1. This is an appeal from a decision of Master Harper handed down on 24 August 2012. His Honour ordered the entry of judgment for the plaintiff, Rod Stewart, the current respondent, in the sum of $336,646.00.
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2. The grounds of appeal as amended on 17 October 2012 are stated to be:
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1.3 the grounds of appeal are:
(a) the court below erred in law by denying procedural fairness in that it failed to give proper, genuine and realistic consideration of the evidence in assessing damages for general damages, interest on general damages, loss of earning capacity, loss of superannuation benefits and deprived itself of the advantage it had enjoyed in seeing and hearing the witnesses and assessing the evidence by unduly delaying the delivery of reasons.
(b) the award for general damages, interest on general damages, loss of earning capacity and loss of superannuation benefits were excessive and could not reasonably be arrived at upon the evidence.
1.4 His Honour, the Master, failed to take into account relevant evidence or to draw reasonable inferences from that evidence as to the severity of the motor accident in which the plaintiff claimed to have been injured.
1.5 His Honour, the Master, erred in rejecting the appellant's application to rely upon the report of Dr John Korber dated 9 December 2010 which opined that the disc degeneration would almost certainly have preceded the injury in 2007. In doing so, the appellant/defendant has been denied procedural fairness, given that His Honour, the Master, accepted the opinion of the plaintiff's/respondent's doctors that the pathology and symptoms noted in the lumbar and cervical spines were accident-related.
1.7[sic] His Honour, the Master, fell into error in that he allowed an arbitrary sum of $150,000.00 by way of 'broad rounded figure for loss of earning capacity', contrary to the decision in Medlin v State Insurance Commission[1995] HCA 5; (1995) 182 CLR 1, and contrary to the evidence that the plaintiff was engaged in full-time employment, and noting there was no claim for past economic loss.
1.8 His Honour, the Master's allowance for general damages was excessive and failed to reflect the proper discount of the plaintiff's claimed disabilities, having regard to the whole of the evidence.
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3. This complains of a rejection of the appellant's application to rely upon a report, dated 9 December 2010, of Dr John Korber.
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4. Judgment in the matter was delivered on 24 August 2012. The matter had been concluded otherwise and judgment reserved on 15 December 2010. The subject of the claim at first instance was injury caused to the plaintiff respondent in a motor vehicle collision of 10 February 2007. Liability was contested only to the extent that the defendant/appellant alleged contributory negligence on the part of the complainant. The defendant failed on that issue and does not seek to challenge that finding.
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5. As at the date of judgment the plaintiff was a 41 year old man. He had been an army officer up to 1996 and then was an information technology consultant.
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6. His major complaint was of low back pain with episodes of neck pain and accompanying headaches.
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7. The role of the motor vehicle accident in his post-accident position was seriously in contention.
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8. The plaintiff had in 1991 experienced back pain in the course of an army exercise. An x-ray on 1 March 1991 reported no bone or disc lesion. There was an MRI scan in March 1991. The films could not thereafter be located but the report of it noted only "minimal posterior disc bulging at the L5-S1 level". However, in August 1991, Dr McNicol, an orthopaedic surgeon recorded ongoing back pain and concluded that there had been a disrupted lumbo-sacral disc with irritative sciatica.
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9. That ongoing disability led to the plaintiff's discharge from the army in 1996. Despite ongoing episodes of back pain, he continued with normal sporting and other activities. He continued some strenuous activities after leaving the army. Even after the accident he continued some strenuous activities more particularly noted by the Master in his 36 page judgment. The plaintiff stated that he had needed to take painkillers in order to do so.
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10. There was no clinical evidence of any significant disability from back pain between 1991 and the accident. Following the accident there was in 2008, an MRI scan. There is reference in the report of it to an annular tear at L4-5.
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11. At issue was whether the changes observable in 2008 had been present before the accident. Dr Searle, an orthopaedic surgeon, thought that unlikely on the information he had. The plaintiff's medical evidence otherwise supported that opinion.
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12. Dr Pascall, however, upon whom the defendant relied, had a different view. She considered that an annular tear may well have occurred at L4-5 in 1991 and was aggravated by the accident but not caused by it.
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13. The defendant also relied on a Dr Bodel and other medical opinion reviewed by the Master in his judgment. It suffices to note that well before Dr Korber had been engaged, the issue of the damage, if any, caused to the plaintiff's spine was well and truly highlighted as an issue.
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14. Mr Rewell, for the plaintiff, pointed out to the Master that Dr Korber was simply reinterpreting the 2008 scan, expressing a different opinion about it than had been expressed by another radiologist. He could have been asked to consider that other opinion much earlier.
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15. Mr Inglis, for the defendant, submitted that the new report did not raise new evidence. It was simply late evidence.
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16. However, he had to concede that, at least, the plaintiff's relevant experts would need to be referred to Dr Korber's opinions and have the opportunity to comment further. It was apparent too that the plaintiff might wish to qualify a further opinion from an expert independent of those experts who had expressed a view different from that expressed by Dr Korber.
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17. His Honour noted that if the application to admit Dr Korber's report was granted an adjournment a delay of up to a year would be inevitable. This, his Honour noted would clearly engage the kind of deleterious consequence highlighted by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009); [2009] HCA 27; (2009) 239 CLR 175 (Aon). Although the cause for the amendment, in that case, sought at a late stage, was to add a new cause of action, the relevant prejudice identified was substantial delay and wasted costs not only affecting the immediate parties but other litigants awaiting hearing. That prejudice was clearly engaged in this case. Indeed, the fact that the application in this case raised no radical new issue itself tells against the application. If, for example, it had been recently discovered evidence of fraud, the application to admit the evidence would have been a stronger one.
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18. The Master was also referred to Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (6 November 2009). That was a personal injury claim. Leave was sought to rely on additional expert reports which had not been served within the time required by the Court Procedure Rules 2006 (ACT). However, that case, whilst acknowledging the importance of prejudice resulting from a late application to receive expert reports, does not otherwise assist.
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19. His Honour, in our view, correctly and appropriately noted and applied the Rules in accordance with the approach mandated by the Aon case and we agree with his conclusion. The submission that an adjournment of only a "short time" would have been required was disingenuous, to say the least, and ignores the effect on other cases.
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20. There is no substance in this ground of appeal. The evidence was rightly rejected.
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21. These grounds complain, effectively, that the Master took too long to deliver judgment so that the advantage of seeing and hearing the witnesses was lost to him. That assumes that the Master's finding that he found the plaintiff a truthful and accurate witness should be disregarded. That proposition has no merit. There is no indication that the Master lost any memory or note concerning the impression the plaintiff made upon him (see, for example [112] - [115] of his Honour's judgment). The matter was reserved on 15 December 2010. Judgment was handed down on 24 August 2012, 20 months later. Certainly such delay is undesirable but there is nothing to suggest that the delay deprived the defendant of any forensic advantage he otherwise would have enjoyed.
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23. The further contention is, in effect, that the Master should have entertained "real doubt about the veracity" of the plaintiff's evidence. That is a challenge to the Master's opinion that he could rely on the veracity of the plaintiff's evidence. A number of criticisms of that evidence were particularised. The Master had the advantage of observing the plaintiff giving evidence. It was open to him to accept the plaintiff as a witness of truth notwithstanding the criticisms referred to in the defendant's submissions.
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118. I accept the opinion evidence that if it had not been for the car accident the plaintiff's working life would not have been shortened. He was in the years prior to the car accident able to engage in considerable strenuous physical activity including gardening and touch football. His efforts since the car accident to keep up his indoor cricket and golf are admirable, but I accept that some of the activities he has attempted have been foolhardy, including mountain-bike riding over rough terrain, moving heavy furniture and helping with the demolition and removal of an above-ground swimming pool. I accept the specialist opinion evidence that the plaintiff's symptoms and disabilities are likely to increase with age. I prefer that evidence to the opinion of the defendant's doctors to the contrary. However, I am not entirely persuaded that the plaintiff, although he might be justified in doing so, will in fact decide to retire early. He is by character a man of unusual strength of purpose, somewhat Spartan in his reaction to pain. Whether or not he retires early is likely to depend in large measure on his motivation to keep working despite increasing back pain and neck symptoms. I take account of the medical opinion evidence that he may be able to deal with increasing symptoms to some extent by reducing his working hours and perhaps days as he gets older.
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I accept that the plaintiff suffered a neck injury in the motor accident and reject Dr Pascall's evidence that he has made a full recovery from this and that his present neck symptoms are solely work-related.
I accept the evidence that as time goes by the plaintiff will reach a position where he would benefit from physiotherapy. He has had none to date but if his symptoms are bad enough it seems likely to me that he will probably submit to physiotherapy in the hope of reducing his symptoms. He is more likely to continue with alternative medicine including homoeopathy. There is a possibility, fairly minimal, that he may ultimately come to surgery. There is no evidence as to precisely what procedure he might need or what it might cost.
I accept that his capacity to perform some household tasks, and gardening, has been impaired, although I respect the opinion of the doctors who find that a little hard to reconcile with some of the sporting and other activities which emerged during the trial. I am not satisfied that the cleaning expenses which the plaintiff and his partner incurred were entirely due to his accident-related disabilities but I accept that these made some contribution to the decision to incur that expense.
Having said that, I find this an unusual case where the pain and suffering endured by the plaintiff and the interference with his enjoyment of life have been considerably greater than might be assumed from the fact that he has continued throughout with his employment duties, has incurred modest treatment expenses, and has continued with sporting and other physical activities. The fact that he has done so is to his credit but should not be reflected in any reduction in the award for general damages for pain and suffering and loss of enjoyment of life
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25. This is a balanced assessment consistent with his Honour's acceptance of the plaintiff as a witness of truth though acknowledging the force of some of the defendant's contentions.
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26. Exception is taken to the Master not accepting the evidence of Dr Bodel.
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27. The Master referred to Dr Bodel's evidence at [108] and [109]:
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Dr Bodel saw the plaintiff in August 2010, an appointment arranged by the solicitors for the defendant. He found on examination no guarding or spasm in the neck muscles but guarding on the left side at the lumbo-sacral junction. In his opinion the plaintiff had suffered a soft tissue injury to the cervical spine and the lower back in the car accident. The low back injury was a musculo-ligamentous strain and an aggravation of pre-existing degenerative change. He said that there might have been some additional structural damage to the discs at L4-5 and L5-S1 as a consequence of the 2007 injury. Dr Bodel thought that the plaintiff should be prescribed treatment in the form of exercise aimed at strengthening his neck and back and improving core stability. He ought to be able to function near-normally. He was likely to be able to work until normal retirement age. His work did not seem to be of a particularly physical nature and he seemed able to change position frequently as required throughout the working day.
After preparing his first report Dr Bodel was shown the surveillance video. He said that this showed the plaintiff undertaking various activities, all of which were consistent with his presentation at the earlier appointment. The film did not alter Dr Bodel's opinion.
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28. It does not seem to me that Dr Bodel's opinions were rejected. Much of those opinions were speculative, attempting to forecast what may or not happen in the future as did other medical experts. It was clearly open to the Master to take a different view than Dr Bodel did.
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29. The purport of the defendant's submission seems merely to go to the submission that the award of $120,000 for general damages is excessive.
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30. Such an assessment relies very heavily on the impression made by the plaintiff. Paragraph 112 sets out the approach the Master adopted. Whilst the plaintiff had considerable residual capacity as the Master acknowledged, the defendant conceded that $70,000 would not be out of range. We can see no reason why $120,000 should be regarded as out of range (see [124]) having regard to the favourable impression made by the plaintiff.
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31. The Master accepted that the plaintiff would, as a result of his injury be likely to deteriorate further. He might require surgery. He would consume increased medication. To our mind, an allowance of $23,000 is not excessive. It may be generous but it is a discretionary judgment. Error does not appear.
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32. The amount allowed is relatively small. It does not bespeak error. There is no substance in this ground.
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33. It was, we think, a scenario favourable to the defendant that the Master embraced. Such loss was "a possibility" of early retirement enforced by future disability, not a certainty.
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34. The defendant's submissions amounted to an assertion that the "buffer" allowed was excessive.
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35. An approach which provided a lump sum assessment was clearly warranted in accordance with the decision of the High Court in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.
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36. It is correct, as the plaintiff's submission asserts, that this award is for a loss of capacity to earn in the future.
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37. As there is no precise way to calculate the extent to which or the timing for any loss of future earnings which would be produced, a mathematical calculation was impracticable.
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38. Attention was correctly drawn to a number of authorities, particularly those set out in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, [84].
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39. The essence of those decisions is that the future is difficult to predict. If there is impairment of earning capacity the economic loss it will produce will be, in many cases, impossible to calculate with precision. In those circumstances the chance of loss can only be compensated for by the award of a lump sum or "buffer".
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40. The quantification of that sum, as this Court pointed out in O'Brien v Noble [2012] ACTCA 13, must have an apparently rational basis. In this case the Master at [129] - [132] set out his reasons for selecting $150,000 as that figure.
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There is no claim for past loss of earnings, but there is a substantial claim for impairment of earning capacity. Senior counsel for the plaintiff has calculated this component of the claim by taking the plaintiff's present net weekly earnings ($1,958.00 at trial), assuming that the plaintiff will retire at age sixty and that but for the car accident he would have retired at age sixty-five, applying the appropriate multipliers and reducing the figure arrived at by 15% to take account of the vicissitudes of life. That approach leads to a figure of the order of $250,000.00. I am not satisfied that the evidence justifies an award as high as that. The plaintiff may soldier on to age sixty-five notwithstanding increasing back and neck pain. He may deal with the situation by reducing his working hours.
Of course, it is also possible that the plaintiff's employer by that time of his life may insist on his early retirement regardless of the plaintiff's wishes. If because of his increasing disabilities he is no longer performing to the satisfaction of the employer. I must take account of that possibility, in which regard I note also the opinion evidence that because of his injury the plaintiff will find it more difficult than if it had not been for the car accident to find employment in the future should he need to do so.
The plaintiff presently has the capacity, which he exercises, to earn about $2,000.00 a week after tax. The present value of his capacity to earn that income to age sixty-five is of the order of $1.7m. That is the present value of the plaintiff's earning capacity, and I must accept that he has suffered some impairment to it. The imponderables are such that it would be an artificial approach to attempt a mathematical calculation of the present value of the plaintiff's likely future loss. Nevertheless I am satisfied that his earning capacity has been reduced and that this is likely to be reflected in actual financial loss to him in the future.
Counsel for the defendant submitted that I should allow what he described as a buffer for future economic loss. "Buffer" is I think the wrong word but it does not seem to me that I can on the evidence do better than allow a broad rounded figure for loss of earning capacity. The figure I select is $150,000.00. This takes into account, as well as everything else, the vicissitudes of life.
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41. That figure falls well below the more pessimistic scenario the plaintiff's counsel proposed which would, if adopted, have led to an award of $250,000. The total value of the plaintiff's earning capacity for the future to age 65, was calculated at $1.7m. The plaintiff's submission assumed a loss of just under 15%. The award assumed a loss of less than 9%. The award cannot, in our view, be regarded as beyond that which can be perceived as reasonable in the circumstances. The loss of a chance itself has a value (see Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638). We should stress that the calculation of precise percentages of the chance of harm is not required. It also depends on the trial judge's assessment of the character of the plaintiff. It, no doubt, also depends on the likely reaction of an employer to declining performance where that decline results from the subject injury. That is necessarily a judgment based on the experience and common sense of the judicial officer.
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43. It follows that the appeal should be dismissed with costs.
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I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
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Counsel for the Respondent: Mr K Rewell SC with Mr R Clynes