Contentions on appeal
The grounds of appeal which were pressed were as follows:
"5. The Courts below erred in the exercise of their discretion in awarding a global buffer in the sum of $40,000 for future economic loss.
(a) In lieu of a more precise mathematical calculation based on the available evidence and referable to the master's finding in relation to the appellant's injuries, disabilities and capacity for work;
(b) Alternatively, in that the global buffer is inadequate, especially by reference to the findings of fact as to the applicant's incapacity for work and/or the uncontroverted evidence in respect thereto.
6. The Courts below failed to provide adequate reason in relation to the damages for future economic loss."
It is convenient to consider ground 6 first. The ground has its genesis, of course, in the obligation of a judge to give a reasoned decision. The failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 per McHugh JA and Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA. The extent of the obligation to give reasons based on particular findings of fact will depend upon the circumstances of each case. It is, however, only the critical or crucial reasoning that must be exposed: ibid. It is in that sense that what is sufficient will depend upon all the circumstances of the particular case.
The suggestion in argument was that the Master had failed adequately to expose his reasoning, particularly when the award in question is examined against the findings and awards in relation to past economic loss, future domestic assistance and ongoing medication.
It is true that some greater exactitude of expression might have been employed. For example, the reference to a "buffer" might have been otherwise expressed. Again, it might have been made clearer whether the Master did accept that the plaintiff would, but for the accident, have worked to normal retiring age, especially in the light of the medical evidence about her apparent psychological difficulties, and, judging by the transcript of the plaintiff's evidence, the obviousness of them. . (We think that, nevertheless, the reasonably available inference is that the Master did accept that she would have worked to normal retirement age). Further, this might be a case in which another judge might have sought, with whatever inexactitude was involved, to try to estimate the plaintiff's loss of earning capacity by way of estimating the number of hours per week which the plaintiff could work as a social worker, or by estimating a percentage loss of her capacity to earn what she would have been earning but for the accident.
However, regard must be had to the issues that were placed before the Master, the way in which this was done and the difficulties which confronted him. This was a difficult case. The plaintiff had impressive evidence in her history that she is a person of determination and fortitude. Equally there was cogent material to suggest that, from whatever causes, she had materially exaggerated important aspects of her case, including her impaired ability to work. The independent evidence of her colleagues, which the Master seems to have accepted, supports the view that the plaintiff had genuine pain and difficulty arising from the neck and back. However, it is not the only reasonable inference from such evidence that those difficulties were of such a nature that she could not now, or would not in the future be able to, work for significantly longer hours than she is now working. Having regard to the difficulties which confronted the Master and to his having understandably devoted the major part of his judgment to the rejection of the primary claims made by the plaintiff, his relative brevity in expressing his reasons on this aspect of the case is hardly a matter for legitimate criticism.
In these circumstances it seems to us that the process of the Master's reasoning is sufficiently clear. He accepted that, despite exaggeration, the plaintiff had ongoing limitations. He accepted that these were real but comparatively "modest": he felt that the assessment should be for a sum of "modest but realistic proportions to reflect an ongoing limitation". Whereas this view might have been expressed differently or the assessment might have been more fully articulated in one of the ways we have mentioned or otherwise, the effect would not have been different. Nor essentially would there have been any further illumination of the Master's reasoning process. It seems to us from his reasons that the Master was left in the position where he felt it inappropriate to attempt intermediate quantifications of the kinds we have mentioned.
It was sought to support the supposed lack of exposure by the Master of his reasoning process by reference to arithmetical calculations. These viewed the $40,000 awarded as equivalent to a loss of not much more than two hours' earnings per week, an apparently very small assessment. This was compared with the $30,000 awarded for past economic loss, which was said to represent a loss of about eight hours' pay per week. The comparison with the past is illusory for two reasons. The first is the inclusion of interest in the past calculation, as indicated above; and the fact that the future assessment is necessarily discounted to achieve a present value of future losses. The second is that, on any reasonable view, the plaintiff's losses soon after the accident were likely to be larger than later, once her situation and her adaptation to her disabilities had stabilised (or may yet stabilise). The suggested appellable smallness of the sum of $40,000 is considered below.
Ground 5 of the grounds of appeal firstly asserts an error of principle in resorting to an intuitive or in globo assessment rather than following the conventional approach of selecting a number of hours between 15 and 38 per week which the plaintiff could work. However, as the Full Court pointed out, there was express evidence from which the Master might have concluded that all improvement in the plaintiff's capacity to cope with work was not exhausted and it is a fact of life that, at least in some cases, when the hope or fear of a litigious result is removed by the finality of the litigation, further adjustment to cope with long term disabilities occurs. More fundamentally, in our view the Master was well-entitled, given all the uncertainties about the plaintiff's future, including those to be inferred from the report of Dr Ewing put forward by the plaintiff and referred to above, to opt for an intuitive, global assessment. In saying this, we do not doubt that, where more precise arithmetical analysis can be undertaken, it is in general desirable that this be done. We agree with the Full Court that, as Stephen J in Todorovic v Waller (1981) 150 CLR 402 at 431 cautioned:
"The concern of courts should not be, as is often said, lest processes of assessment bear an illusory air of precise accuracy but rather lest their outcomes bear the all too real appearance of gross inaccuracy in attaining anything like a proper measure of compensation."
The second error suggested was that the sum awarded was inadequate. There is an interesting debate about whether, in contrast to an award of damages under the head of pain and suffering, an award for future loss of earning capacity is "discretionary" so as to attract the well-known principles that restrain appellate courts from too ready interference with discretionary judgments at first instance: see, for example, the difference of views expressed in Moran v McMahon (1985) 3 NSWLR 700. It may be assumed in the plaintiff's favour that she need not strictly satisfy those tests. Nevertheless, as Barwick CJ pointed out in Wilson v Peisley (1975) 50 ALJR 207 at 209, the less "ponderable the elements of damages under consideration the less likely will there be a case for setting aside the award". Accordingly, to show demonstrable error of the kind asserted, the plaintiff would need to satisfy us that, granted that (as we have held) an intuitive rather than an arithmetical assessment was permissible, the result nevertheless was quite out of the range of a sound approach to such an assessment.
Having regard to the plaintiff's age, the assessment was certainly only a modest one. However, it was by no means an insignificant award. As the plaintiff's own calculations before us show, the amount awarded is the equivalent of about $43.00 per week at 3% until age 65 subject to the usual 15% discount for vicissitudes. The award is consistent, for example, with a view that the plaintiff will be able to handle the work, not very physically demanding, of a social worker on a full time basis, albeit with some pain and difficulty, but with the odd day's or half day's respite. Nothing in the findings that the plaintiff would have an ongoing need for analgesic and anti-inflammatory medications and for assistance with the heaviest aspects of housework is inconsistent with that view. As we have endeavoured to show, there is no lack of a general consistency between such an assessment, the award for past economic loss and that for general non-economic damages. The impugned assessment was within a permissible range.