landlords"). Mrs Partridge sued the council, Mr Trezise, and the landlords for damages for negligence in respect of her injuries. Her action went to trial. She was successful against all defendants. Porter J held that they were all negligent; assessed damages in the sum of $409,019.09; reduced that figure by 20% because of contributory negligence on the part of Mrs Partridge; made further adjustments in relation to workers compensation payments and income tax; and ordered that judgment be entered for Mrs Partridge against all the defendants for $295,350: Partridge v Hobart City Council [2010] TASSC 62.
2 Mrs Partridge has appealed. She contends that the learned trial judge made various errors in the course of assessing her damages, and that the judgment sum should be increased. The council, Mr Trezise, and the landlords have all cross-appealed. Mr Trezise and the landlords contend that the learned trial judge erred in holding that they were negligent, and that Mrs Partridge's fall resulted from their negligence. They contend that her claims against them should have been dismissed. All of the respondents, including the council, contend that the learned trial judge made errors in assessing damages that resulted in the judgment sum being excessive, and that it should be reduced.
3 Most of the grounds of the appeal and cross-appeals involve challenges to findings of fact made by the learned trial judge. The principles relevant to such grounds of appeal have been explained by the High Court in a number of cases, including Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at 351 - 352[1989] HCA 20; , 85 ALR 23 at 27 - 28; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482 - 483; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at pars[23] - [31]. We do not think it necessary to restate the relevant principles.
4 The landlords contend that the learned trial judge made errors in two respects - in finding that the appellant's fall was caused by her slipping on the steps, and in finding that it was reasonably foreseeable by the landlords that someone would be injured as a result of using the steps when they were wet.
5 The steps were tiled. The front edge of each step was rounded. As the steps were outdoors, they got wet whenever it rained. At the trial, the appellant contended that she slipped on one of the steps when it was wet, after rain. However the respondents contended that all the evidence was consistent with her stumbling and losing her footing, without slipping, and that the evidence failed to establish on the balance of probabilities that she had slipped at all.
6 The learned trial judge accepted evidence from a professional consulting engineer, Mr Dohrmann, that there was a high risk of slipping on the steps when they were wet, but a very low risk of slipping when they were dry. He found that the steps were wet at the time of the appellant's fall. He was satisfied on the balance of probabilities that she "slipped on the first step as she was descending the stairway, that step being wet with rainwater at the time": par[99] of his reasons. In making that finding he accepted evidence from the appellant's husband to the effect that she essentially "fell flat on her back and slid for a distance". A paralegal who worked in Mr Trezise's office, Christine Webster, was called as a witness for the appellant at the trial, and gave a somewhat different description of the appellant's movements as she fell.
7 Grounds 6 and 7 in the landlords' notice of cross-appeal relate to the issue as to whether the appellant slipped or not. Those grounds read as follows:
"6 Having correctly identified (at [95]) the onus on the plaintiff to prove that she slipped as alleged by her, the Learned Trial Judge erred in finding that the probability that she slipped was greater than the possibility that she did not.
(a) notwithstanding that Ms Webster's evidence about that went unchallenged and was not inherently inconsistent with other evidence that the plaintiff came to land on her back on the steps; and
(b) on the basis of an assumption, unsupported by any evidence or any effective challenge to Ms Webster's evidence, that she would have had difficulty appreciating the nature and extent of the plaintiff's forward movement from the position from which she viewed the fall."
8 The appellant's description of her fall, as it appears in the transcript of her evidence-in-chief, was as follows:
"... and I just went to proceed down the stairs, and my leading foot when it hit the first step just didn't seem to have any traction, any grip whatsoever, and I committed myself to descending at that point.
Well you'd better tell us what you mean by that.......Well I couldn't - I couldn't reverse. I have a memory of that foot going through the air in front of me, or both feet, and as I'm left-handed, left-hand dominant, I lashed out to grab at something to prevent a fall, but there was no rail there and I smacked the back of my hand against the brick wall that was there. I had a sensation of being airborne and of going past a window. When I landed there was a time when I couldn't feel anything at all. ... I was on my back and my left leg was fairly straight but my right leg was a bit skewed."
9 A little later she said that she stepped off the landing at the top of the stairs, and that her foot connected with the first step below the landing. She said, "And to me it was like stepping on ice, there was just no traction at all and my foot just went straight off the step and up into the air."
10 The appellant's husband gave evidence that he was going down the stairs in front of her. He gave a description of her overtaking him as she fell, and landing in front of him. He said that the first parts of her body that he saw were her feet, and indicated by gestures that they came out horizontally. He said:
"... her head was at one end but the other end were her feet and she was level in between, although I couldn't see her head then."
He gave unchallenged evidence that the steps were wet.
11 The only other eye witness to give evidence of the fall was Christine Webster, the paralegal who worked in Mr Trezise's office. She said that she was sitting at the reception desk, in a position where she could see through the front door of the office and out to the stairs. Her description of the fall was as follows:
"Moira's gone out first, she's gone to the left of the stairs, which has got the sandstone wall on it, she's gone to go down the stairs, she's gone down on either one or two stairs, then I saw her go forwards and I thought, 'Shit, she's fallen', then she - she held out her right - no, her left hand - left hand towards the sandstone wall and then as she went forward and had her hand out then she started going backwards and then as she started going backwards she had her right hand and she had her right hand right behind her - right behind there as if she was just trying to break the fall from falling backwards, and then she went down and the position that I saw her go down on the stairs I could see that she'd - she'd crunched her back on the stairs. So she'd gone directly back onto - onto one of the stairs."
12 In his reasons, the learned trial judge took into account some evidence that the appellant had had a recent history of dizziness, unsteadiness on her feet, and nausea. He observed that the notes of her general practitioner, Dr Edwards, suggested a diagnosis of labyrinthitis on 9 May 2002, which was less than six weeks before the fall. His Honour observed that the notes did not suggest any treatment. He also took into account some evidence that the appellant suffered a blow to the head at the end of May 2002, and reports of associated giddiness, nausea, ongoing disorientation, and some clumsiness. The appellant was not cross-examined about any of those medical problems. In particular, she was not cross-examined as to what symptoms, if any, she had up to the day of her fall.
13 His Honour made a finding, based on Mr Dohrmann's evidence, that, when wet, the contribution of the tiled surface of the steps to the risk of slipping would have been high. He took into account evidence of the appellant that she was wearing "sandshoes with inbuilt tread and traction" that were part of her work uniform for safety purposes, but he observed that Mr Dohrmann's evidence did not exclude the possibility of slipping whilst wearing high grip rubber soled footwear. He took into account evidence from Mr Dohrmann that the rounded nose of the step was where most people tended to walk, and that that surface consisted of an incline where the minimum traction required naturally increases.
14 His Honour made adverse findings about the credibility of both the appellant and her husband. We will summarise those findings when considering ground 1 of the appeal.
15 As a result of his adverse credibility findings about the appellant and her husband, his Honour treated their evidence as potentially unreliable and scrutinised it carefully. He concluded that there was nothing inherently unlikely about the appellant's description of her accident. He considered that her husband's evidence confirmed that she was "in a roughly supine position above the steps after her fall had commenced, and before she landed".
16 His Honour discounted Miss Webster's evidence, saying this:
"I accept that she was doing her best to describe what she saw, but I have difficulty in reconciling the initial movements of the plaintiff's which she described, with the way in which the plaintiff ultimately made contact with the steps. It is to be remembered that Ms Webster was sitting behind the stairway and would have had difficulty appreciating the nature and extent of the forward movement. It is possible that the plaintiff fell forward and when reaching out to save herself, in some way tipped her body backwards, but I think the probabilities are otherwise. It may well be that the plaintiff first slipped slightly forward, or moved slightly forward as a natural reaction in order to regain her balance when her foot or feet went out from under her. In any event, I do not regard such a movement, if it occurred, as significant in the overall scheme of things."
17 After that review of the evidence, his Honour concluded, "... it is more likely than not that the plaintiff slipped on the first step as she was descending the stairway, that step being wet with rainwater at the time."
18 The landlords contend that his Honour attached too little weight to the evidence of Miss Webster and too much weight to the evidence of the appellant and her husband. Their counsel submitted to us that Miss Webster's evidence that she saw the appellant go forwards tended to indicate that the appellant lost her footing without slipping. He argued to the effect that Miss Webster would have had a better view of what happened than his Honour thought she had.
19 These proceedings involve a number of challenges to findings of the learned trial judge that were based, at least in part, on his assessments as to the credibility of witnesses. It is therefore worth repeating at this point what Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy (above) at par[23]:
"On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." [Footnotes omitted.]
20 His Honour had the advantages of seeing and hearing the witnesses, and of having inspected the place where the fall occurred. He was in a better position than this Court to reach conclusions as to how well Miss Webster could see what was happening, and as to the credibility of the witnesses. His Honour conducted a thorough analysis of the evidence, and was appropriately cautious in his approach to the evidence of the appellant and her husband. There was uncontradicted evidence that the steps were wet at the time of the fall, and that they were slippery when they were wet. The appellant gave evidence that, when she stepped onto the first step, she experienced a sensation like stepping on ice, with no traction at all, whereupon her foot went straight off the step and up into the air. In our view it has not been demonstrated that his Honour made any error in reaching the conclusion that he was satisfied on the balance of probabilities that the appellant slipped, as distinct from falling without slipping.
21 In our view Miss Webster's description is not inconsistent with the appellant having slipped and fallen. There is no reason to infer that Miss Webster's reference to the appellant going forwards is a reference to her upper body being tilted forwards. If it was tilted forwards, that is not necessarily inconsistent with her slipping.
22 It follows that grounds 6 and 7 of the landlords' cross-appeal must fail.
23 The appellant pleaded that the landlords were negligent in failing to install a non-slip surface to the steps, failing to warn her that they were slippery when wet, failing to apply slip-resistant strips to each tread of the steps, failing to install a handrail to each side of the steps, failing to install a cover over the steps so as to keep them dry, and failing to make any enquiry as to the steps, or to monitor the safety of the steps. The learned trial judge found that the steps, when wet, posed a risk of injury that was reasonably foreseeable; found that the landlords ought to have been aware of that risk; and found that they had done nothing to alleviate the foreseeable risk. He found that Mr Trezise was negligent in failing to put up a simple sign, at the exit from his office or the top of the stairs, warning that the steps were slippery. He held that, by failing to do anything to alleviate the foreseeable risk, the landlords were in breach of their duty of care.
24 His Honour held that the landlords owed the appellant a duty of care, and that their duty was "that which would ordinarily attach to an occupier". That conclusion is not attacked by grounds 8 and 9. These grounds relate only to the content of the landlords' duty of care. They challenge the finding that they breached their duty of care only in relation to the foreseeability by them of a risk of injury. Grounds 8 and 9 of their notice of cross-appeal read as follows:
"8 The Learned Trial Judge erred in finding (at [138]) that there was an objectively foreseeable risk of injury from the perspective of the reasonable person in the position of the third defendants [ie the landlords] when there was no evidence from which to conclude that any of the third defendants could have acquired sufficient relevant knowledge of the steps to justify attributing to them the capacity for that foresight. In particular, his Honour erred in finding that the third defendants had a high degree of familiarity with the steps having assumed responsibility for the cleaning of them when there was no evidence that cleaning was ever actually carried out by any of the third defendants and there was no other evidence from which any finding could otherwise be made as to the state of knowledge possessed by any of them as to the condition of the steps.
(a) His Honour found that the third defendants never became aware of the previous incidents and communications referred to at pars. [123]-[128].
(b) The only other basis expressed by his Honour (at [122]) for concluding that there was, before the date of injury, a foreseeable risk of injury was his Honour's own view of the steps on the first day of the trial (that is, seven years after the date of injury) and Mr Dohrmann's evidence, based on inspection of the steps eight months after the date of injury.
(c) It was Mr Dohrmann's evidence that the condition of the steps would change with the passing of time and continuous use."
25 The learned trial judge had evidence in the form of answers to interrogatories by one of the landlords, Peter Behrakis, that they engaged cleaners to clean the common areas of the premises; that it was part of the responsibility of the cleaners to keep the steps clean; and that the steps were cleaned twice a week. However there was no evidence that any of the landlords had ever seen the steps, or received any information about the condition of the steps or about anyone slipping on them.
26 In making his findings that the landlords had breached their duty of care, the learned trial judge said this, at par[138]:
"The third defendants had a high degree of familiarity with the steps having assumed responsibility for the cleaning of them twice a week. By failing to do anything to alleviate the foreseeable risk, they were in breach of their duty of care."
27 There was evidence that Christine Webster had slipped on the steps twice before the appellant's fall; that she had heard of others doing so; that she thought the stairs were dangerous; that she talked to Mr Trezise about the danger; and that she communicated with council officers about the danger by telephone. However, as ground 9(a) asserts, there was no evidence that the landlords ever became aware of any of those communications, nor of any slipping incidents. It is also correct that, as asserted in ground 8, there was no evidence that any of the cleaning was personally carried out by any of the landlords.
28 It was an admitted fact that the landlords owned the premises that included Mr Trezise's office. There was undisputed evidence that a right of footway appurtenant to their land, over the land occupied by the steps, was granted to them in December 1997. There was no evidence as to how long they had owned their property before then. And there was no evidence that any of the landlords had ever used the steps, or even looked at them.
29 Counsel for the landlords submitted that, that being the state of the evidence, there was no basis for concluding that the landlords knew or ought to have known that the steps presented any specific risk of injury to persons using them.
30 In our view the learned trial judge was wrong to say that the landlords "had a high degree of familiarity with the steps". There was no evidence that any one of them had any familiarity with the steps at all. But it by no means follows that the steps presented no foreseeable risk of injury.
31 The learned trial judge inspected the steps during the trial, about 7½ years after the appellant's fall. It was an agreed fact, as between all parties, that the steps had not changed since the day of the fall, save for the application of black adhesive strips located at the nose of each of the steps. His Honour was therefore entitled to proceed on the basis that there had been no significant erosion or other change to the steps since the appellant's fall, and since Mr Dohrmann's inspection. In par[97] of his reasons he referred to his inspection and commented, "From a lay perspective, I would regard them [the steps] as having the appearance of being likely to be slippery when wet, and calling for the exercise of caution."
32 The duty of care that the landlords owed to users of the steps required them either to undertake an inspection of the steps, or to get someone else to do so, for the purpose of identifying any risk of injury that reasonably required preventative action. We infer from the learned trial judge's comment as to his own inspection that any inspection would have suggested a likelihood that the steps would be slippery when wet, and a foreseeable risk that someone would slip on them when they were wet. Accordingly, we consider that the learned trial judge was right to conclude that it was reasonably foreseeable, on the part of the landlords, that someone might slip on the steps when they were wet. Grounds 8 and 9 therefore fail.
33 As we have said, the learned trial judge made a finding that there was a foreseeable risk of injury to persons slipping on the steps when they were wet, particularly when descending. He also made findings to the effect that Mr Trezise was aware of "at least a potential actual danger created by the steps being slippery"; that he was aware that the council was apparently going to do nothing about the risk; that there was no other way for people go to or from his office; that "a reasonable person in his position would have adopted the simple and expedient means of a warning sign directed to the discrete issue of the potential slipperiness of the steps"; that he did nothing to warn the appellant of the risk; and that his failure to warn amounted to a breach of duty. He held Mr Trezise to be negligent on that basis alone.
34 The grounds relating to liability in Mr Trezise's notice of cross-appeal assert that the learned trial judge erred in finding that Mr Trezise was in breach of his duty of care to the appellant (ground 1); that he erred in relation to causation in making findings that, if warned by a sign, the appellant would have been more alert to the situation, gone about the task of descent differently, and avoided a fall (grounds 2 and 3(b)); and that he made an error as to what the appellant said in her evidence on one point (ground 3(a)).
35 The wording of ground 1 involves an acceptance that Mr Trezise owed the appellant a duty of care. It reads as follows:
"The Learned Trial Judge erred in finding at [137] that the second cross-appellant was in breach of his duty of care to the Plaintiff by failing to take reasonable steps to warn the plaintiff of the risk of the steps being slippery when wet."
36 Mr Trezise contends that all steps may be slippery, more so when they are wet, and that a warning sign was not necessary to put people on notice of those facts.
37 In Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA (as he then was) said at par[32], in a passage quoted by the learned trial judge:
"Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: 'persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety': Stannus v Graham [1994] NSWCA 46 per Handley JA."
38 We do not disagree with any of those propositions. But in our view the evidence established that the steps on which the appellant fell were more dangerous than most. As we have said, Mr Dohrmann gave evidence to the effect that there was a high risk of a person slipping on the steps when they were wet, but a very low risk when they were dry. Christine Webster gave evidence that she had worked for Mr Trezise for about 23 years; that they moved to the office in Salamanca Place in mid-1999, which was some three years before the appellant's fall; that, prior to that fall, she had had a discussion with Mr Trezise and told him she believed the stairs were dangerous; that she was concerned that a client was going to get injured on the stairs and wanted to do something; and that she made a telephone call to the council about the stairs after that discussion. She had a perception of the stairs being dangerous because of comments from other staff members and two occasions when she had slipped on the stairs herself. In an answer to an interrogatory tendered on the trial, Mr Trezise said that he was told some time in late 2000 by Christine Webster that the steps were slippery and potentially dangerous. All of that evidence was uncontroversial.
39 No question arises on this appeal as to the existence of Mr Trezise's duty to take reasonable care for the safety of visitors to his office. The question is whether, in all the circumstances, the risk of a visitor falling on the stairs was so great that a reasonable person in his position would have acted to obviate that risk by putting up an appropriate sign. In our view, having regard to the evidence referred to above, that is what a reasonable man in Mr Trezise's position would have done. The learned trial judge was right to hold that he had breached his duty of care.
40 In relation to this ground, counsel for Mr Trezise advanced a subsidiary argument relating to a comment made by the learned trial judge when he was discussing what would be involved in putting up an appropriate sign. At par[134] of the judgment, his Honour said:
"Because it would not have involved anything of any permanence or of structural significance, I do not imagine that the second defendant would have been prevented from erecting a suitable sign at the top of the stairway on the left hand side which would have been readily visible to those about to descend, warning that the steps were slippery when wet. Alternatively a similar sign in a prominent place at the exit to his office would have been almost, if not completely, as effective as a sign at the top of the stairway, given the proximity of the door of his office to the landing and the first step."
41 Counsel drew our attention to his Honour's use of the words "when wet" at the end of first sentence in this passage. The evidence as to the conversation between Miss Webster and Mr Trezise (ie her oral evidence and the answer to the interrogatory) revealed only that she told him that the steps were slippery, not that they were slippery when wet. Counsel submitted that there was no evidence that Mr Trezise knew or ought to have known of a particular risk when the steps were wet, and that his Honour erred in holding that he should have posted a warning sign warning of the specific danger when the steps were wet.
42 When his Honour came to make his finding of a breach of duty, he said nothing about wetness. What he said, at par[137], was this:
"Given that the steps were used for the purposes of enabling the second defendant to conduct his business, and given that he was aware of at least a potential actual danger created by the steps being slippery, I find that he was in breach of his duty by failing to take reasonable steps to warn the plaintiff of the risk. In my view, a reasonable person in his position would have adopted the simple and expedient means of a warning sign directed to the discrete issue of the potential slipperiness of the steps."
43 However, when his Honour subsequently made a finding as to a causative link between Mr Trezise's breach of duty and the appellant's fall, he did mention wetness. At par[144], he said this:
"If she had known that there was a risk that the steps were slippery when wet, then she would have been more alert to the situation, and adjusted the way in which she negotiated the steps accordingly."
44 The absence of evidence that anyone mentioned wetness when telling Mr Trezise that the steps were slippery will need to be addressed in relation to the cross-appeal grounds concerning causation. However, so far as the ground concerning Mr Trezise's breach of duty is concerned, the absence of such evidence is insignificant. Mr Trezise may or may not have known that the slipperiness of the steps was associated with wetness. Whether he knew that or not, we think the learned trial judge was correct to hold that he breached his duty of care by failing to put up a simple warning sign. That was a cheap, convenient and easy step that he could have taken to obviate the risk of injury. Ground 1 of Mr Trezise's cross-appeal must fail.
45 The learned trial judge's conclusions as to the causative link between the absence of a warning sign and the appellant's fall, in par[144] of his reasons, were as follows:
"There is evidence from which I infer that the plaintiff had been to the second defendant's office on several prior occasions. I am satisfied that had a warning sign been in place on the day of the accident, she would have noticed it by then. I have had the benefit of observing the plaintiff and listening to her give evidence for a considerable period of time. I have access to documents created by her and the notes of extensive discussions with Mr Hamer [a clinical and counselling psychologist who saw the appellant frequently from April 2001 until April 2003], which bear on her personality and attention to detail. I also have regard to the way in which she described her ascent of the steps and as to whether she used the handrail on the left side when ascending. From all of that I infer that if she had been made aware of the potential danger of the steps, she would have gone about the task of descent on this occasion differently and in a manner which would have avoided the fall. I am conscious that the plaintiff said that the steps did not look wet to her as she approached to go up, but she was aware that it had been raining. If she had known that there was a risk that the steps were slippery when wet, then she would have been more alert to the situation, and adjusted the way in which she negotiated the steps accordingly."
46 Grounds 2 and 3 of Mr Trezise's notice of cross-appeal relate to this paragraph. They read as follows:
"2 The Learned Trial Judge erred in finding at [144] that, had the second cross-appellant warned the Plaintiff of the potential danger of the steps, she would have gone about the task of descent differently and in a manner which would have avoided the fall.
3 The Learned Trial Judge erred in finding at [144] that,
47 Most of the submissions of counsel for Mr Trezise in relation to these grounds related solely to some evidence of the appellant about the steps not appearing to be wet. When giving evidence about her departure from Mr Trezise's office, she said, "As I approached the stairway, the stairs didn't to me look wet."
48 It seems clear that the learned trial judge made a mistake, though in our view an inconsequential one, when he said, "I am conscious that the plaintiff said that the steps did not look wet to her as she approached to go up ...". When she gave evidence that the steps did not look wet to her, she was speaking about the time when she was approaching them to go down, not up. Her only evidence as to the state of the steps when she went up them was during her cross-examination. She said that she did not recall taking particular care when going up the steps, that she did not recall them being wet when she was going up them, and that she did not recall having any difficulty going up them. However the learned trial judge's findings as to what the appellant would have done if there had been a warning sign did not depend on how she thought the steps looked at any particular time.
49 Counsel for Mr Trezise argued that, if there had been a sign saying that the steps were slippery when wet, the appellant would not have been more alert to a risk of slipping, and would not have gone about the task of descending the steps in a different way, because they did not appear to her to be wet. However we see no reason why we should make a different finding on this point from that of the learned trial judge, particularly in view of the opportunity that he had, and referred to in his reasons, to observe the appellant and listen to her give her evidence over a considerable period.
50 Mr Trezise had been using the steps in question to travel to and from his office for about three years before the day of the fall. There was no other way to or from the office. If he had put up a sign, it is more probable than not that he would have been aware, at least after making appropriate enquiries of the staff of his office, that the slipperiness of the stairs was associated with wetness, and that the sign would have warned that they were slippery when wet. Having regard to the learned trial judge's assessment of the appellant, we think it more probable than not that, even if such a sign had warned only that the steps were slippery, she would have taken more care in descending the steps on the day in question, knowing that it had rained. We are satisfied on the balance of probabilities that, if the appellant had been warned that there was a risk that the steps were slippery, then she would have been more alert to the situation, adjusted the way in which she negotiated the steps, and not fallen.
51 Grounds 2 and 3 of Mr Trezise's cross-appeal must fail.
52 The appellant claimed damages on the basis that her principal injuries resulting from her fall were to her low back, right knee, and left hand. It was claimed that, as a result, she developed an incapacitating chronic pain condition. At the time of her fall she was working full-time for a family company, managing a kindergarten business named Tingletree. She took time off work after her fall, returned to work part-time, and never returned to full-time work. The business was sold in about September 2003. The appellant has not done any paid work since then. She claimed damages on the basis that, as a result of her fall, she had been unable to do any more work than she in fact did prior to the sale of the business, and that her earning capacity had been totally destroyed. She and her husband sold their home in Hobart in late November 2003, and went to live in a waterfront residence at Booker Bay in New South Wales. They bought a yacht in April 2004. Their lease of the Booker Bay property expired in October 2004. From then until the trial they lived on their yacht at a marina at Yamba in northern New South Wales. The appellant claimed that the sale of the business and of the Hobart residence had been necessitated by her injuries. She claimed damages on the basis that her injuries had had a significant impact on her participation in sporting and leisure activities, and on her ability to enjoy her married life, and that they had resulted in ongoing needs for medical treatment, medication, personal and domestic assistance, and various forms of expenditure.
53 The respondents contended at trial that there was very little wrong with the appellant; that, at most, her fall resulted in a temporary exacerbation of pre-existing medical complaints; and that she was exaggerating her symptoms for gain.
54 As we have said, the learned trial judge made adverse findings as to the appellant's credibility. He reached conclusions to the effect that she was incapacitated by her injuries, but not the extent that she claimed. He assessed damages as follows:
55 His Honour explained the adjustments that resulted in the judgment sum being $295,350 as follows:
"Deducting 20 per cent from the total for contributory negligence gives $327,215.27. To be further deducted is the total amount of workers compensation payments of $32,611.84, which results in a figure of $294,603.43. In order to comply with the principle established by Fox v Wood [(1981) [1981] HCA 41; 148 CLR 438], 20 per cent of the tax paid of $3,764.84 which is $752.97, should be added. That gives a figure of $295,356.40. Assessment is a matter of overall judgment aided by calculations. There will be judgment for the plaintiff against the defendants for $295,350.00."
56 Grounds 1, 8 and 9 of the appellant's grounds of appeal assert specific errors by the learned trial judge in relation to the assessment of general damages for pain and suffering and loss of amenities, as does the final ground in each notice of cross-appeal. Ground 7 asserts that the award of $40,000 under this head was manifestly inadequate. It is appropriate first to consider the relevant grounds that assert specific errors; then to consider the adequacy or otherwise of the award of $40,000; and then to consider the grounds relating to economic loss.
"His Honour erred by substituting His Honour's own judgment for the opinion of medical experts that the Appellant suffered a chronic pain condition."
58 If this ground were to succeed, it would be necessary to reconsider not only the assessment of damages for pain and suffering and loss of amenities, but also the assessments relating to many other heads of damage.
59 The opinion evidence in question was of a consultant physician and pain management specialist, Dr David Gorman, a psychiatrist, Dr Philip Reid, and a consultant in occupational medicine, Dr John Davis. They were all engaged by the appellant's solicitors in 2008 or 2009 to provide medico-legal reports.
60 Dr Gorman interviewed the appellant on 26 May 2009 and reviewed a number of letters and proofs of evidence of other doctors and therapists, and of a psychologist, along with copies of records of the appellant's general practitioner from 1995 to 2003. Dr Gorman expressed his opinion that the appellant was suffering a condition called "chronic pain", which he explained was "persistent pain" by its very definition, and permanent.
61 It is clear that Dr Gorman accepted, and relied on for his diagnosis, statements made by the appellant concerning the pain she was suffering. In order of severity, his brief description of them was:
62 Understandably, all of the medical specialists looked for objective signs for the cause of the pain the appellant claimed she was suffering. Dr Gorman emphasised that chronic pain may exist without identifiable pathology but said it existed in this case. Concerning the pain emanating in the back, he referred to evidence of widespread annular fissuring of the L4/5 disc and a ruptured disc at the L5/S1 level. He also mentioned radiological evidence of a minor effusion in the right knee joint on 3 September 2003.
63 Dr Reid interviewed the appellant for about an hour before providing a report. He also had regard to a number of reports of specialists. Similarly to Dr Gorman, he referred to a compression injury to the lumbar sacral spine in the fall with ongoing pain due to an L4/5 disc prolapse demonstrated on CT scan, and a subsequent discogram that had revealed a ruptured disc at L5/S1. Dr Reid was of the impression that the appellant suffered from chronic pain syndrome caused by physical injuries and not by a non-organic disorder.
64 Dr Davis assessed the appellant for her solicitors on 12 June 2008. In his report he noted her complaints of pain and disability. Like Drs Gorman and Reid, he accepted her complaints as truthful. He referred to the radiological evidence of injuries in the spine at the L4/5 and L5/S1 levels. He also referred to palpable crepitus in the right knee, but with no swelling or effusion. As with the other doctors, he noticed no objective signs of injury to the left hand at the time of examination. In a report dated 20 November 2009, Dr Davis stated that he concurred with Dr Reid's opinion that the appellant was suffering from a chronic pain syndrome and he agreed with Dr Gorman that she was not suffering significant non-organic symptoms.
65 In a report dated 7 August 2009, Dr Davis recorded that the appellant had reported complaints that included continuing constant pain in the lower back and right knee; pain and paraesthesia extending through both legs to the toes; discomfort when sitting or standing in one place, as well as with travelling for prolonged distances, bending and heavy lifting; aggravation of her right knee pain by using steps and when walking down inclines or on uneven ground; exacerbation of symptoms with squatting and an inability to kneel on her right knee; a description of her left hand becoming motley, swollen and tender after excessive use; and restriction in undertaking normal domestic chores.
66 In their reports and evidence, all of those specialists partly based their opinions concerning the existence of a chronic pain syndrome on the objective evidence of injury to which we referred. There was also an objective sign recorded on 5 August 2009 by an orthopaedic surgeon, Dr Drew Dixon, as mild erector spinae muscle spasm. He explained it to be an involuntary muscle contraction and an objective physical sign of injury.
67 It is clear that the appellant's medical specialists regarded her complaints as genuine and did not consider she was exaggerating or malingering. Drs Gorman and Davis maintained their opinions after they had viewed the video surveillance material in evidence.
68 At the trial, the respondents conducted their defences upon the basis that the appellant and her husband were not credible witnesses and that the appellant's complaints to the medical witnesses of ongoing pain and disability, and her evidence of them, should not be accepted. They were issues squarely raised for the determination of the learned trial judge.
69 After a long and detailed consideration of the evidence of the appellant, her husband, independent and other witnesses, including the appellant's medical experts, as well as the surveillance videos and medical and hospital records, the learned trial judge expressed his conclusion as to the appellant's chronic pain condition, to which the ground of appeal is directed, at par[274]:
"In relation to the proposition that the plaintiff suffers from chronic pain condition, I am satisfied that there are some elements of that condition present, but not that she suffers from an entrenched condition as such, to the degree suggested. I am conscious that this involves not accepting, at least to the full extent, the expert opinions. However, to a large extent, those opinions were based on what the plaintiff said, and I have had the benefit of a great deal of evidence which bears on the plaintiff's state. I accept that the plaintiff's lack of fitness and condition is playing a role in her restriction of movements to the extent that they are, and that depression affects her general wellbeing. However, she was apparently suffering depression before the accident; at least, she was regularly taking anti-depressant and anxiolytic medications. Sensitization may also be an explanation for the level of pain which does exist, but overall that level of pain and the level of disability of which I am satisfied is not such as to warrant the diagnosis of this entrenched chronic pain state."
70 The respondents did not call any medical witnesses at the trial. Counsel for the appellant submitted to this Court that, as there was no dispute between experts in relation to the chronic pain condition, it was an error of law for the learned trial judge not to have accepted the evidence of the appellant's medical experts. He also submitted that her medical condition was a "matter for expertise not possessed by the ordinary run of mankind" (R v Lawless [1974] VicRp 49; [1974] VR 398 at 422 - 423) and for that reason the trial judge erred in law by not accepting those opinions. While such arguments might be valid for some cases, this was not one of them. To a great extent, the level of pain and disability suffered by the appellant was a question of fact for the determination of the learned trial judge. Unchallenged objective signs found by experts had to be taken into account by his Honour, and they were, but they did not provide the whole answer.
71 The appellant's counsel pointed to the failure of counsel for the respondents at the trial to put to the appellant's medical witnesses, and the non-medical witnesses who gave evidence of her activities and movements they had observed, that she was feigning her symptoms. Counsel's submission appeared to be that because of that failure the evidence of those witnesses had to be accepted. The submission invoked the rule in Browne v Dunn (1893) 6 R 67 (HL). However, as counsel for the first respondent correctly pointed out, it was an issue plainly raised at the trial, and it was for the learned trial judge to determine whether the appellant had been and was feigning her complaints, and not for the witnesses.
72 So it was submitted that, for example, the evidence of medical witnesses concerning objective signs of injuries that could have caused the appellant to suffer pain had to be accepted by the learned trial judge if that evidence was left unchallenged. But his Honour was not obliged to accept what the appellant said about her suffering, to the Court in evidence, or to the medical witnesses when they examined her.
73 Counsel for the appellant also pointed to the failure of the respondents to call medical witnesses who contravened the opinions of the appellant's medical witnesses. Counsel relied on the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 for the proposition that an unexplained failure by a party to call witnesses may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the defence case. However, the application of the rule to the circumstances of this case could only lead to a conclusion that, if the appellant's statements about her pain and suffering were truthful, the opinions of the medical witnesses had to be accepted.
74 The learned trial judge was faced with a considerable amount of evidence from many witnesses that was relevant to a determination of the appellant's disabilities, pain and suffering. It was received during a trial that extended over many days. The questions concerning those matters, and her medical condition generally, had to be answered from a consideration of not only the evidence of the appellant's expert witnesses, but all the evidence relevant to them. Although the medical witnesses formed their opinions using objective evidence of physical injuries, their opinions were also based on what the appellant told them, and on what she told others, whose reports and records they took into account. It was open to the learned trial judge to give the unchallenged expert evidence as much or as little weight as he thought fit, having regard to his assessment of the extent of the appellant's credibility. He was certainly not obliged simply to accept the opinions of her expert witnesses. Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at par[60].
75 For this case, the role of the tribunal of fact in evaluating expert medical evidence was made clear by the High Court in Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 645, when referring to a jury:
"A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses."
76 Central to the relevant findings of the learned trial judge were those that were adverse to the credit of the appellant and her husband. No ground of appeal attacks them.
77 After an extensive review of evidence, his Honour concluded that the appellant was not a witness upon whose evidence he could rely. He found that she had frequently engaged in obfuscation, prevarication and evasion when confronted with matters which called for explanation. At best, it was clear she was heavily prone to exaggeration and the use of hyperbole to a significant extent, some of it wilful. At worst, his Honour found that in certain key aspects, she had been untruthful in her evidence, and had sought to mislead. As a result, his Honour was not prepared to act on her evidence alone as to any matter.
78 Concerning Mr Partridge, the appellant's husband, who to a large extent corroborated her evidence as to the level of her disabilities, the learned trial judge had doubts about the reliability of his evidence. His Honour concluded that where his evidence accorded with that of the appellant, it should be treated with caution. His Honour noted, however, that some aspects of his evidence revealed a greater degree of mobility than the appellant asserted.
79 We will give a few examples of the appellant's evidence as to her incapacity and level of pain which the learned trial judge did not accept and which assisted to bring about the adverse credit findings. She asserted that because of pain, travelling in a vehicle was very difficult and that it was difficult for her to drive "bar very short distances", and that she had stopped driving herself because of her medication and the requirement to turn and use her legs. She told an occupational therapist, Jane Berger, that she was able to remain seated as a passenger for about 30 to 40 minutes. She asserted that she had not been sailing at all on the yacht on which she had lived since 2004. She also asserted that she could not access a dinghy.
80 The learned trial judge considered a substantial amount of evidence, other than her own, that was relevant to those assertions. There is no need to detail it. It caused his Honour to find that on a number of occasions the appellant had travelled considerable distances in a motor vehicle, some of which exceeded 1,000 kilometres. For example, she and her husband travelled in a car from northern New South Wales to Hobart and return in April 2005. There was evidence that she had stated in cards and letters that she had sailed extensively. There was also evidence that she had accessed and used a dinghy on a number of occasions. The learned trial judge concluded that "the totality of the evidence showed a level of activity quite at odds with the picture the plaintiff wanted this Court to accept".
81 The learned trial judge also had regard to surveillance videos of the appellant's activities on 12 June 2006, 8 and 9 November 2006, and 14 September 2009. His Honour found that her movements on them revealed greater mobility and ease of movement than she claimed. His Honour took into account that the surveillance only related to a few days in the time that had elapsed since the accident, that a person suffering from the effects of an injury has some days which are better than others, and that mobility and effort may be assisted by the use of analgesics. But a consideration of it with the evidence of extended driving trips, and recreational dinghy and general social activity, led to a conclusion by his Honour that her activity depicted in the surveillance evidence, to the extent that it revealed greater mobility and ease of movement than that claimed, was more common and less likely to be the product of a "good day" or the use of effort and analgesics. All of those findings were open on the evidence. We add that some of the appellant's movements, such as squatting and bending, suggested greater mobility than was apparent to some of the medical witnesses.
82 We observe that the learned trial judge did not reject all of the appellant's claims of injuries, incapacity and pain resulting from the negligence of the respondents. We will summarise some of the findings that were made.
83 Concerning the appellant's back, it was found that she suffered an injury consistent with damage to discs at the L4/5 and L5/S1 levels which resulted in pain and discomfort. She had continuing symptoms of pain and limitation of movement which varied in degree of severity. The learned trial judge was not satisfied that they were as severe as she claimed. His Honour was not satisfied that they were sufficient overall to prevent her from the range of activities as she claimed, although it was accepted that there might be times when she was somewhat limited in what she could do, and there were things she was restricted in doing, or should avoid. Specifically, the learned trial judge was not satisfied that her day-to-day domestic and social activities were as restricted as she claimed, and he rejected her evidence as to the extent of restrictions on her ability to travel and to socialise generally. His Honour rejected evidence as to the extent of her immobility; such as difficulties she claimed she had in making her way from her yacht to a marina amenities block, and her general inability to care for herself.
84 The learned trial judge found that the appellant suffered an injury to her right lower leg and knee in the fall, and that she had suffered, and might continue to suffer, symptoms. There was a minor effusion of the knee, at least in September 2003, and degenerative change precipitated by trauma, and some crepitus and laxity in the knee had been found by one of the medical witnesses. The appellant continued to suffer some troubling symptoms from time to time, but overall the level of pain and disability was of no great significance. The injury had caused the knee to give way occasionally and the appellant fell as a result. It was found that attaining a reasonable level of activity and fitness should alleviate the problem.
85 The appellant claimed to have injured her left hand, which is her dominant hand. She said that if she did not use it very much, she experienced no symptoms whatsoever, but if she over-used it, she suffered swelling and tenderness. The learned trial judge did not accept her evidence about those matters, and concluded that the symptoms she had suffered were no greater than a nuisance value. His Honour found no significant disability which impacted on her ability to write or use a keyboard, other than on odd occasions and then only to a limited extent.
86 All of those conclusions were reached by the learned trial judge after an extensive discussion and consideration of the evidence. We are satisfied that they were reasonably open and correctly made.
87 For the reasons we have given, we conclude that the learned trial judge did not err by substituting his own judgment for the opinion of some of the medical witnesses that the appellant suffered a chronic pain condition. Ground 1 fails.
"His Honour erred in determining the amount of general damages His Honour awarded by failing to give adequate weight to the evidence of witnesses who were not cross-examined as to the Appellant's deterioration in self-esteem, personality changes, loss of enjoyment of life and loss of capacity to undertake valued recreational activities after the injuries."
89 The ground raises the question whether the learned trial judge erred by failing to give adequate weight to the evidence to which reference is made.
90 At the outset of our consideration, it should be stated that the learned trial judge expressly referred in his reasons to all of the evidence to which the appellant's counsel referred this Court in support of this ground. In the course of doing so, his Honour made note of the witnesses who were not cross-examined about particular matters. No suggestion was made by the appellant's counsel that the learned trial judge did not make sufficient reference in his reasons to the evidence in question.
91 The witnesses whose evidence was raised by the appellant's counsel when arguing in support of the ground were John McInerney, William Kesby, Sonia O'Brien, Joyce Shulver, Judith Hunter and Frank Bansel. Reference was also made by counsel to the evidence of the appellant's mother, Kathleen Beven.
92 It is unnecessary to relate their evidence. It can be found in the reasons. It suggested that prior to the accident the appellant led a fairly active and gregarious life, but after it she had not been observed undertaking vigorous activities and, to the contrary, she had been observed having a limited mobility, a limited ability to carry weights, and a lowering of her self-esteem. However, it would not have been appropriate for the learned trial judge to determine the extent of the appellant's incapacities and suffering from a consideration of the evidence of those witnesses only. The learned trial judge was obliged to consider a considerable body of other evidence, and his Honour did so. It was discussed at length in the reasons. In the course of that discussion, his Honour referred in particular to most of the witnesses to whom we have referred and noted that their evidence tended to support the appellant's claimed level of disability.
93 It is beyond question that the learned trial judge gave weight to the evidence of those witnesses. It was considered alongside the other evidence, such as the evidence of the medical witnesses, evidence of long distance driving and other activities of the appellant, including those revealed by surveillance evidence.
94 In his conclusions, the learned trial judge referred to the difficulty with which he was faced when determining the proper factual basis on which to proceed. His Honour said it was difficult to ignore the objective clinical signs and the independent evidence which supported a level of impairment and disability of some significance. On the other hand, his Honour referred to material that cogently suggested that the level of impairment and disability was not as great as the appellant asserted.
95 The learned trial judge then made separate findings concerning the appellant's back, right knee and left hand, after saying that he could only make them in general terms. We referred to the findings earlier. It is undoubted that the learned trial judge gave weight to the evidence in question. The appellant has failed to establish that it was inadequate weight. The ground fails.
96 We observe that when arguing the ground, counsel for the appellant did not take the Court to the whole of the evidence and in particular, to the material that suggested, and to the learned trial judge suggested cogently, that the level of the appellant's disability and impairment was not as great as she asserted. In view of that, it is pertinent to refer again to the passage in the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy concerning the duties of an appellate court, which we quoted in par[19] of these reasons.
"His Honour erred in determining the amount for general damages His Honour awarded by not taking into account, or not giving adequate weight to evidence that the Appellant's sexual function and sexual relationship with her husband had been seriously adversely affected and that she had been deterred from seeking and had not sought IVF treatment."
98 There was almost no evidence about sexual function. In the course of being asked in her evidence-in-chief about the issue of IVF being discussed as a result of ectopic pregnancies she had experienced, her counsel ask whether she wished to say something and the appellant said: "I did actually want to say it occurred to me too that another area physically where my life has altered forever is in terms of sexual function and relationship with my husband as well." It was not what her counsel had been asking about and he did not seek amplification. The subject was not raised again. The learned trial judge referred to that passage of evidence in his reasons but made no findings concerning the matter.
99 Counsel for the appellant criticised the learned trial judge for not expressly referring to loss of sexual function in his assessment of damages. However, the vague reference to the matter by the appellant in her evidence-in-chief, with no question from her own counsel to explain what she meant, did not require consideration of it when assessing damages. In simple terms, her remark was left completely unexplained. We add that there was no medical evidence supporting it, nor did her counsel refer the Court to any from her husband.
100 Considering the possibility of IVF treatment, our understanding is that the only evidence about it was a brief passage in the evidence of the appellant. She had mentioned that prior to the accident she had a number of ectopic pregnancies and the issue of IVF was discussed. Asked whether that was ever pursued, she said it had not been because of medical advice she received. However, there was no medical evidence to support a claim that her injuries in the accident were the reason.
101 In written submissions, counsel for the appellant submitted that the award of general damages "should have included significant compensation for the thwarting of the opportunity to have a child". In view of the absence of evidence about the matter, in particular medical verification, there was no merit at all in the submission.
102 However, in oral submissions that position was not maintained. Instead, counsel argued that there was an inconsistency in the treatment of the subject of IVF in the reasons of the learned trial judge, something that we do not accept.
103 Counsel for the appellant pointed to how the learned trial judge dealt with the subject when assessing damages for loss of earning capacity in the period between the accident and the trial. When doing so, his Honour made an estimate of the income the appellant would have earned if she had not been injured. The learned judge considered what discount he should make for the possibility that she might have successfully had a child following IVF procedures. There was nothing inconsistent in that. It was an appropriate course to take because of the appellant's evidence that she wished to have a child, and that such a possibility had been discussed between her and her medical advisors prior to the accident.
Manufactured or exaggerated symptoms (cross-appeals)
105 Each notice of cross-appeal contains a ground in the following terms (ground 5 of the council's notice; ground 8 of Mr Trezise's notice; ground 5 of the landlords' notice):
"The learned trial judge erred in failing to find that the plaintiff consciously manufactured, or at least consciously exaggerated her symptoms for the purposes of gain or other reason unconnected with the tort [261ff]."
106 As mentioned earlier, the respondents conducted their defences upon the bases that the appellant and her husband were not credible witnesses, and that the appellant's evidence of her ongoing pain and disability should not be accepted. The respondents argued that there was little, if anything, wrong with her, and that she was consciously manufacturing, or at least consciously exaggerating, her symptoms for the purposes of gain.
107 In his reasons, the learned trial judge noted all of that. As stated by us earlier, his Honour concluded that the appellant was not a witness upon whose evidence he could rely. He found that she had frequently engaged in obfuscation, prevarication and evasion when confronted with matters which called for explanation. At best, the learned trial judge found it clear that she was heavily prone to exaggeration and the use of hyperbole to a significant extent, some of it wilful. At worst, his Honour found that in certain key respects, she had been untruthful in her evidence, and had sought to mislead.
108 By the ground of appeal, the respondents complain that the learned trial judge erred by failing to go further, and specifically find that the appellant consciously manufactured, or at least consciously exaggerated, her symptoms for the purposes of gain or other reasons unconnected with the tort. We do not accept that the learned trial judge did err in that way, for reasons we will explain.
109 A primary function of the learned trial judge, so far as damages were concerned, was to determine what pain and disability the appellant had suffered, and would continue to suffer, as a consequence of her fall. His Honour was required to make whatever findings he could about those matters, in the context of an onus that rested on the appellant to prove facts on the balance of probabilities. However, the learned trial judge was not required to make positive findings concerning the pain she did not have and the disability she was not suffering.
110 As the learned trial judge made clear, there was objective evidence of injuries which could account for the appellant's claims of pain and incapacity. There was also a body of independent evidence which supported her claims. It is clear that the learned trial judge found that at the very least, she had fabricated or exaggerated many of her symptoms. It was not required of the learned trial judge to determine with precision which claimed symptom was a fabrication, which was an exaggeration, and which did not exist in any event, nor did his Honour attempt to do so. The learned trial judge concluded that all he could do was make "findings in general terms" concerning what symptoms had been proved upon a consideration of all the evidence. The findings concerning pain and disability were necessarily general because of the state of the evidence.
111 The argument of the respondents seems to be that if the learned trial judge had made a positive finding that the appellant consciously manufactured, or at least consciously exaggerated, her symptoms, it would have led to a conclusion that all of her claims were infected and none, or virtually none of them, could be accepted. That does not follow. All of the evidence in the case had to be considered by the learned judge and not only the appellant's evidence and her credibility.
112 There was no error in what his Honour did. The ground fails.
Adequacy of award for general damages (ground 7)
113 Ground 7 of the appellant's notice of appeal asserts that the learned trial judge erred by awarding her "a manifestly inadequate amount for general damages". This ground relates to the award of $40,000 for pain and suffering and loss of amenities.
114 This Court is required to determine the adequacy or otherwise of that award by reference to the findings of the learned trial judge that relate to the appellant's pain, suffering and loss of amenities. That is because all the grounds of appeal and cross-appeal relating to that award have failed, and because there is no reason for this Court to make its own findings, in substitution for those of the learned trial judge, in relation to any issue relevant to this ground.
115 The learned trial judge did not make very detailed findings as to the pain, suffering or incapacity of the appellant. We have summarised his principal findings as to her back, knee and hand injuries in pars[83] - [85] above. It is evident that he did not make more specific findings because, having rejected much of her evidence, he was simply not able to be more specific.
116 Some of his findings in relation to claims for special damages and future expenses are relevant to this ground. At par[308] of his reasons, he concluded that it was reasonable to make some allowance for domestic care provided by a cleaner for three hours per week, but only for 12 months. At pars[310] and [314], he accepted that certain medical, counselling and pharmaceutical expenses were reasonable. At par[312] he accepted that the appellant's knee might deteriorate to such an extent that an arthroscopy would reasonably be needed, and that her back condition might deteriorate to such an extent that lumbar fusion surgery might be needed, but not that facet block procedures might be needed. The sums awarded in respect of a possible arthroscopy and a possible lumbar fusion procedure indicate that he thought the chance that each of those procedures would be needed was less than 50%. In par[313] he concluded that some allowance should be made for future physiotherapy costs following an arthroscopic debridement of the knee. In par[317] he concluded that it was reasonable for the appellant to be provided with a TENS machine and various less expensive items of equipment. At pars[318] and [319] he concluded that it was reasonable to make allowance for gymnasium expenses and related travelling expenses. The award in respect of gymnasium expenses has been challenged in each cross-appeal, but only on the basis that the amount awarded was excessive.
117 His Honour dealt with this head of damage in par[335] of his reasons, which reads as follows:
"335 I see no need to revisit the relevant evidence. I think I have sufficiently summed up earlier in these reasons the plaintiff's situation as I view it. I accept that she has had a back injury of moderate severity and that she suffers pain and discomfort to a varying extent. There was a need for various treatment regimes for about two years, and there is an ongoing need for analgesic use. The plaintiff also has difficulties with her knee, although that is of far less significance, and whatever symptoms remain from her hand injury, are of nuisance value only. She will continue to suffer to one degree or another in the foreseeable future, but I do not accept that her level of pain and suffering, and the loss of amenities of life have been and will be as she suggests. I am required to have regard to the proportionality of the sum awarded to the plaintiff's injuries and their consequences, and the sum awarded must be fair and reasonable compensation for those injuries: Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 at 188. I allow $40,000."
118 The principles applicable to the assessment of damages for injuries and disabilities, and to the determination of appeals concerning such assessments, were stated by the High Court in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 at 124 - 125 as follows:
"It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. ... The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party ... What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand."
119 Counsel for the appellant referred us to a number of personal injury cases in Tasmania and other Australian jurisdictions, arguing that each of them was comparable with this case, in an attempt to persuade us that the award of $40,000 was inadequate. He relied on the Civil Liability Act 2002, s28, which provides as follows:
"(1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.
(2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non-economic loss in those earlier decisions."
120 That section was introduced by the Civil Liability Amendment Act 2003, s12 of which provides as follows:
"The amendments made by this Act do not apply to a cause of action accrued before the commencement of this Act."
121 By virtue of s2 of that Act, it commenced on the day when it received the Royal Assent. That day was 4 July 2003, more than 12 months after the appellant's accident. Her counsel knew all that, but argued that the enactment of s28 had modified the common law. They argued that the principles discussed by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at pars[19] - [28] were applicable.
122 We see no need to spend any time considering that submission. If it is correct, which we very much doubt, then a court considering what award is appropriate for damages for non-economic loss may either refer to its earlier decisions or those of other courts, or choose not to do so. The learned trial judge did not refer in his lengthy and thorough reasons to earlier awards of damages in Tasmania or elsewhere. That is no indication of error, even if s28 was somehow applicable. There is nothing to suggest that he failed to "be aware of and give weight to current general ideas of fairness and moderation". In our view all of the cases relied on by counsel for the parties to this appeal in relation to the quantum of damages for non-economic loss turned on their own facts, and no purpose would be served in undertaking a comparison between the facts of this case and the facts of any other cases.
123 Having regard to the findings of the learned trial judge, and applying the principles discussed in Planet Fisheries, we consider that the award of $40,000 under this head by the learned trial judge was low by Tasmanian standards, and probably very low by the standards of some comparable Australian jurisdictions. However we do not consider that it was so low as to be disproportionate to the pain, suffering and loss of amenities suffered by the appellant. Ground 7 must fail.
Impairment of past earning capacity - introduction
124 The appellant claimed damages for the loss of her earning capacity on the basis that, but for her injuries, she would have continued to operate the Tingletree business indefinitely, possibly well beyond the age of 65. She contended that her earning capacity had been destroyed, with the result that, apart from her ability to earn an income from Tingletree between her fall and the sale of that business, she had no earning capacity, and would never again have any earning capacity.
125 Her claim for damages for past loss of earnings was quantified by reference to her taxable income over the four years before the fall, adjusted for inflation. Essentially the claim, as particularised, was framed as follows:
126 The learned trial judge used these calculations as a starting point, but assessed the appellant's damages for past economic loss at only $100,000. His reasoning can be summarised as follows:
127 Every party to this appeal contends that the learned trial judge made errors in the reasoning process that led to the assessment of $100,000 in respect of past economic loss. The appellant's relevant grounds of appeal raise the following contentions:
128 The appellant's ground 6B asserts that errors made in the assessment of damages for past and future economic loss resulted in an erroneous assessment of damages for the loss of superannuation entitlements. We will deal with that ground after we have dealt with all the other grounds relating to past and future economic loss.
129 Each notice of cross-appeal contains only one ground relevant to the assessment of $100,000 for past economic loss. It is convenient to deal with that ground next, as it relates to the first stage in the calculations. It concerns income from dividends.
Unearned income (ground 1A of each cross-appeal)
130 This ground asserts that the learned trial judge erred in basing his assessment of damages for past economic loss on a figure of $59,923 per annum gross, "because the calculation of that amount included unearned income of the Appellant comprising share dividends".
131 There was no evidence that the appellant received any dividends in the 1999 and 2000 tax years. However her income tax returns show that she received dividends from Tingletree in each of the following two years. The relevant figures are as follows:
132 If the dividends were excluded for the purpose of calculating the appellant's average annual earnings, the figure of $59,923 per annum would have to be reduced to $49,508 per annum - a reduction of about 17.4%.
133 But it is not as simple as that. Tingletree Enterprises Pty Ltd was controlled by the appellant and her mother. The appellant gave evidence that she was the "major shareholder". Her mother was the only other shareholder. They were both directors of the company. They decided, with advice from an accountant, Mr Wallace, what income they would receive from the company by way of wages, and what income they would receive from it by way of dividends. On occasions they drew money from the company in addition to their wages, creating loan account debts. The appellant gave evidence to the effect that she and all the staff were paid award wages, with her wages being paid at the appropriate rate for a children's services director of three years' experience. To the extent that she received dividends in addition to her wages, it must be appropriate to treat those dividends, at least in part, as having been generated by her use of entrepreneurial and managerial skills.
134 It is necessary to consider whether the dividends should be regarded, at least in part, as representing a return on capital. Copies of the company's annual financial statements for all relevant years were before the learned trial judge. They were not referred to by counsel in relation to this ground.
135 The company's balance sheet as at 30 June 1998 shows that, as at that date, its liabilities exceeded its assets by $14,690. That balance sheet also shows that, as at that date, the appellant owed the company $33,616, and that the company owed her $295. Plainly she had no capital invested in the company at that time.
136 The balance sheet for 30 June 2002 shows that, as at that date, the company's assets exceeded its liabilities by $108. One of the assets was an unsecured loan debt owing by the appellant to the company in the sum of $33,616. The company did not owe her anything. Plainly she did not have any capital invested in the company at that time either.
137 In the four years between 30 June 1998 and 30 June 2002, there were times when the company's assets exceeded its liabilities. However, having regard to the annual financial statements, that appears most likely to have been a consequence of the company retaining some of its profits from one financial year to the next, rather than distributing practically all of its profits in the form of dividends to the two shareholders before year end. Whilst the dividend information in the appellant's tax returns tends to suggest the possibility that some of her income from the company represented a return on capital, the more detailed information in the annual financial statements paints precisely the opposite picture.
138 Following the sale of the business in September 2003, the company was wound up. In a letter to the appellant's solicitors dated 24 August 2004, Mr Wallace summarised what then remained to be done, as follows:
"The anticipated final liquidator distributions from retained profits and capital reserves will be used to extinguish remaining debt owed by Moira [the appellant] to the company of approximately $20,700. It is expected that Moira will receive a final distribution of cash of approximately $2,000; and a return of capital of $50."
That letter tends to confirm that the appellant had little or no capital invested in the company.
139 The evidence falls short of establishing that there was any significant amount of "unearned income". Ground 1A must fail.
140 As we have said, the appellant claimed $303,861 for lost earnings to the end of December 2009, before any reduction in respect of her heart attack in May 2005 and the possibility that she might have had a child, and the learned trial judge undertook a calculation by which he updated that figure to "approximately $356,890" as at the date of his judgment. This ground asserts that he erred in the way he allowed for income tax when undertaking that updating calculation as a result of failing to "take account of and apply" a withholding schedule published by the Australian Taxation Office that set out the weekly "Pay As You Go" deductions required to be withheld by employers from employees' weekly earnings as from 1 July 2010. The corresponding schedules for the years commencing 1 July 2000 and 2003 to 2009 inclusive were exhibits at the trial.
141 Counsel for the appellant submitted that, if the schedule that applied with effect from 1 July 2010 had been taken into account, a correct calculation would have produced a figure of $360,367, which is $3,477 greater than his Honour's figure of $356,890. Counsel argued that this was an error that should be corrected by applying a proportionate increase to his Honour's assessed figure of $100,000 in respect of past economic loss, and that that would result in a figure of $100,974.
142 Although counsel's calculations based on the July 2010 schedule are arithmetically correct, we think it is clear that counsel's submission must be rejected. The methodology adopted for counsel's calculations, based on the July 2010 schedule, produced a result less than 1% greater than the methodology adopted by the learned trial judge. His Honour used precise calculations, based on a number of hypotheses and assumptions, as a starting point for the purpose of estimating something that was incapable of precise calculation - the amount required to compensate the appellant for the impairment of her earning capacity up to the date of judgment, taking into account the earning capacity that she would have had if uninjured, the likely extent to which she would have exploited that earning capacity, and the extent of her residual earning capacity. We are not persuaded that, as a result of his Honour not undertaking the same calculation as counsel for the appellant, the sum assessed in respect of the past impairment of the appellant's earning capacity was inadequate. Given that his Honour took a broad brush approach when making allowance for possible absences from the workforce and the appellant's residual earning capacity, we think it most likely that, even if he had undertaken the same calculation as counsel for the appellant, he would still have assessed damages under this head in the sum of $100,000. That is to say, if his Honour did err by not undertaking a calculation based on the July 2010 schedule, we are not satisfied that any such error was of any consequence.
143 The July 2010 schedule was a withholding schedule made by the Commissioner of Taxation pursuant to the Taxation Administration Act 1953 (Cth), Sch1, s15-25. When making such a schedule, the Commissioner is required by s15-30(a) and (b) to have regard to the applicable rates of income tax and of Medicare levy, amongst other things. However it is open to the Commissioner to fix rates of withholding deductions that differ to some degree from the applicable rates of income tax and Medicare levy. The learned trial judge was not obliged to have regard to the Commissioner's withholding schedule, but was entitled to undertake calculations based upon the applicable rates of tax and levy fixed by the Income Tax Rates Act 1986 (Cth) and the Medicare Levy Act 1986 (Cth). Ground 1A asserts that his Honour erred by "failing to take account of and apply" the applicable withholding schedule. Since it was open to him to take the alternative course of basing his calculations on the legislation, he was not obliged to "take account of and apply" the relevant withholding schedule. For these reasons, ground 3A must fail.
Possibility of the appellant having a child (ground 2)
144 As we have said, the learned trial judge, in assessing damages for past economic loss, took into account the possibility that the appellant would have had a child during the years between her fall and his judgment, but ground 2 asserts that he erred in taking that possibility into account when the evidence established that she had not had a child.
145 This ground does not assert that the learned judge gave excessive weight to the possibility that the appellant would have had a child, or that he reduced her damages to too great an extent when allowing for that possibility and its impact on her earnings. It asserts that his Honour should not have taken into account that possibility when assessing damages for past economic loss, and that he erred in taking it into account at all. Senior counsel for the appellant submitted to us that the possibility of her having a child was "towards the edge of fanciful". However that possibility was one of the factors that was taken into account in the appellant's particulars when her claim for damages for past economic loss was reduced by $4,582. As counsel for the landlords observed in his written outline of submissions, the appellant sought to present a different case on appeal in this respect.
146 A number of pieces of evidence are relevant to this ground. The appellant was 40 years old at the time of her fall (not 41 as asserted by her counsel in their written submissions). She had a history of gynaecological problems. She said she had had three ectopic pregnancies. Her mother gave evidence that she had had a miscarriage. The appellant gave evidence that she had been discussing IVF treatment with her doctors before her fall, but that she received medical advice after her fall that she was no longer suitable for IVF treatment, and that she should not proceed with a pregnancy. The learned trial judge accepted that she keenly wanted to have children. That finding is not challenged by the appellant. There was no evidence that she could not have become pregnant without IVF treatment.
147 That being the state of the evidence, it was open to the learned trial judge to take into account the possibility that, if she had not been injured, the appellant might have borne at least one child and, as a result, taken time out of the workforce, with the result that her earnings and/or her Tingletree dividends would have been reduced. That is what he did. Counsel for the appellant argued that, because of her role in the ownership and management of Tingletree, her absence from the workplace would have been minimal, and that her income stream would not have been interrupted. However the learned trial judge was entitled to take into account the possibility that her absence from the workforce would have been more than minimal, and that her income would have been affected. Ground 2 must fail.
Discounting of damages for past economic loss (ground 3)
"His Honour erred by applying manifestly too great a discount rate [sic] in respect of the past component of the Appellant's claim for damages for loss of earning capacity."
149 It appears that the words "discount rate" in this ground were intended to refer to the reduction from the figure of "approximately $356,890", which was his Honour's estimate of what the appellant would have earned after tax if she had continued to work without interruption from the day of her accident to the date of judgment, to the figure of $100,000 awarded for past economic loss. In one sense, that reduction amounted to a "discount" of over 72% (not 78% as asserted by counsel for the appellant in their written submissions). This ground asserts that that reduction was too great.
150 As we have said, the learned trial judge estimated that the appellant would have earned approximately $200,000 after tax up to the date of his judgment if she had not been injured. The reasoning that led him to that figure, in pars[302] and [303] of his reasons, was as follows:
"302 As to the past aspect of the claim, I am not satisfied that but for the injury the plaintiff would have worked for the entire period. In addition to a greater period away from work due to the heart surgery and the possibility of child bearing and care (for say one child), there is a high degree of likelihood the plaintiff would have chosen not to work at all, or on a part time basis, or a combination. A significant period of time would have been involved. As I have found, it is at least highly likely that the business would have been sold in a few years in any event, and the choice made to move interstate to pursue a lifestyle centred on the yacht and sailing activities.
151 It should be noted that, to make allowance for factors affecting the appellant's participation in the workforce, his Honour made a reduction from approximately $356,890 to approximately $200,000 - a reduction of about 44%. Counsel for the appellant argued that this was too great a reduction.
152 The appellant gave evidence that in May 2005 she experienced chest pain, and underwent open heart surgery. She said that her recovery from that surgery took 2½ to 3 months "at the outside". She said she was taken back to hospital about three months after the heart operation, that her gall bladder was removed, and that she physically recovered from that surgery after about 48 hours. Two reports by the appellant's cardiologist, Mr Gandhi, were tendered as exhibits. He did not contradict anything she said about the duration of her unfitness for work. He said that there was no reason why she could not continue to pursue her usual occupation.
153 There is no suggestion that the learned trial judge disbelieved the appellant in relation to her unfitness for work after the heart operation. This was a minor factor. There is nothing in his Honour's reasons to suggest that he attached undue weight to it.
154 Counsel for the appellant relied on the submissions made in relation to ground 2, to the effect that the possibility of the appellant having a child was "towards the edge of fanciful". It is clear that the learned trial judge took a different view. He referred to the allowance made in the particulars for three months away from work to take into account both the heart attack and the possibility of the appellant having a child. At par[295] of his reasons, his Honour said this:
"295 Returning to the plaintiff's treatment of the past component, the allowance for the possibility of time out of the workforce due to child bearing must be significantly greater. Allowance must be made for the IVF treatment itself. The plaintiff's age must be borne in mind, and on more than one occasion the plaintiff spoke of having 'children'."
155 The conclusions expressed in that passage were reasonably open to his Honour on the evidence. There is no reason why we should take a different view. His Honour did not quantify in any way the allowance that he made in respect of time away from work or reduced working hours relating to child bearing and children. He was not obliged to.
Sale of Tingletree and unemployment or underemployment
156 The appellant gave evidence that, before her accident, she never considered retirement, and expected to be able to continue her involvement with Tingletree for the foreseeable future. She referred to the fact that her mother came to work with her at Tingletree when she was 60, and continued work there after the sale of the business until she retired at or about the age of 74. She gave evidence that she did not ever consider selling the business before the accident, and that it meant "a security of employment and earnings" for her until "well beyond retirement age". Her counsel submitted to us that the learned trial judge should have accepted that evidence and assessed damages on the basis that she would still have been running the business as at the date of judgment. It was argued that his Honour erred in assessing damages for past economic loss on a different basis because the appellant's evidence as to her intentions was unshaken by cross-examination, and that she was adamant as to what she would have done if she had not been injured. In making those submissions, her counsel seemed to overlook all of the case law as to the principles that must be applied by an appellate court in an appeal involving challenges to findings of fact made by a trial judge.
157 There was a body of evidence that suggested that, if the appellant had not been injured, there was a substantial chance that she would have sold the business at some stage prior to the date of the judgment, and thereafter not fully exploited her earning capacity. There was evidence, which the learned trial judge took into account, that she had been seeing a psychologist, Mr Hamer, and that twice before her accident she discussed with him ideas of selling the business, living on a boat, working in a childcare centre or as a relief teacher in a primary school, and her husband having much more work and being happier. There was evidence from Tingletree's accountant, Mr Wallace of KPMG, to the effect that Tingletree was not a profitable business in the 2002 and 2003 tax years, that it had an increasing shortage of operating cash, that economic conditions changed significantly from year to year, and that childcare centres operated in a competitive market. There was evidence that the appellant had serious discussions about proposals for the sale of the business prior to her accident. There was also evidence that those discussions did not result in a sale, and that Mr Hamer did not believe that the appellant would have sold the business. His Honour took all of that evidence into account. His Honour disbelieved the appellant's evidence as to her intentions, and assessed damages on the basis that it was highly likely that the business would have been sold within a few years after the date of the accident, and that the appellant would not thereafter have fully exploited her earning capacity. It was open to him to make such findings and to assess damages accordingly.
158 The appellant gave uncontroversial evidence to the effect that, not long before her fall, a decision had been made to expand the business, and she had obtained the first licence issued in Tasmania permitting a childcare centre to be operated on a 24 hours per day basis. Counsel for the appellant submitted that this evidence was inconsistent with the appellant having planned to sell the business. However it is not just a question of what, if anything, she was planning. The learned trial judge was required to consider whether there was a significant chance of the business being sold and, if so, the strength of that chance. Those matters are not dependent upon the sale of the business having been something that was planned, or even considered, before the appellant was injured. Furthermore, there is no inconsistency between a business proprietor building up his or her business and the likelihood of it soon being sold. Sometimes the building up of a business makes it more attractive to prospective purchasers. Sometimes there are good reasons for a vendor to sell when a business is on the way up, rather than on the way down or stagnating.
159 The appellant was the primary income earner for her household. Without her income from the business, she and her husband would have needed an income from somewhere. Her counsel submitted that, because of those facts, the learned trial judge ought to have found that, even if the business was sold, the likelihood was that within 12 months the appellant would have resumed gainful employment as the sole breadwinner for her family. However it is clear that his Honour was alert to the couple's need for an income. In the part of par[303] of his reasons quoted above, he referred to the lack of evidence that they had savings or independent wealth. His Honour made a finding that, in the event of the sale of the business, the couple's income would have been supplemented by income earned by the appellant's husband. That finding was open to his Honour and is unchallenged. The appellant's husband had a capacity to earn income as a professional musician and music teacher. It was open to him to assess damages on the basis of a likelihood that, for a substantial part of the time between the accident and the judgment, the appellant would not have been exploiting her earning capacity fully or at all.
160 Counsel for the appellant argued that it was inconsistent and therefore impermissible for the learned trial judge to discount the damages for past economic loss to allow for both an absence from the workforce associated with child bearing and an absence from the workforce associated with the sale of the business and lifestyle changes. We reject that argument. Taking both possibilities into account involved no inconsistency. It was necessary for the learned trial judge to make allowance for both contingencies. That is what he did.
161 In assessing damages for past economic loss, the learned trial judge did not make any mistake as to the evidence before him, did not make any finding that was not reasonably open to him, and did not proceed upon any wrong principle. The reduction from $356,890 to $200,000 to allow for contingencies in relation to the appellant's exploitation of her earning capacity was very substantial but, in our view, having regard to the evidence and his Honour's findings, not so substantial as to indicate some otherwise undetectable error. That is to say, the figure of $200,000 cannot be said to be unreasonably low. It has not been suggested that the amount attributed to the appellant's residual earning capacity, namely $100,000, was too high. The appellant's actual earnings from 1 July 2002 until the sale of the business amounted to $74,725. That figure includes a redundancy payment. If one deducts that figure from the residual earning capacity figure of $100,000, that leaves a balance of $25,275 in respect of the period from the sale of the business to the date of the judgment - a period of over seven years. It clearly cannot be said that his Honour placed too high a figure on the appellant's pre-judgment residual earning capacity.
162 For these reasons, we conclude that the discounting of the appellant's claim for damages for the impairment of her past earning capacity was not excessive. Ground 3 must fail.
163 The learned trial judge assessed damages for the appellant's future economic loss on the basis that, but for her injuries, she would have been able to earn an estimated $1,108 per week after tax at the time of judgment. He assessed her damages for future economic loss in the sum of $168,000, before adjustments, using the following methodology:
164 Every party to this appeal contends that the learned trial judge made errors in the reasoning process that led to the assessment of $168,000 in respect of future economic loss. The appellant's relevant grounds of appeal raise the following contentions:
165 Each of the respondents has relied on cross-appeal grounds that raise the following contentions:
166 We will deal with the parties' various grounds in an order appropriate to the reasoning process of the learned trial judge: first with the grounds relating to the figure of $1,108 per week, then with the grounds relating to the 35% discount, then with the ground relating to a possible further disc protrusion, since that ground relates to the appellant's residual earning capacity, and finally with the ground relating to social security benefits. Thereafter we will deal with the appellant's ground 6B, which asserts that errors relating to the assessment of damages for past and future economic loss resulted in an erroneous assessment of damages for the loss of superannuation entitlements.
Calculations based on four years' average earnings
167 As we have said, the learned trial judge calculated the figure of $1,108 per week by averaging the appellant's annual earnings for the four years ending 30 June 2002, applying annual CPI increases, and deducting income tax. The respondents contend that this methodology was erroneous, and that it resulted in an erroneous assessment of damages for future economic loss, though not for past economic loss. It was submitted by counsel for the landlords that a different approach should have been taken because of the following matters:
168 It was submitted that, because of these matters, it should be assumed that the appellant would have continued to use her earning capacity only to the extent of about half her full-time capacity, and that the appropriate starting point was therefore a rate of $554 per week, being half of $1,108 per week.
169 It was not contrary to principle for the learned trial judge to estimate the appellant's hypothetical earnings by averaging her earnings for the four years before her accident, deducting income tax, and making an adjustment to allow for inflation. In fact that methodology was very appropriate, given that part of one year's profits would sometimes be retained by the company and then paid out by way of dividends in a later year, and given that the profitability of the business varied from year to year. The council's and the landlords' ground 1 and Mr Trezise's ground 4 must therefore fail. The respondents' real complaint is not with this methodology, but with the extent of the reduction to allow for contingencies, particularly voluntary unemployment and/or underemployment.
170 Ground 1B(a) of each amended notice of cross-appeal asserts that the learned trial judge erred by taking into account "unearned income" of the appellant from dividends. This is the same argument that was raised by ground 1A of each cross-appeal in relation to past economic loss. For the reasons stated above in relation to ground 1A, ground 1B(a) of each cross-appeal must fail.
171 There was unchallenged evidence that the appellant drew wages from Tingletree that were based on the Childcare and Children's Service Award. The exhibits before the learned trial judge included documents which set out the wage increases under that award over the years up to the trial. It was submitted on behalf of the respondents that, because the appellant received wages under that award, the learned trial judge should have allowed for inflation by reference to the relevant award increases, not the CPI.
172 Counsel for the landlords provided us with a table setting out calculations based on the award increases. That table showed that, as at the date of the judgment, the appellant would have been earning $890 per week after tax, not $1,108. However that calculation was based on a gross annual salary of $49,508 as at 1 July 2002. That was the appellant's average annual income from wages, excluding dividends, over the previous four years. If the dividends were counted in, the starting point would have been an annual gross income of $59,923, and the final figure would have been much closer to $1,108 per week.
173 The appellant's earnings from the business depended on its profitability, and would not have remained proportionate to the salary for a particular category of employee. Her damages for future economic loss had to be measured by reference to the earning capacity that she would have had if uninjured. It was reasonable for the learned trial judge to have regard to movements in the CPI for the purpose of making allowance for inflation. No particular methodology was required for the purpose of allowing for inflation. It follows that the use of the evidence relating to the CPI, rather than the evidence relating to award increases, involved no error. Count 1B(b) of the cross-appeals must fail.
174 The appellant's ground 6A asserts that the learned trial judge erred in the assessment of future economic loss by failing to take into account the Commissioner of Taxation's July 2010 withholding schedules. As we said when dealing with ground 3A, which raised the same contention in relation to past economic loss, it was open to his Honour to base his calculations on the applicable rates of income tax and Medicare levy fixed by the Income Tax Rates Act and the Medicare Levy Act. He was not obliged to have regard to the withholding schedules at all. Ground 6A must therefore fail.
Calculation based on earnings to the age of 70 years
175 Each cross-appeal includes a ground asserting that the learned trial judge erred "in basing the claim for future lost earning capacity on a net weekly rate of $1,108 to age 70". Although the age of 70 years was referred to in this ground, it has not been suggested that the learned trial judge erred in undertaking calculations on the assumption that the appellant might work until her 70th birthday, rather than some earlier date, and then undertaking a discounting process to allow for contingencies such as early retirement, unemployment, or part-time work. The submissions made in support of this ground related only to the figure of $1,108 per week. In the light of the appellant's evidence about having originally intended to work beyond ordinary retirement age, the undertaking of calculations by reference to hypothetical retirement at age 70 is no indication of error. The council's and the landlords' ground 2 and Mr Trezise's ground 5, like all of the other grounds relating to the figure of $1,108 per week, must fail.
176 When he calculated the amount required to provide the appellant with an income of $1,108 per week to age 70, the learned trial judge used a multiplier that made no allowance for mortality. That calculation gave a figure of $645,740 which his Honour used as a starting point. He discounted that amount by 35% to allow for three things:
177 The appellant contends that the learned trial judge erred in discounting by 35% because that discount was too large. The respondents contend that he erred because the discount was inadequate.
178 It is a common, though not invariable, practice in Tasmania to discount damages for future economic loss by 15% to allow for several adverse contingencies that might affect a plaintiff's earning capacity, namely mortality, sickness, accident, industrial disputes, unemployment and underemployment. Evans J undertook an analysis of the appropriate percentage discount for the various contingencies in McLennan v Luttrell [2006] TASSC 44 at pars[36] - [43] and reached a conclusion to the effect that the usual discount was more than adequate, without suggesting that trial judges should apply smaller discounts in the future. The learned trial judge referred to that judgment, and proceeded on the basis that he accepted that there was a "usual" discount of 15% for the major contingencies.
179 Counsel for the appellant submitted to us that the usual discount of 15% in an ordinary case is too high. In their written submissions, they submitted that the learned trial judge should have adopted as a starting point a usual discount of no more than 10%.
180 Counsel for the appellant relied on Luntz Assessment of Damages for Personal Injury and Death, 4th ed, (2002) at [6.4]. Professor Luntz reviewed the available statistics and concluded, at par6.4.14, as follows:
"To sum up, a reasonable allowance in the average case of a person in regular employment for contingencies other than death causing loss of income, after taking into account sick leave, social security and other benefits, appears to be less than 5.5%, being at most 0.4% for sickness, injury and unpaid holidays; at most 0.1% for industrial disputes; and at most 5% for reduction of income consequent on unemployment."
181 In Kember v Thackrah [2000] WASCA 198 at par[13], Malcolm CJ said that the standard rate of discount for contingencies in Western Australia had been in the vicinity of 2% to 6%. In De Sales v Ingrilli (2002) 212 CLR 338 at par[99], McHugh J said the following:
"In Western Australia, the figure for general contingencies is about 5 per cent in a claim for damages for personal injury and, as the present appeal shows, 5 per cent in a claim for damages for wrongful death. In New South Wales, the conventional discount for general contingencies is 15 per cent in personal injury claims. Some years ago I was a party to the reasons in a special leave application which stated that there was 'no reason to doubt the correctness' of a 15 per cent discount for the vicissitudes of life. Further reflection on statistics concerning unemployment and the payment of social services and workers' compensation, however, now makes me think that the figure of 15 per cent is too high - at least for low to middle income workers. And the Western Australian figure, although probably too low, may just be within the appropriate range in personal injury claims, particularly where the actuarial figures or tables used to calculate the present value of lost earnings allow for death." [Footnotes omitted.]
182 It may be that a customary discount of 15% is too high. If that is so, it does not follow that his Honour's figure of 35% was too high. Whilst his Honour acknowledged that there was a customary discount, and can only have been referring to the Tasmanian customary discount of 15%, his reference to McLennan v Luttrell (above) makes it clear that he was well aware that, according to the available statistical information, a discount of that size is greater than adequate in an ordinary case. Being aware of that, he may well have chosen a percentage that he considered appropriate to the facts of the case before him, remaining conscious that a 15% discount tends to be generous to the defendant in an ordinary case.
183 In McLennan v Luttrell, Evans J was able to calculate with precision a percentage adjustment to allow for mortality because he had available to him two sets of discount tables, one allowing for mortality and one not allowing for it. In this case, it has not been possible to undertake a similar calculation because the learned trial judge assessed damages by reference to the loss of a particular weekly sum to age 70, and discount tables allowing for mortality relating to losses ceasing at age 70 have not been made available.
184 Another complication is that Professor Luntz's figures treat social security benefits in the same way as workers compensation payments for the purpose of measuring losses of income resulting from sickness, accident, unemployment and so forth. However, as will be seen when we reach ground 4, we have concluded that social security benefits should be ignored for the purposes of assessing damages for economic loss. In this case we need not decide whether they should be ignored in this context. Ignoring them would produce a higher discount percentage than that suggested by Professor Luntz.
185 The learned trial judge took into account the appellant's coronary disease. In assessing damages for future economic loss he said, at par[304] of his reasons:
"... it is reasonably possible that the plaintiff's coronary disease would have manifested itself at some time in the future. Of itself this would interrupt the plaintiff's working life and may impact on the age of retirement."
186 Earlier in his reasons, at par[294], his Honour said the following as to the appellant's prognosis:
"294 According to Dr Ghandi the plaintiff was diagnosed as having 'cardiac disease', which is incurable. In terms of the future, whilst Dr Gandhi said that he did not believe the plaintiff's heart problems would make her unable to pursue any business, he agreed with the view that it was possible that the plaintiff would develop further symptoms of heart disease at some time in the future 'but with intense risk factor modification and appropriate medications her outlook is generally very good'. He agreed that in the context of that comment, the plaintiff should stop smoking. He said that she admitted to drinking excessively and seemed to agree that this should also cease in the interests of her health. The plaintiff still smokes cigarettes to varying extents; up to one packet each day."
187 The appellant was a 49-year-old smoker with heart disease, who had had a triple by-pass procedure and still not given up smoking. It was appropriate for his Honour, on that basis alone, to make a greater reduction for contingencies than should be made in an ordinary case.
188 This was the most significant contingency that his Honour had to take into account. Counsel for the appellant submitted that damages should have been assessed on the basis of an acceptance of her evidence of an intention to continue operating Tingletree until well after retirement age. We have already rejected that proposition in dealing with ground 3.
189 At par[304] of his reasons, the learned trial judge said this:
"304 In terms of the future component, as a starting point I do not think it is very likely that the plaintiff would have worked to age 70. I note that the pension age for the plaintiff is 67. More particularly, I act on the basis of my findings as to the degree of likelihood as to the sale of the business and the lifestyle which the plaintiff would have pursued. However, I recognise the need for an income."
190 The appellant's pension age is fixed at 67 years by the Social Security Act 1991 (Cth), s23(5D). That is the age when, subject to her means, she will become entitled to an age pension. The relevance of that is that, if she had not been injured, the availability of an age pension at that age might have been a significant incentive for her to have retired, or for her to have reduced her working hours.
191 Counsel for the appellant submitted, in their written submissions, that the trial judge "erred by failing to take into account the practical necessity for the Appellant to continue to work". His Honour made no such error. He said in the passage quoted above that he recognised the need for an income. That income did not necessarily have to come solely from the appellant. Her husband was capable of earning money. One possibility was that, at least at times, he would have been the sole or primary income earner.
192 The learned trial judge's findings as to the likelihood of the sale of the business, the likely lifestyle that the appellant would have pursued, and the unlikelihood of her working to age 70 were all reasonably open to him, and are unimpeachable.
The respondents' contention that a 35% reduction was inadequate
193 Counsel for the landlords made submissions, which the other respondents also relied on, to the effect that the 35% discount for the relevant contingencies was so inadequate as to involve appealable error. Essentially he argued that the learned trial judge, in assessing damages for past economic loss, made a finding to the effect that, if the appellant had not been injured, she would have sold the business and would, by the time of the trial, have been utilising only about half of her full earning capacity; that damages for future economic loss should therefore have been assessed on the basis that the appellant would not, after the date of judgment, have exploited more than about half of her earning capacity; and that that factor alone warranted a discount of about 50%. On that basis, it was argued that the reduction of 35% was inconsistent with the facts as found.
194 The finding relied on as the basis for this argument was in par[303] of the learned trial judge's reasons. The submission in question was based on a misunderstanding of that finding. His Honour's words were, "I think it is likely that the plaintiff would have worked to the equivalent of a full time capacity for no more than about half the period which has elapsed since the sale of the business." Plainly he meant that the appellant would not have fully exploited her earning capacity for more than about half of the period from the actual date of the sale of the business in September 2003 to the date of judgment in December 2011. He was not saying anything about the extent to which, if she had not been injured, she would have exploited her earning capacity after ceasing to exploit it fully. The submission was based on a false premise and must therefore be rejected.
195 The reasoning that led to the reduction of 35% was not based on any mistake as to the evidence, nor on any finding that was not reasonably open, nor on any wrong application of principle. In our view it cannot be said that such a reduction was too great or too small in the circumstances of this particular case. The council's and the landlords' ground 3, Mr Trezise's ground 6, and the appellant's ground 6, insofar as it relates to the 35% reduction, must fail. In their submissions, counsel for the appellant treated ground 6 as relating in part to the allowance made by the learned trial judge, when assessing for future economic loss, in respect of the appellant's residual earning capacity. That is an aspect of the assessment of damages that we have yet to deal with.
Possibility of further disc protrusion (ground 5)
"His Honour erred in determining the discount rate [sic] His Honour applied in respect of the future component of Appellant's claim for damages for loss of earning capacity by failing to take into account, or not giving sufficient weight to, the possibility of the Appellant suffering further disc protrusion with severe consequences."
197 This ground relates to the reduction of 60% - from $419,731 to $168,000 - that his Honour made to allow for the appellant's residual earning capacity and the possibility of future social security benefits. It involves an assertion that his Honour overlooked the possibility of a further disc injury; that he consequently overestimated the appellant's residual earning capacity; and that the 60% reduction was therefore too big.
198 At par[305] of his reasons, his Honour said this:
"305 As to the plaintiff's retained earning capacity, I accept that to an extent she would be at a disadvantage in the labour market. I take into account the reasonable possibility that the plaintiff's condition will improve quite significantly given the appropriate treatment. At the same time I note a slight possibility of deterioration in her condition, although I think that more likely to occur towards the end of her working life. All in all, I think it reasonable to adopt a discount figure of 60 per cent for retained earning capacity and the possibility that the plaintiff will be able to maintain [social security] benefits beyond the preclusion period."
199 Counsel for the appellant submitted that the finding as to "a slight possibility of deterioration in her condition" involved reviewable error because some evidence from Dr Davis, the occupational physician, was overlooked. In his report dated 4 August 2009, Dr Davis commented that the appellant would certainly "develop increasing degenerative changes in the lower discs and accompanying increasing instability which may eventually give rise for consideration of a lumbar fusion ...". Dr Dixon concurred with that comment in a report dated 8 September 2009 that was also in evidence. Under cross-examination, Dr Davis said that the appellant would need "some care" if the L5/S1 disc extended further out, and if she got a further herniation which ended with severe radiculopathy. In re-examination he explained that radiculopathy is the irritation of a nerve root.
200 Although this body of evidence was not referred to by his Honour when dealing with damages for future economic loss, it is clear that he was alert to it. At par[249] of his reasons, when reviewing the evidence as to the extent of the appellant's disabilities, he quoted the relevant comment in Dr Davis' report of 4 August 2009. At pars[311] and [312], when considering the claims for future medical expenses, his Honour dealt with a claim for $5,436 to cover the cost of a lumbar fusion in 15 years' time. At par[312] his Honour said this:
"Lumbar fusion surgery, according to Dr Davis, was dependent on whether there is further disc protrusion. The degree of likelihood as to this and the timing were not addressed. I think an assumption of a moderate chance in 15 years' time and hence an allowance of $1,500 for the possible future costs of this procedure, is reasonable."
201 His Honour was not obliged to mention every aspect of the appellant's prognosis when assessing her residual earning capacity. There is no reason to think that he overlooked the possibility of a further disc protrusion affecting her capacity to work. Clearly his Honour considered that there was only a possibility of a further disc protrusion, and only a moderate possibility of deterioration to the extent that fusion surgery might be required. It was also significant that the condition, if it deteriorated to that stage, was treatable by means of fusion surgery. None of the findings made in relation to the appellant's prognosis and the possibility of fusion surgery were inconsistent with the finding at par[305] of a slight possibility of deterioration, more likely to occur towards the end of the appellant's working life.
202 In our view it cannot be said that his Honour ignored the possibility of a further disc protrusion, nor that he gave insufficient weight to that possibility. Ground 5 must fail.
203 The appellant gave unchallenged evidence at the trial that she had done no remunerative work since October 2003, that she had been receiving a disability support pension since about November 2004, and that her husband was receiving a carer's pension. Evidently he was regarded by the authorities as her carer. It was in the light of that evidence that the learned trial judge took the possible receipt of future social security benefits into account, along with the appellant's retained earning capacity, in discounting the damages for future economic loss.
204 The appellant contends that the possible receipt of future social security payments should not have been taken into account in that way or at all. Ground 4 of her notice of appeal reads as follows:
"His Honour erred in determining the discount rate His Honour applied in respect of the future component of the Appellant's claim for damages for loss of earning capacity by taking into account the possibility that the Appellant might receive social security payments."
205 There have been a number of cases over the last 25 years in which Tasmanian judges have proceeded on the basis that the possible receipt of future social security payments should be taken into account, as a factor favouring the defendant, when assessing damages for the impairment of a plaintiff's future earning capacity. Those cases will be discussed in detail below. The appellant contends that those cases should not be followed.
206 Counsel for the appellant advanced a number of arguments as to why future social security payments should have been totally disregarded by the learned trial judge. One of those arguments was based on the High Court's decisions in National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 and Redding v Lee, Evans v Muller [1983] HCA 16; (1983) 151 CLR 117. Essentially it was argued that such payments should be disregarded because it was evident from the provisions of the Social Security Act 1991 (Cth), particularly Pt3.14, that disability support pensions and other benefits payable under that Act were intended to be enjoyed by their recipients in addition to any entitlement to compensation or damages, and not provided in relief of liability in others fully to compensate those recipients.
207 Under Pt3.14 of the 1991 Act, payments of "compensation", which includes common law damages, are taken into account in determining eligibility for most forms of social security benefits, including disability support pensions. There are also provisions whereby past payments of such benefits can be recovered by the Commonwealth. When a lump sum is paid by way of compensation or damages, the "compensation part" of the lump sum is ascertained. When the damages have been assessed by a judge, the secretary of the relevant department, or his delegate, is required to determine what part of the payment is in respect of lost earnings or lost capacity to earn: s17(3)(b). The compensation part of the lump sum is then divided by the "income cut-out amount" - an amount worked out using a formula set out in s17(8). The learned trial judge proceeded on the basis that the income cut-out amount was $789.10. The figure produced by dividing the compensation part of the lump sum by that amount becomes the number of weeks of a "preclusion period" during which no benefits are payable: s1169(1). The preclusion period is treated as having begun on the day when the loss of earnings or loss of earning capacity began: s1170(3)(a). Payments of disability support pension or other benefits made during the preclusion period, before or after judgment, can be recovered by the Commonwealth under s1178.
208 The learned trial judge concluded that the preclusion period in this case was likely to have expired before judgment. There is no reason to doubt the correctness of that conclusion.
209 The statutory regime in relation to compensation and damages payments described above was first introduced by amendments to the Social Security Act 1947 (Cth) that took effect on 1 May 1987: Social Security and Veterans' Affairs (Miscellaneous Amendments) Act 1986 (Cth). The High Court cases relied on by the appellant pre-date that statutory regime.
210 National Insurance Co of New Zealand Ltd v Espagne (above) concerned a claim for damages by a man who had been totally blinded as a result of negligent driving. He had been granted an invalid pension - the old name for a disability support pension - under the 1947 Act. Under that Act at the relevant time, an invalid pension was a discretionary payment. No one was entitled to such a pension as of right. Such a pension could not be granted to a person who was "not deserving of a pension". The rate of payment was discretionary. The rate of pension as determined by the Director-General of Social Services was to be reduced by the amount by which the income of the pensioner exceeded a certain figure, but not when the pensioner was blind. The Director-General had a discretion to cancel, suspend, reduce or increase an invalid pension, except of that of a permanently blind person, on account of the pensioner's income or the value of the pensioner's property, as well as the power to cancel or suspend the pension of any pensioner "for any other reason". See the summary of the legislation by Windeyer J at 585.
211 The High Court (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ) unanimously held that the award of an invalid pension to an injured plaintiff was to be disregarded, both before and after trial. The relevant principles appear in the judgments of Dixon CJ and Windeyer J, with both of whom Fullagar J agreed. All members of the court concluded that payments of an invalid pension should be disregarded, in the same way as payments from a benevolent fund or payments pursuant to a contract of accident insurance are disregarded.
"It is hardly possible to work out any principle which would apply to every case. But, be that as it may, I think that it is wiser as well as better in the general interest to say simply what is the reasoning which leads to the conclusion that the pension under the Social Services Act 1947-1957 should not be taken into account in reduction of damages. The reasoning begins with a distinction which I think is clear enough in general conception. There are certain special services, aids, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him."
213 After considering the provisions of the relevant legislation, his Honour concluded at 574:
"But a grant even of such a pension cannot be obtained as of strict right and it is plain that it is granted after a consideration of the position or situation in which the applicant stands and entirely for his use and benefit and not in relief of any person antecedently liable to him to compensate him in any way for his loss of vision."
214 Windeyer J considered what the situation would be if a plaintiff was granted an invalid pension on some basis other than permanent blindness and then went on to recover damages. His Honour referred to the provisions in the 1947 Act that imposed a means test in relation to a pensioner's income, and those which empowered the Director-General to cancel, suspend or reduce a pension. His Honour continued at 585 - 586:
"This means that a pension (of anyone except a blind person) is reducible if the pensioner afterwards recovers substantial damages: and it may be assumed that ordinarily a reduction will be made, because as Scrutton LJ said, 'it is difficult to believe that a public department would put upon the taxpayer a burden which should be discharged by the wrongdoer' (Baker v Dalgleish Steam Shipping Co (1922) 1 KB 361, at p 373).
Therefore, as a pension (except that of a blind pensioner) may be discontinued or reduced having regard to any amount recovered as damages, those damages must be assessed without regard to the prospects of the continuance of the pension."
215 His Honour went on to consider what approach should be taken in relation to invalid pension payments received before the date of trial and, at 586 - 587, said the following:
"At this point it is only necessary to say that the Commonwealth disburses its bounty according to the statute; and it may override the common law. To read the Act as meaning that the grant of a pension diminishes a pensioner's claim against a wrongdoer would be to the advantage of the wrongdoer and his insurer: but it would be, or might be, to the disadvantage of the Commonwealth and of the pensioner. This is not, in my view, the result that the statute on its true construction produces. I am therefore of the opinion that, because of the terms of the Act, evidence of the grant of an invalid pension, or of a claim for a pension, for disabilities other than permanent blindness is irrelevant in an action for damages for personal injury."
216 His Honour went on to consider the impact of invalid pensions awarded to permanently blind persons on their entitlements to damages and, at 600 - 601, concluded as follows:
"Pensions to permanently blind persons are also, I think, to be disregarded; but for a different reason. That reason is that the manifest policy of the Act, as I read it, is that a blind pensioner is to have his pension in addition to whatever rights of action or proprietary rights he may have. The distinction between blindness and other disability is that the Commonwealth when granting a pension undertakes in the one case an obligation that cannot afterwards be diminished if compensation be recovered from the wrongdoer: in the other case it may be. But in neither case is the wrongdoer's liability reduced: for the pension is not given by the Commonwealth to aid him."
217 Redding v Lee and Evans v Muller (above) were heard separately, but the judges of the High Court wrote "rolled up" judgments dealing with both appeals. Both concerned assessments of damages for personal injuries caused by negligence. In Redding v Lee, it was held by the majority (Gibbs CJ, Mason, Murphy, Brennan, Deane and Dawson JJ, Wilson J dissenting) that past and future payments of an invalid pension were to be disregarded. The legislation had been amended since Espagne, so that an invalid pension was payable as of right to an eligible claimant. However the amount of the pension continued to be discretionary, and an income test continued to apply. It was thus open to the Commonwealth to cancel or reduce a pension if the recipient recovered damages, so that any pension payments after the recovery of damages might be regarded as intended as payments to be enjoyed over and above the payment of damages.
218 In Evans v Muller, it was held by a different majority (Mason, Wilson, Deane and Dawson JJ, Gibbs CJ, Murphy and Brennan JJ dissenting) that unemployment benefits received prior to trial were to be taken into account in assessing damages. The majority regarded it as significant that neither the entitlement to receive unemployment benefits nor the amount of the benefits was discretionary.
219 All members of the High Court took the view that the two appeals had to be decided in accordance with the principles expounded in Espagne: Gibbs CJ at 126; Mason and Dawson JJ at 137; Murphy J at 148 - 149; Wilson J at 151; Brennan J at 159; Deane J at 168. However the members of the court differed as to what results should flow from applying the established principles to the facts of the two appeals.
220 Mason and Dawson JJ, who formed part of the majority in both appeals, wrote a joint judgment. Their Honours drew attention to s28(1) of the 1947 Act, which had not been amended since Espagne, whereby the Director-General, having decided to grant an invalid pension, was required to have "regard to all the circumstances of the case" in determining what rate of pension was "reasonable and sufficient". They observed that the Director-General was entitled to have regard to the existence of a damages claim, and concluded, at 143:
"Accordingly, the existence of s 28(1) is indicative of a legislative intention that pensions paid under the Act should be disregarded in the assessment of damages, the latter having already been taken into account in the payment of the former."
221 Their Honours took a different view in relation to unemployment benefits because the relevant statutory provisions gave the Director-General no discretion to consider the general circumstances of an applicant, either in deciding whether or not to grant an unemployment benefit or in determining the rate of that benefit. That led them to conclude that such benefits were "a substitute or partial substitute for wages, justifying the same treatment as wages in terms of assessment of damages."
222 A number of passages in the judgments in the two appeals suggest that payments of a pension or benefit should be disregarded in assessing damages if the recipient's actual or prospective entitlement to damages may be taken into account in determining whether the benefit or pension should be paid, or in determining the amount to be paid.
223 In obiter dicta at 125 Gibbs CJ, having referred to the judgments of Dixon CJ and Windeyer J in Espagne said:
"The test suggested is a general one, and it requires the court to consider the nature of the benefit which the defendant seeks to set off against the damages, and to inquire whether the person or body supplying the benefit intended that the plaintiff should enjoy it in addition to whatever damage he might recover from the defendant. In the case of a benefit provided under statutory authority, the intention of the legislature, in providing the benefit, must be gleaned from the statute itself as a matter of interpretation. If the statute expressly provides (as some statutes relating to workers' compensation have done) that a plaintiff who has recovered damages shall repay the amount of the benefit it will be clear that the receipt of the benefit must be disregarded in the assessment."
224 In obiter dicta at 163, Brennan J said the following:
"In some instances, however, the indicia of legislative intention are clear enough. Where, for example, the Act provides for recoupment of a benefit or allowance out of damages awarded to the person receiving the benefit or allowance, it may be taken that the legislature does not intend that damages should be diminished by receipt of the moneys to be recouped. ... Otherwise the receipt of a benefit or pension would result in a double deduction - once from the damages assessed and again in paying out the sum recouped by the Commonwealth."
225 At 168, Deane J concluded his judgment with a suggestion for legislative reform, as follows:
"One cannot but be conscious of the unfortunate aspects of a decision that payments received on account of unemployment benefits should be taken into account in the assessment of damages while payments received on account of invalid pensions are not. Quite apart from the obvious appearance of incongruity, the benefit to the insurer resulting from payment of unemployment benefits has almost as little to justify it as the double benefit to the plaintiff in the case of an invalid pension and is liable to constitute a further financial advantage to be obtained by an insurer from delay in the settlement or hearing of a claim. The obvious and commonsense solution - ie that payments on account of either invalid pension or unemployment benefits not be taken into account in the assessment of damages but, to the extent appropriate, be recouped to consolidated revenue in much the same manner as payments received on account of workers' compensation are recouped to the workers' compensation insurer - lies, however, in the hands of the Parliament and not of the Court."
226 Murphy J made a similar suggestion at the conclusion of his judgment, at 151. It was some four years later that the new statutory regime based on preclusion periods commenced to operate on 1 May 1987.
227 The first reported case in which the impact of the legislative changes was considered was Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637. The plaintiff in that case had received unemployment benefits for a period ending before 1 May 1987, had returned to work, and was working at the time of his trial, but was at risk of becoming unemployed again as a result of his injuries. In the event of him becoming unemployed in the future, he would have been entitled to receive unemployment benefits again, and the new legislative regime would have applied. Ambrose J considered whether the right to receive unemployment benefits in the future should be taken into account. No question arose as to the unemployment benefits paid prior to trial, to which Evans v Muller applied.
228 Ambrose J quoted the final paragraph of the judgment of Deane J in Redding v Lee, Evans v Muller - the paragraph quoted above - and said at 643 - 644:
"To my mind the amendments to the Social Security Act 1947 (Cth) in 1986 to which I have referred have the effect of providing a 'solution' of the kind to which Deane J. referred ...
In the light of this statutory amendment relating to the plaintiff's entitlement to unemployment benefits upon recovery of his damages, I do not discount his award of damages for diminution of earning capacity by reason of any entitlement he may have in the future to unemployment benefits."
229 That reasoning was referred to with approval in the Full Court of the Supreme Court of Queensland by Thomas J, with whose reasons Andrews CJ agreed, in Dabinett v Whittaker [1989] 2 Qd R 228 at 232, where his Honour said:
"I respectfully agree with the reasoning of Ambrose J in Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637, which holds that under the present legislation a plaintiff's damages for diminution of earning capacity ought not to be discounted by reason of future expectation of unemployment benefits. In my view a court should not now be required to make any adjustment to damages, upwards or downwards, by reason of future expectation of social security payments, or the expectation that part of them may need to be repaid, whether they happen to be unemployment benefits or sickness benefits. The same applies to pre-trial payments. Under the present system the government gives benefits, and the government may take away part of those benefits after a court has compensated a plaintiff. The courts are now free to calculate appropriate damages at common law without regard either to the amount of those benefits or the amount that may be taken back."
230 Those comments, whilst authoritative, were obiter. The question before the Full Court was whether payments of sickness benefit should be taken into account. The preclusion period provisions in the 1947 Act did not apply to payments of sickness benefit that commenced before 8 February 1988, but the appellant had commenced to receive sickness benefits before that date.
231 One might think, having regard to the authorities referred to above, that the new legislation made it clear that Parliament intended all payments of benefits made after the expiry of the statutory preclusion period to be enjoyed by their recipients in addition to any damages or other compensation, and that payments after the expiry of the preclusion period were therefore not to be taken into account in assessing damages. But a different view was taken in Tasmania, and in Tasmania alone.
232 The first Tasmanian case in which the new statutory regime was considered was Sorenson v Woolnough [1989] Tas R (NC) 15; A32/1989; [1989] TASSC 36. Underwood J (as he then was) referred to Espagne, Redding v Lee, Evans v Muller, and a number of other cases decided before the 1987 amendments. He considered the new statutory regime in detail, expressed the view that it would be impossible to calculate the length of the preclusion period before assessing the quantum of damages, and concluded that the appropriate course was to take future unemployment benefits into account as a contingency "in a broad practical common sense way". His Honour said very little as to why he concluded that they should be taken into account. He referred to, and followed, a number of cases concerning unemployment benefits paid or payable under the old statutory regime: Jesberg v Rackemann [1986] 1 Qd R 181; Tuncel v Renown Plate Co Pty Ltd [1976] VicRp 50; [1976] VR 501; Bertram v Kopodistrias [1984] VicRp 52; [1984] VR 619; Triffett v Thomas B34/1986 (Nettlefold J). At 21, par[47], he erroneously described the comments of Ambrose J in Muscat v Statewide Industries Pty Ltd (above) as obiter. He went on to say:
"However, I think it is an over simplification to conclude that the legislative change means that in an assessment of damages for lost earning capacity the future receipt of unemployment benefits should be ignored."
233 The same point was considered by Wright J in Burbury v Sievers A83/1994; [1994] TASSC 132. Parts of that judgment were reported in both the Tasmanian Reports and the Motor Vehicle Reports, but nothing was reported as to the relevant point. At 46, par[173], after referring to Redding v Lee and the 1991 Act, his Honour said:
"To test the legislation by reference to whether or not it is intended to confer a benefit upon an injured person irrespective of whether that person has a right to claim damages or compensation from another party is not a wholly satisfactory test. Nor is it easy to discern some overall purpose to legislation of this kind, (eg see the comments of Brennan J in Redding v Lee (supra) at 163). If the legislation requires an injured party who has received benefits under the legislation to repay such benefits in the event of a successful claim it is usually apparent that such a process negates any argument that the damages or compensation should be reduced. The present legislation appears to combine two philosophies and to some extent suggests a compromise approach by Parliament ...".
234 His Honour proceeded to take into account the entitlements of the two plaintiffs in that case to disability pensions. Ever since that case, Tasmanian judges have proceeded on the basis that future social security payments, or the possibility thereof, are to be taken into account in assessing damages. In Stoward v Joron Pty Ltd B66/1994; [1994] TASSC 180, Crawford J (as he then was) at 11, par[45], revealed that he was inclined to reject the argument that future benefits should be taken into account, but said "I feel obliged to follow the principles stated by my brother judges in Sorenson v Woolnough and Burbury v Sievers." In Pasminco Australia Ltd v Gasu A42/1996; [1996] TASSC 76, the Full Court followed those cases. However the point was not argued. Counsel for both sides proceeded on the basis that future social security benefits were to be taken into account, as did Zeeman J at 10, pars[38] and [39], with Wright and Slicer JJ agreeing. The same approach was taken in Anthony v Tasmanian Alkaloids Pty Ltd [2004] TASSC 118 at par[83] (Blow J), and Marlow v Walsh [2008] TASSC 58 at pars[171] - [175] (Porter J, with whom Evans and Blow JJ agreed). The point was not argued in Marlow v Walsh either.
235 In Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 4; (2006) 17 NTLR 83, 151 NTR 1, at par[207], a question arose as to whether unemployment benefits paid before the trial should be taken into account or disregarded. Mildren J reviewed the authorities as to this point, and followed the Queensland authorities in preference to the Tasmanian ones, saying:
"... I think the preferable view is that it is intended by the Social Security Act that, to the extent that the plaintiff may get an award which is more than he is obliged to repay, he can keep the excess. That being so, no deduction will be made for that possibility in the calculation of the loss."
236 In our view the point concerning future social security benefits was wrongly decided in Sorenson v Woolnough and Burbury v Sievers, and those cases should not be followed as to that point. Ever since Espagne, the law has been clear. The proper approach is to determine whether the payer of a benefit to an injured person intended the payment or payments to be enjoyed in addition to any right to damages or compensation from another party. The relevant provisions in the Social Security Act and the legislation that it replaced make it clear that Parliament intended the recipients of pensions and benefits, if they had claims or entitlements to damages or other compensation for their injuries, to keep the payments that they received after the expiry of the statutory preclusion period, in addition to any damages or compensation that they might receive. Applying Espagne, Redding v Lee and Evans v Muller, it follows that social security payments received after the preclusion period must not be taken into account in reduction of damages. Payments made during the preclusion period must also be ignored, but for a different reason, namely that they are fully recoverable by the Commonwealth.
237 We reject the notion that the legislation combines two philosophies. It has achieved precisely what Deane J suggested in Redding v Lee, Evans v Muller. It imposes a requirement whereby social security payments, whilst not being taken into account in the assessment of damages, must "to the extent appropriate, be recouped to consolidated revenue in much the same manner as payments received on account of workers' compensation are recouped to the workers' compensation insurer": Redding v Lee, Evans v Muller (above) at 168. The receipt of damages or compensation does not forever preclude the recipient from receiving social security benefits, nor is eligibility for such benefits reduced on a dollar-for-dollar basis. Ineligibility and recoupment are provided for "to the extent appropriate", as determined in accordance with the statutory provisions.
238 For the reasons stated, ground 4 must succeed, and the appellant's damages for the impairment of her future earning capacity must be re-assessed.
Re-assessment of damages for impairment of future earning capacity
239 The learned trial judge discussed the appellant's residual earning capacity at pars[298] - [303] of his reasons. His findings and observations can be summarised as follows:
240 At the trial, the appellant gave uncontroversial evidence that she completed a four-year Bachelor of Education course at the University of Tasmania in 1984 and was employed as a classroom teacher from 1985 until the end of the second term in 1987, initially teaching a grade 3 class. She left teaching to open Tingletree in 1987. From 1991 until 2003 she was a member of the Australian Council for Educational Administration, which is a national body involved in policy and curriculum development and community liaison.
241 In our view the appellant's skills, qualifications and experience made her employable in many teaching and administrative positions for which she would be physically fit. If she were to attempt to re-enter the workforce, she might take some time to find suitable work. It is quite possible that she would be able to find full-time work in the long run, but there is a substantial chance that she would only be able to find intermittent or part-time work. It is unlikely, though not out of the question, that she would be able to earn as much as she could have if she had continued to operate and manage Tingletree.
242 Counsel for the appellant submitted that, if social security benefits were not to be taken into account in assessing damages, we should have regard to the amount that the appellant was receiving by way of disability support pension at the time of the trial ($250.74 per week); compare that figure to the hypothetical earnings figure of $1,108 per week; and increase the learned trial judge's award of $168,000 for future economic loss to a very large extent. However that methodology does not address the need to estimate what the appellant is reasonably capable of earning.
243 As we have said, after estimating what the appellant could have been earning if she were still at Tingletree and had not been injured, and after allowing for the usual contingencies, his Honour valued the appellant's hypothetical earning capacity at $419,731. He deducted 60% of that figure to allow for her residual earning capacity and for the possibility of her mitigating her losses by obtaining social security benefits. In our view a deduction of 40%, or $168,000 in round figures, would be appropriate to allow for the residual earning capacity alone. If one uses the same multiplier that was used in the learned trial judge's future economic loss calculations, it appears that such a deduction is consistent with the appellant having retained a capacity to earn, on average, the equivalent of about $288 per week from the time of the judgment until age 70. We consider that to be a reasonable estimate of her retained capacity. The 40% deduction produces a figure of $251,838.60, which we would round up to $252,000.
244 It follows that, as a result of ground 4 succeeding, there must be an adjustment of the judgment sum in the appellant's favour to the extent of $84,000, less 20% for contributory negligence. That is, there must be an adjustment of the judgment sum of $67,200 in her favour.
245 The learned trial judge awarded damages for the loss of the appellant's superannuation entitlements over and above his award for loss of earning capacity. He did so on the basis that the damages for loss of superannuation entitlements should be proportionate to the damages for loss of earning capacity. The appellant's ground 6B asserts that there were errors relating to the award in respect of lost earning capacity as identified in other grounds, and that the award of damages for loss of superannuation entitlements was therefore inadequate.
246 Because ground 4, relating to social security benefits, has succeeded, ground 6B must also succeed. The learned trial judge accepted evidence from an actuary to the effect that the amount required to compensate the appellant for the loss of superannuation benefits was proportionate to the loss of earnings. In respect of the superannuation benefits relating to future earnings, the appellant claimed $57,342, which was 8.9% of the amount that she claimed for the loss of future earnings. His Honour awarded $14,952, which was 8.9% of his award of $168,000 for future economic loss. Since we have decided that the award for future economic loss should be increased to $252,000, it follows that the award for the loss of future superannuation benefits should be increased to 8.9% of that figure, namely $22,428. That represents an increase of $7,476. There must be an adjustment of the judgment sum in the appellant's favour to that extent, less 20% for contributory negligence. That is, there must be a further adjustment of the judgment sum of $5,980 in her favour.
247 Apart from damages for past and future economic loss, and general damages for pain and suffering and loss of amenities, the only other component of the award of damages that is challenged in these proceedings is the award of $21,550, before adjustments, in respect of pain management and gymnasium fees. Each of the notices of cross-appeal contains a ground in the following terms (the council's ground 4; Mr Trezise's ground 7; the landlords' ground 4):
"The Learned Trial Judge erred at [318] and [319] in failing to discount the award of damages for attendance at a pain clinic and gymnasium to reflect the degree of probability that the plaintiff would ever avail herself of these services and hence incur the expense."
248 There is no question raised on this appeal about whether the pain management and strengthening programs were needed by the appellant as a consequence of her compensable injuries. The learned trial judge accepted the view of medical experts that these programs "have a reasonable chance of improving her mobility and general functioning": par[299]. There is no challenge to that finding. The only challenge to this component of the award is that there was no discount for the degree of probability that the appellant would not avail herself of these services. This ground of the notices of cross-appeal did not receive attention in the written or oral submissions. Perhaps the respondents saw their position as implicit in their submissions regarding other grounds. Regardless of the lack of submissions and the reason, we will give consideration to this ground.
249 The learned trial judge allowed $14,700 for a multidisciplinary pain management program to provide the appellant with assistance in developing pain management strategies and to reduce her reliance upon pain relief medication. The type of program under consideration is offered at the Royal North Shore Hospital in Sydney or Wesley Hospital in Brisbane. The trial judge noted that Drs Dixon, Gorman and Davis said that the appellant would benefit from attendance at a pain management program and that the need for the program was not disputed by the respondents. The amount allowed included travel expenses and accommodation for the appellant and the cost of an initial attendance for assessment, as well as the cost of the program.
250 The appellant gave evidence at the trial that if she had the opportunity she would attend a pain management program. She also gave evidence about her compliance with treatment and therapies in the past. These included physiotherapy and the use of a TENS machine. Our attention has not been drawn to any evidence to support the contention that, despite needing the treatment, the appellant may not avail herself of it. There was no suggestion that she had an aversion to any of the treatment or therapies that would be provided as part of the program, or that she was not responsible in following the recommendations of her medical practitioners regarding treatment. It was entirely open for the learned trial judge to proceed on the basis that the appellant would attend the pain management program and not to discount the component of the award for the prospect that she may not attend. No error has been shown in that approach.
251 The learned trial judge allowed an additional amount of $6,850 for a gymnasium program and membership fees. The evidence of Drs Dixon and Davis recommended a strengthening program carried out under supervision of a physiotherapist at a gymnasium (Dr Dixon also recommended hydrotherapy) and then a self-managed program after that. The claimed cost was an amount of $18,784 which comprised an initial cost of $2,500 and gymnasium membership for life at an average cost of $1,100 per annum, the present value of membership fees for life being $16,284. The learned trial judge allowed the cost of the supervised program of $2,500, and allowed gym membership for self-management of the program for a period of five years, taking account of the present value. He held the view that thereafter the appellant would have to continue at her own expense. The evidence of the appellant at trial was that she would avail herself of such a rehabilitation program. Our attention was not drawn to any evidence demonstrating reluctance by the appellant to pursue her rehabilitation. Any prospect that her interest in attending a self-managed gym program might wane in years to come was accommodated by allowing for only a five year period. It has not been shown that there was any error in the approach taken or that some further discount was required.
252 Grounds 4 and 6B of the appeal, relating to social security benefits, are the only grounds that have succeeded. The appeal will be allowed. The judgment sum of $295,350 will be increased by $73,180, so that the judgment sum as varied will be $368,530. The cross-appeals will be dismissed.
Reasons for rejecting application to adduce evidence
253 At the beginning of the hearing of the appeal, counsel for the appellant applied for leave to adduce some actuarial evidence in relation to the CPI. They sought to read an affidavit of an actuary which had over 70 pages of statistical information annexed to it. The Court rejected that application, stating that reasons would be published in due course. We will now state our reasons for rejecting the application.
254 The relevant powers of the Full Court to receive further evidence are conferred by the Supreme Court Civil Procedure Act 1932, s48(1) and (3). Those subsections read as follows:
"(1) On the hearing of any appeal a Full Court shall have power to receive further evidence upon questions of fact, and may take such evidence by oral examination in court or by affidavit, or may direct the same to be taken by a judge or an examiner, or a commissioner, or a judge of an inferior court of civil jurisdiction.
(3) Upon any appeal from a judgment, order, or other determination given or made after the trial of any cause or matter on the merits, such further evidence (except as to matters which have occurred after the date of judgment, order, or determination) shall be admitted only by special leave of the Full Court, which shall only be granted in cases in which -
(a) the evidence was not in the possession of the party seeking to have it admitted, and could not by proper diligence have been obtained by him, before the termination of the trial; or
(b) there is some other special circumstance which, in the opinion of the Full Court, justifies the admission of it."
255 Senior counsel for the appellant submitted that we should receive the actuary's evidence for two reasons:
256 So far as the earlier awards of general damages are concerned, the Court is able to take judicial notice, in a general way, of the changes in the value of money over the years. As the High Court made clear in Planet Fisheries, the assessment of general damages for non-economic loss is a task that has nothing to do with precise mathematical calculations. Information about particular cases will often be of little or no assistance because cases turn on their own facts. There is no need for the provision of actuarial evidence and statistical information in the ordinary run of cases concerning non-economic loss. The cost of adducing such evidence would ordinarily be out of all proportion to its usefulness, if any. On the hearing of an appeal, the procedural fairness implications are significant. If one party adduces such evidence, the other parties must be permitted to cross-examine the actuary, and given an opportunity to adduce evidence of their own in relation to issues that are opened up.
257 Every case in which it is alleged that a plaintiff's earning capacity has been impaired is potentially a case in which inflationary increases in earnings prior to trial could be the subject of a calculation based on CPI increases. Permitting litigants, after judgment, to argue appeal grounds based on updated CPI information would run counter to the principle that there must be an end to litigation. Commonly the assessment of damages for past economic loss cannot be undertaken with a fine degree of precision, and it is necessary for trial judges to undertake calculations based on a series of estimates. If it is desired to rely upon new evidence as to inflation rates or CPI figures, it would be inappropriate to allow such evidence to be adduced on appeal unless it was likely to demonstrate that the trial judge had arrived at a wholly erroneous estimate of damages, or at least that the amount awarded under one head of damage was manifestly inadequate or manifestly excessive. There was no suggestion that the updated CPI information in this case would make a significant difference to the outcome if it were to be received by this Court.
258 At best the evidence in question was of very limited significance. The reasons for not admitting it, relating to cost, inconvenience, and the finality of litigation were overwhelming. For those reasons, we refused the application.
259 During the hearing of the appeal, all of the respondents applied to amend their notices of cross-appeal by adding grounds 1A and 1B, which we have dealt with above. That application was opposed. Junior counsel for the appellant argued that the respondents were seeking to take points that were not taken at trial, that the trial might have been conducted differently if those points had been taken at trial, and that the appellant would suffer prejudice if the amendments were allowed. At the conclusion of the hearing of the appeal, we granted leave to amend as sought, without then stating our reasons for granting leave. It remains for us to state them now.
260 Grounds 1A and 1B raised contentions as to unearned dividend income, as disclosed in two of the appellant's tax returns, having been taken into account in the assessment of damages for past and future economic loss, and as to CPI movements, rather than evidence of award wage increases, having been taken into account in assessing damages for future economic loss. It is true that those points were not taken at trial. However there was no reason for any such points to have been mentioned at trial until after the close of the evidence. In fact there were very sound strategic reasons for no such points being mentioned by counsel for the defendants prior to closing addresses. It therefore cannot be said that additional or different evidence might have been given or adduced if any of the points in question had been taken at the trial. The application for leave to amend was made on the first day of the hearing of the appeal. Senior counsel for the appellant made oral submissions during the hearing of the appeal as to the merits of the proposed additional grounds (as they then were). When we granted leave to amend, we permitted him to provide written submissions in relation to those grounds, and he subsequently did so. We granted leave because grounds 1A and 1B appeared to have possible merit, and because we were satisfied that the appellant would suffer no prejudice if leave were granted.
Partridge
Hobart City Council [2012] TASFC 3
(1961) 105 CLR 569
(1983) 151 CLR 117
(2006) 17 NTLR 83
(1989) 63 ALJR 349
(1990) 171 CLR 167
(1993) 177 CLR 472
(2003) 214 CLR 118
(1959) 101 CLR 298
(2003) 77 ALJR 1598
(1961) 108 CLR 642
(1998) 8 Tas R 166
(1968) 119 CLR 118
(1999) 201 CLR 49
(2002) 212 CLR 338