SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCOURT OF APPEAL

Case Title: Singh v Cooper

Citation: [2016] ACTCA 55

Hearing Date: 9 May 2016

Decision Date: 11 October 2016

Before: Refshauge ACJ, Burns and Jagot JJ

Decision: 1. The appeal be dismissed.2. The appellant pay the respondents’ costs unless either

party applies within 7 days for any other order setting out the reasons for that other order.

Catchwords: PERSONAL INJURY – assessment of damages – appeal from single judge of Supreme Court – primary judge awarded damages for future provision of unpaid services – primary judge awarded damages for future economic loss – primary judge assessed future economic loss as a buffer – whether damages should have been assessed on an arithmetical basis – adequacy of awards of damages – no error demonstrated by primary judge – appeal dismissed.

Legislation Cited: Supreme Court Act 1933 (ACT) s 37E

Cases Cited: Australian Capital Territory v Crowley & Ors (2012) 7 ACTLR 142Barton v Samarkos Earthmoving Pty Ltd [2004] ACTCA 6Dearman v Dearman (1908) 7 CLR 549Fox v Percy (2003) 214 CLR 118 Fry v McGufficke [1998] ACTSC 20 Fry v McGufficke [1998] FCA 1499Gamser v Nominal Defendant (1976-77) 136 CLR 145 Gaundar v Hogan [2014] ACTCA 4Griffiths v Kerkemeyer (1977) 139 CLR 161Howard v Aikman (2015) 74 MVR 184Huen v Hyland [2004] ACTCA 5Lounge v Deborah Wentworth-Shields [2002] ACTCA 2 Malcolm Ecob and Marilyn Ecob t/as Black Swan Coffee O’Brien Malec v JC Hutton Pty Ltd (1990) 169 CLR 638Medlin v State Government Insurance Commission (1995) 182 CLR 1O’Brien v Noble (2012) 6 ACTLR 132Palma v Nominal Defendant (2016) 74 MVR 411Penrith City Council v Parks [2004] NSWCA 201Singh v Cooper & Anor [2015] ACTSC 243Suffolk v Meere [2002] ACTCA 1

Texts Cited: Harold Luntz, Assessment of Damages for Personal Injuries and Death: General Principles (LexisNexis Butterworths, 2006)

Parties: Aneeta Singh (Appellant)

Michelle Cooper (First Respondent)

Insurance Australia Limited trading as NRMA Insurance (Second Respondent)

Representation: CounselMr A Black SC with Mr D Crowe (Appellant)

Mr R Crowe SC (First and Second Respondents)

SolicitorsUnited Legal (Appellant)

Sparke Helmore (First and Second Respondents)

File Number: ACTCA 39 of 2015

Decision under appeal: Court: ACT Supreme Court

Before: Mossop AsJ

Date of Decision: 21 August 2015

Case Title: Singh v Cooper & Anor

Citation: [2015] ACTSC 243

Court File Number: SC 556 of 2014

THE COURT:

1. The appellant, Aneeta Kayla Singh, was injured in a motor vehicle accident on 25 March 2013. She brought proceedings in the Supreme Court for damages. The respondents admitted liability and the matter proceeded before Mossop AsJ as an assessment of damages. On 21 August 2015, his Honour ordered that judgment be entered for the appellant in the sum of $311,603 plus interest and costs. His Honour awarded damages for future provision of unpaid services (Griffiths v Kerkemeyer (1977) 139 CLR 161) in the sum of $50,000, and for future economic loss in the sum of $85,000.

2. The appellant appealed from the awards made by Mossop AsJ with respect to future provision of unpaid services and future economic loss. The Notice of Appeal filed by the appellant also challenged the award for past economic loss, but that aspect of the appeal was abandoned at the hearing.

3. The grounds of appeal, as ultimately pursued by the appellant, were:

(a) his Honour erred in declining to assess the relevant damages on an arithmetical basis;

(b) his Honour’s assessment of the appellant’s earning capacity and capacity for future domestic duties was inconsistent with the weight of the evidence;

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(c) his Honour’s assessment of damages for future loss of earning capacity was inconsistent with his findings about the accident’s ongoing impact on the appellant’s capacity for full-time work; and

(d) his Honour erred in rejecting the evidence that the appellant’s prognosis is poor.

The decision of Mossop AsJ

4. The appellant did not challenge any of the findings of basal facts made by Mossop AsJ, and as such we will set out the facts of the matter as recited by his Honour in his reasons.

5. At the time of the hearing before Mossop AsJ, the appellant was 39 years old. She grew up in New Zealand and Fiji. She finished school in 1993 and then commenced a Diploma of Health Science at Auckland University of Technology, which would have qualified her to become a nurse. She performed well academically, but left the course during the clinical training period. She then assisted her mother in administering her father’s business interests for a period of about eight months. She then obtained a short-term casual position with a bank. She did not enjoy that work, and returned to assist her mother for approximately another two months. In 1998 she commenced and completed a one year Diploma in Travel, Tourism and Business Technology. While completing that course she obtained work with Retail Financial Services as an outbound credit controller.

6. When the appellant finished her diploma, she worked full-time for Retail Financial Services until March 1999. In March 1999, she obtained a three month contract with Toyota Financial Services. That contract was extended for a further three months. She then obtained employment as a credit officer with GE Finance. She became a team leader but was made redundant in April 2000 when that organisation transferred its credit services from Auckland to Melbourne. She then obtained a position with Air New Zealand as a credit controller. After 12 months she was appointed to a position described as “Financial Analyst – Terminal Services”. In this position she received on-the-job training in accounting. The experience which she gained in this role convinced her that she did not want to be an accountant.

7. In November 2002, the appellant obtained employment as a credit manager with L’Oreal at a higher wage than she had been earning with Air New Zealand. Between November 2002 and December 2005 there was a period during which she suffered from depression, which caused her to be off work for three months. She left her employment with L’Oreal because of limited opportunities. In December 2005, she obtained employment with Genesis Energy as a corporate credit manager. She stayed with Genesis Energy until August 2007, at which time she was made redundant because of a restructure of the organisation.

8. From April 2008 until March 2009, the appellant was employed on a contract by Fleet Partners, a vehicle leasing business. In March 2009, she married her husband, an industrial chemist, at a ceremony in India. Between March 2009 and February 2010 she took time off work and assisted her husband with his relocation to Tokoroa in New Zealand. During this period she took short-term contracts doing credit control for two finance companies. In February 2010, she was employed as the accounts receivable team leader in a finance company.

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9. In August 2010, the appellant moved to Australia to take up a position with Airservices Australia as its billing and credit manager. She commenced this position in September 2010. In December 2010 her husband followed her. He had some initial difficulty in obtaining employment within his field, but in about April 2012 he obtained employment as an industrial chemist in Sydney, working there from Monday to Friday each week before returning to Canberra on the weekends.

10. In September 2012 the appellant commenced maternity leave. Her son was born in October 2012. The appellant initially planned to take 12 months maternity leave. As Mossop AsJ observed, the first year of her son’s life was difficult for both him and his parents. In November 2012 the appellant was diagnosed with postnatal depression. Her mother-in-law assisted her after the birth of her son until she, the mother-in-law, returned to India in mid-January 2013. At this time the appellant’s mental condition worsened and in February 2013 she was recorded as having a depressed mood, including suicidal thoughts. The appellant was admitted to Calvary Hospital on 10 February 2013 and remained there until she was discharged on 20 February 2013. Later that month she and her son were admitted to the Queen Elizabeth II Family Centre, a hospital for mothers and babies, where she stayed for four nights. After discharge she continued to receive assistance from medical practitioners and from the staff of the Belconnen Mental Health Team.

11. Notwithstanding her initial intention to take 12 months of maternity leave, by March 2013 the appellant, having regard to her mental state, decided that it was important for her to attempt to return to work. She returned to work on 25 March 2013. At the end of her first day back at Airservices Australia she was driving home when the accident occurred. The car she was driving was struck from behind, pushing her into the opposite lane where the front of her car was then struck by an oncoming car. The force of the impact was significant. After the accident, the appellant telephoned her husband who collected her from the scene and took her home.

12. The next day the appellant attended the West Belconnen Health Cooperative where she consulted a general practitioner, Dr Vishaw Joshi, who recorded “she is feeling pain in her left wrist, right elbow and upper thoracic region. no neck pain. no headache, nausea or vommitting [sic].” Over the next week the appellant started to suffer pain in her neck and lower back. On 2 April 2013, the doctor recorded “...complaint of pain in neck and shoulders and headache constant with nausea which gets worsened on bending. no numbness or weakness. she still has pain in right elbow and left wrist.” On 5 April 2013, the appellant was sent for a CT scan of her brain which found no abnormalities. During this time she also consulted with Belconnen Mental Health Team in relation to nightmares she started having about the accident.

13. On 18 April 2013, the appellant again attended the West Belconnen Health Cooperative and this time saw another general practitioner, Dr Anthony Meyer, who recorded “MVA involved R shoulder and neck, left knee and R foot. Dull headache, getting better. CT brain NAD. Lower back pain last few weeks. Difficulty caring for baby due to soreness”. On the same day she also consulted a nurse regarding her anxiety and depression, and as a result her antidepressant medication was changed to mirtazapine.

14. On 23 April 2013, the appellant and her husband along with their son travelled to New Zealand for a funeral and stayed there for a week.

15. On 8 May 2013, the appellant was referred by Dr Meyer to Canberra City Osteopathy and later that month attended her first appointment with a physiotherapist, David Howse.

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Mr Howse treated the appellant’s lower back and whiplash injury and prescribed her home exercises which she practised without improvement. During that period the appellant reported suffering pain on the right-hand side of the lower back each day which grew more intense with prolonged sitting. On 13 May 2013, a nurse at West Belconnen Health Cooperative referred the appellant to Belinda Radnidge, a counsellor. The appellant returned to work on 20 May 2013 and continued to receive physiotherapy.

16. In July 2013, the appellant’s husband and son left to spend seven weeks in Fiji. The appellant reported that her relationship with her husband was strained at this point due to the stress of him looking after a sick child and sick wife. Shortly after the appellant’s husband had made the decision to travel to Fiji, the appellant saw Ms Radnidge and described having suicidal thoughts and worries about her work and being separated from her son. The appellant joined her family in Fiji in August 2013 for a few weeks, however, this did not help her relationship with her husband and she was considering separation.

17. The appellant continued to consult a psychiatrist working for the Belconnen Mental Health Team. The appellant also had a series of appointments in August and September 2013 including two with medicolegal consultants arranged by the second respondent. During one of these consultations, Dr Matthew Paul contacted the appellant’s husband against her will because he was concerned about her safety.

18. Throughout October and November 2013, the appellant’s son continued to have medical problems which required consultation with specialist doctors and he underwent a medical procedure in November 2013.

19. On 18 November 2013, the appellant was involved in a minor motor vehicle accident in which she clipped a motorcyclist and was cautioned by police. The appellant reported that she was upset as she was at fault and the incident had brought back memories of the accident.

20. On 2 December 2013, the appellant attended her general practitioner, describing herself as being depressed and run down largely due to what she and her husband were going through over their son’s condition. From early December 2013 until April 2014 she did not attend work in order to assist with her son’s health problems and the consequential difficulties with her husband. The appellant did not make a claim for economic loss for this period away from work.

21. The appellant commenced discussions with her immediate supervisor at Airservices Australia, Peter Burgess, regarding her return to work in early April 2014. The appellant’s evidence was that she had been away from work for five months and that her symptoms were getting worse, with intense pain in her lumbar spine, neck and shoulders. She asked Mr Burgess if she could return to work on reduced hours, and he had said it was fine and that she should let him know what sort of hours she was talking about.

22. Mr Burgess gave evidence that he had many conversations with the appellant about how he could facilitate her return to work and could not recall whether it was he or the appellant who broached the possibility of part-time hours. His evidence in regard to the discussion of part-time hours was “[the appellant] was talking about her son attending school across the road into the childcare facility, and I believe he was having some difficulties adapting and was finishing at about 3 pm each day, so [the appellant] needed to be there to collect him”.

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23. On 17 April 2014, Dr Meyer certified that the appellant was fit for full-time work from 22 April 2014. On 22 April 2014, the appellant commenced a part-time position of 55 hours per fortnight, working from 9 am until 3 pm with a half an hour lunch break. The appellant reported that her symptoms became worse with increased pain in her lumbar spine, neck and right shoulder, which were exacerbated by lifting. Mr Burgess gave evidence that the appellant reported to him that she was still feeling discomfort.

24. On 2 June 2014, the appellant disclosed concerns about the long-term security of her employment to a nurse at her Health Cooperative, explaining that she perceived that she was not performing at the same level as she had previously due to the various disruptions to her employment. While she was unable to perform at the level she had previously and some minor issues were raised with her by her superiors, Mr Burgess and David Kille, Mossop AsJ noted that the appellant’s perception of her work situation was more adverse than the reality warranted. As a valued employee, her managers remained supportive and accommodated any ongoing difficulties that she had.

25. Following travel to New Zealand in August 2014, the appellant returned to full-time hours on 27 August 2014. While problems with the appellant’s elbow, foot and headaches had improved, she continued having problems with her neck and back. The appellant also reported that the nightmares following the accident had resolved by the end of 2013.

26. Throughout 2014, the appellant’s mental health improved significantly, with less engagement with the Crisis Assessment and Treatment Team and an improvement in her relationship with her husband. The appellant did report still having concerns about her job and future at Airservices Australia.

27. On 14 February 2015, the appellant consulted general practitioner, Dr Kingsley Okolie, who recorded:

Complained of lower back and neck pains; The pain is said to be radiating to the limbs. She had MVA few years ago, and had a whip-lash injury ... She returned to full working hours in August, 2014, but things have not been working well since then. She had tried panadol, Panedeine Forte, NSAIDs, with no much improvement [sic].

The appellant was certified as fit to work six hours per day five days per week.

28. Mossop AsJ noted that the respondents suggested that the Court should treat the reduction in hours with a degree of caution when assessing the appellant’s ongoing capacity for paid employment due to a coincidence between a letter from the appellant’s solicitors on 13 February 2015, a visit to Dr William Patrick the same day and a visit to her general practitioner the next day certifying a reduction in hours. The letter from the appellant’s solicitors disclosed an intention to recast the manner in which the claim for economic loss was made. This was said to be because the appellant was struggling to work more than 27–30 hours per week while still continuing to receive a full-time wage, and the appellant felt that this was unfair to her employer. Dr Patrick recorded that “she has been struggling and the best she could achieve was working between 27 and 30 hours per week usually.”

29. In his oral evidence, Mr Kille said that the appellant had told him that, prior to reducing her hours, she had been struggling to perform full-time hours and that in contrast to her performance prior to going on maternity leave, she had on occasions left work early.

30. Mossop AsJ accepted the evidence of the appellant that her reduction in working hours was caused by her ongoing back and neck pain arising from the accident. Mossop AsJ also accepted that the appellant continued to suffer pain and difficulties while working

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and that having regard to the appellant’s pre-accident performance at work and her persistent anxiety in relation to her work performance, the certification on 14 February 2015 reasonably reflected her work capacity at that point.

31. Mossop AsJ referred at length to the medical evidence before him. The appellant did not suggest that his Honour’s summary of the medical evidence was flawed.

32. Dr Matthew Paul, an occupational physician, saw the appellant on 17 September 2013 and provided a report dated 30 September 2013 and a supplementary report dated 6 December 2013. At the time Dr Paul saw the appellant, the appellant was working full-time. Dr Paul said that as a result of the accident the appellant suffered aggravated underlying cervical spine degeneration and developed nerve root irritation resulting in persistent right-sided shoulder pain. She also suffered soft tissue injuries to her lower limbs and her right elbow from which she had recovered. He was also satisfied that the accident aggravated pre-existing degenerative changes to the appellant’s lumbar spine, which caused low back pain. Dr Paul believed that the appellant may benefit from a multidisciplinary pain management program. The appellant exhibited some fear avoidance behaviour due to her chronic pain.

33. Dr Paul considered the appellant was capable of returning to normal activity at home, and that she was fit to perform her normal duties and hours. He did not believe the appellant required any specific personal or domestic assistance. He did not consider that her injuries had stabilised.

34. Dr Champion, a rheumatologist and pain specialist, saw the appellant on 25 February 2014, when she was not working. Dr Champion diagnosed an upper thoracic spinal pain syndrome as well as a lumbosacral spinal pain syndrome with deep somatic referred pain with right L5 and S1 radiculopathy. He said that the appellant was “clearly unfit for work and has been so since November 2013.” He considered her prospects of returning to her former employment were poor, but in years to come she “might well make some recovery, sufficient to re-enter the workforce at least part-time.”

35. A clinical psychologist, Mr McMahon, saw the appellant on 19 December 2014. His diagnosis was “Major Depressive Disorder, Recurrent” and “Chronic Pain Associated with both Psychological Factors and a General Medical Condition”. He considered the appellant might benefit from a chronic pain program.

36. Dr Patrick, a general and vascular surgeon and trauma surgeon, examined the appellant on 13 February 2015. He opined that the accident caused hyperextension/flexion and rotational injury to the appellant’s cervical spine and aggravation of pre-existing but minimally symptomatic spondylotic change at C4/5 and C5/6 levels of the cervical spine. The appellant also suffered injury to the thoracic and lumbar spine. He expressed the view that it would be sustainable if the appellant worked 24 hours per week, spread over three or four days. He considered it unlikely that she would be able to return to full-time work in her current position in the foreseeable future.

37. Dr Saboisky, a consultant psychiatrist, saw the appellant on 17 February 2015. At that time the appellant was working full-time, but had just been certified as fit for reduced working hours. Dr Saboisky said there was “no psychiatric reason why the appellant could not work full-time”. He considered her prognosis to be reasonable, and thought that her reduction in work hours was attributable to the stress of her impending court case.

38. Dr Khurana, a brain and spine surgeon, saw the appellant on 5 March 2015. He concluded that the appellant suffered an aggravation of underlying but asymptomatic

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cervical spondylosis and lumber spondylosis in the accident. He believed that the appellant’s physical/neurological condition was not as significant as her psychological condition, and that from a physical perspective she was fit for part-time work.

39. Mossop AsJ discounted to some extent the opinion of Dr Saboisky because he was not aware of the full clinical picture, but he did accept Dr Saboisky’s opinion that the pendency of the court proceedings was a source of stress and anxiety for the appellant, and that her psychological condition may improve once the proceedings were completed. That, in turn, may assist the appellant with managing her pain.

40. Mossop AsJ did not accept the opinion of Dr Patrick that it would be reasonable to expect the appellant to only work 24 hours per week, as this was less than the appellant was working when Dr Patrick saw her and less than she had worked at any time after she returned to work following the accident. Mossop AsJ considered Dr Patrick’s prognosis to be “too pessimistic and, in any event, one which could not be relied upon as a long term estimate of the [appellant’s] work capacity.”

41. His Honour did accept, based upon the reports of Dr Patrick and Dr Khurana, that the accident had caused pain which continued to affect the appellant’s capacity for full-time work. His Honour accepted that Dr Champion was of the opinion when he saw the appellant in February 2014 that her prognosis was poor and that she was unlikely to return to work, but that events had not transpired that way. Whilst the appellant was not working when Dr Champion saw her, she had subsequently returned to work. Mossop AsJ did not accept “that as things presently stand” the appellant’s prognosis was poor.

42. With respect to the medical evidence, and the appellant’s claim for future economic loss, Mossop AsJ concluded at [91]-[95]:

In summary, the plaintiff is stuck with an aggravation of underlying degenerative changes in her back and neck which are presently generating chronic pain and which have the potential to continue to do so. The medical evidence only provides a limited basis on which to assess the extent to which the plaintiff’s medical conditions will be productive of financial loss. All parties appeared to accept that the ultimate conclusion will be significantly influenced by the Court’s assessment of the plaintiff and the extent to which she will go to work notwithstanding that she suffers from neck and back pain.

My conclusion is that the plaintiff will continue to suffer from neck and back pain. It is not possible to say on the basis of the evidence whether the physical conditions giving rise to that back pain will improve or deteriorate over time. Similarly, it is not possible to say whether the psychiatric aspects of pain management will improve or deteriorate over time. Medical intervention such as through a pain management course may improve the plaintiff’s ability to cope. On the other hand, other matters in her life which impact upon her ability to cope are likely to also affect her ability to manage pain.

In my view the appropriate way of dealing with the question of economic loss in these circumstances is to deal with the matter by way of a buffer for economic loss which recognises the prospect that over the many years of her working life ahead there may be times where the injuries that she has suffered are causative of a need to take time off work that she would not otherwise take. It also recognises that her ability to cope with pain may be improved by less difficult circumstances in her personal life and also that her motivation and resilience may be affected if she no longer has available to her the present job which she enjoys and which is supportive of her condition and particularly suited to her skills. There are simply too many uncertainties to permit future economic loss to be dealt with in any way other than by way of a buffer. The manner in which I have arrived at the quantum of the buffer is similar to that contended for by the defendants. The defendants submitted that a buffer of $50,000 should be awarded equivalent to a loss of income of approximately $300 per week over a two-year period adjusted upwards somewhat to take into account the

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possibility that the level of disability might be greater. In my view, a buffer of $85,000 would more appropriately reflect the likely level of loss having regard to the long period with which the Court is dealing. This is the equivalent to the difference between her full-time net salary and that payable for working 30 hours per week over a period of six years discounted at 3%. This, in my view, gives better recognition to the long period in which the plaintiff may continue to suffer from pain arising from her injuries and the uncertainties surrounding how those injuries may affect her having regard to that long period.

I do not accept that the future loss of income should be calculated on the basis of a one third loss of capacity up until the age of 67 less 20% for vicissitudes. In my view that not only overstates the level of likely disability but also assumes too great a degree of certainty as to both her experience of pain and the income loss that it generates over the balance of her working life.

Having regard to the fact that the matter is dealt with by way of a buffer I do not think it is appropriate to make any additional discount of the award on the basis of the vicissitudes of life.

43. Concerning the other area of contention on this appeal, the claim for damages for future provision of unpaid services, Mossop AsJ said at [101]:

In relation to the future, the defendants submitted that an amount of $50,000 was appropriate. This was based on a claim of three hours’ assistance per week gradually reducing over time. On the other hand the plaintiff submitted that an award of $165,375 was appropriate. This was based upon 26 years of domestic assistance at three and a half hours per week. The parties were in agreement that a rate of $35 per hour was appropriate. The evidence established that prior to the accident the plaintiff was responsible for housework but that since the accident her husband is required to perform it. The significant issue between the parties was how long the domestic assistance will be required for. In addition to the uncertainties surrounding the plaintiff’s condition the defendants also submitted that having regard to the fact that the plaintiff’s husband was contemplating going into business it was likely that even in the absence of any injury to the plaintiff the couple would engage domestic assistance to assist with those tasks which the husband was performing because of the plaintiff’s injury. As with future economic loss there are very significant uncertainties in relation to the future. The award proposed by the defendants is the equivalent to three hours per week over a period of ten years. In my view the amount of $50,000 represents an appropriate award of damages under this head even though it is not possible to say that it will be required in this way.

The nature of the present appeal

44. The present appeal is brought under s 37E of the Supreme Court Act 1933 (ACT). The principles governing such appeals are well settled. The appeal is by way of rehearing: Huen v Hyland [2004] ACTCA 5; Australian Capital Territory v Crowley & Ors (2012) 7 ACTLR 142 at 146. In such an appeal, whilst the Court is obliged to conduct a “real review of the trial” and give “the judgment which in its opinion ought to have been given at first instance”, the Court cannot simply substitute its opinion for that of the first instance decision maker; error must be demonstrated before this Court may intervene: Dearman v Dearman (1908) 7 CLR 549 at 561, quoted with approval in Fox v Percy (2003) 214 CLR 118 at 125 (Fox v Percy). A further limitation upon an appeal such as the present was referred to by Dowsett J (with whom Burns J agreed) in Gaundar v Hogan [2014] ACTCA 4 at [6]:

[S]ome aspects of a case may allow for more than one “correct” answer, although the “correct” answer may fall within a range. Again, an appellate court will not intervene to substitute its view for that of the primary Judge, unless error is first shown. See also Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [22] – [31]. An award of damages for personal injuries may contain numerous components. Some may be capable of precise calculation whilst others may not be so easily calculated. In some

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cases, there is a risk that mathematical calculations may be used to make a mere guess appear to have a mathematical basis.

45. Dowsett J went on to say at [7]-[9]:

In Precision Plastics Pty Ltd v Demir (1975) 49 ALJR 281 Gibbs J said at 285 (McTiernan, Stephen and Murphy JJ concurring):

It is unnecessary to discuss at length the principles that govern an appellate court in the performance of its task when it is called upon to review an assessment of damages for personal injuries. Whether the assessment was made by a judge or a jury the court of appeal will not interfere simply because it would have awarded a different figure had it tried the case at first instance. Where the assessment was made by a judge, and it has not been shown that he acted on any error of principle or misapprehension of the facts, the appellate court will only intervene if satisfied that the judge has made a wholly erroneous estimate of the damages suffered.

In Wilson v Peisley (1975) 50 ALJR 207 at 209 Barwick CJ said:

The setting aside of an award of damages in a trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small, and therefore of itself a demonstration of error though otherwise undisclosed. The less ponderable the elements of the damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of the trial not blemished by error or irregularity.

In Gamser v Nominal Defendant (1977) 136 CLR 145 at 159 Aickin J (Gibbs and Stephen JJ concurring) endorsed the remarks made by Barwick CJ in Wilson v Peisley and cited above. I should say, however, that at 149 Gibbs J seems to have deprecated the use by Barwick CJ of the word “outrageous”.

46. In Fox v Percy, the plurality (Gleeson CJ, Gummow and Kirby JJ) described the requirement of such an appeal at [25]:

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:

"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."

As this Court there said, that approach was "not only sound in law, but beneficial in ... operation".

(citations omitted)

47. Later, their Honours continued at [28]-[29]:

Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not,

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and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(citations omitted)

The challenge to the award for future loss of earning capacity

48. Appeal ground (a) raised the issue of Mossop AsJ assessing damages for future economic loss by way of a buffer. Appeal ground (b) raised the adequacies of the award for future economic loss made by his Honour.

49. The appellant referred generally to the evidence of her work and health history, as set out above. In particular, she referred to the following matters:

(a) the appellant was absent from work on maternity leave from 17 September 2012 and following the birth of her son she experienced significant psychological symptoms and substantial difficulties with the care of her son, who has his own medical problems;

(b) the appellant initially planned to be away from work for 12 months on maternity leave;

(c) as a result of her psychological issues in March 2013, she resolved to go back to work;

(d) after the accident the appellant returned to work in May 2013 and then continued to work full-time until December 2013;

(e) from December 2013 until April 2014 the appellant took leave from work for reasons other than the injuries she had sustained in the accident;

(f) from April 2014 she worked 27 and a half hours per week until 27 August when she resumed full-time hours. Mossop AsJ concluded that the appellant’s decision to work part-time hours during this period was not connected to her injuries. That finding is not challenged in this appeal;

(g) the appellant gave evidence that when she resumed working full-time in August 2014 there had been no improvement in her physical condition, and the reason she returned to full-time hours was because she was having difficulty coping with her work load in the time available as a part-time employee;

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(h) in February 2015 the appellant’s work hours were reduced to 30 hours per week in consultation with her general practitioner because she was having difficulties coping with the pain; and

(i) the appellant’s supervisor, Mr Kille, confirmed that the appellant was having difficulty in coping with full-time hours at that time.

50. The appellant noted that, after reviewing the medical evidence, Mossop AsJ accepted that the proceedings before him were a source of stress and anxiety for the appellant, and that her psychological condition may improve once the proceedings were concluded. This, he said, may in turn assist her in coping better with managing her pain. The appellant accepted that, concerning her physical injuries, Mossop AsJ:

(a) found that the motor vehicle accident had caused pain which continued to effect the appellant’s capacity for full time work;

(b) found that the appellant suffered from cervical and thoracic pain syndromes;

(c) recited (and implicitly found) that Dr Paul, Dr Patrick and Dr Khurana had accepted the validity of the appellant’s complaints of pain and provided a reasoned basis for explaining the aggravation of underlying cervical and thoracic degenerative changes;

(d) found that the appellant was “struck with” an aggravation of underlying degenerative changes in her back and neck “...which are presently generating chronic pain and which have the potential to continue to do so”; and

(e) concluded that the appellant will continue to suffer from neck and back pain.

51. The appellant submitted that Mossop AsJ’s subsequent finding was inconsistent with the above findings. In particular, the appellant indentified the following from his Honour’s reasons as inconsistent with the above:

“92. My conclusion is that the plaintiff will continue to suffer from neck and back pain. It is not possible to say on the basis of the evidence whether the physical conditions giving rise to that back pain will improve or deteriorate over time. Similarly, it is not possible to say whether the psychiatric aspects of pain management will improve or deteriorate over time. (emphasis added)

...

93. In my view the appropriate way of dealing with the question of economic loss in these circumstances is to deal with the matter by way of a buffer for economic loss which recognises the prospect that over the many years of her working life ahead there may be times where the injuries that she has suffered are causative of a need to take time off work that she would not otherwise take.”

52. The appellant’s written submission appeared to suggest that Mossop AsJ, in the above extract, had made a finding that the appellant’s physical condition was likely to improve. In the course of oral submissions the appellant moved away from any such suggestion, and rightly so. The extract from the reasons of Mossop AsJ quoted above acknowledged that there was no evidence that the appellant’s physical condition was likely to improve.

53. In oral submissions, the appellant adopted a more nuanced approach. The starting point of the appellant’s oral submissions was that at the time of trial she was working part-time, 30 hours per week. This equated to a net loss of $300 per week. The evidence of both neurosurgeons, Dr Patrick for the appellant and Dr Khurana for the respondents, was to the effect that the appellant was only fit for part-time employment. The appellant

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submitted that the sum allowed by Mossop AsJ equated to allowing a sum of a little less than $300 per week for a period of only six years. This indicated, the appellant submitted, that his Honour must have found, albeit implicitly, that there was a likelihood of improvement in the appellant’s condition in the future. This, she submitted, was an error because there was no evidence to support such a finding.

Assessing future economic loss as a buffer

54. The first issue which arises is whether it was permissible for Mossop AsJ to assess damages for future economic loss in the way he did.

55. We were provided by the appellant with two authorities of this Court concerning the award of damages by way of a buffer. In Suffolk v Meere [2002] ACTCA 1 (Suffolk v Meere) the Master awarded a plaintiff damages for injuries sustained in a motor vehicle accident. The Master awarded approximately $340,000 for future economic loss, which he described as a “buffer”. He arrived at that figure by calculating the plaintiff’s loss to age 65 on a complete loss of earning capacity basis, and then discounting that sum by 50 per cent “to take into account his significant residual capacity.”

56. The appellant in Suffolk v Meere submitted that the Master “had fallen into error in failing to adopt a reasoned, mathematical assessment of the damages for this component of the appellant’s loss as required in Gamser v Nominal Defendant (1977) 136 CLR 145” (at [31]). Miles CJ did not accept that the Master had awarded a “buffer” at all (at [6]):

But on the Master’s view there was significant residual capacity for work on the part of the plaintiff together with a likelihood that his psychological condition would improve substantially after the end of the litigation. The possibility that the plaintiff might be able to return to work within his capacity if he so chose was such that the Master thought that the figure should be reduced (“discounted”) by half to $340,000. That was not a buffer or hedge to provide compensation for the unlikely event that the plaintiff’s injury would result in total or partial employment at some unpredictable time in the future. It was the best the Master could do to put a monetary value on the plaintiff’s loss of future earning capacity.

57. Crispin P and Higgins J (as his Honour then was), in a joint judgment, accepted that the approach taken by the Master was not “purely intuitive”, but found that the Master had made errors in his reasoning process, particularly that the 50 per cent reduction was “greater than warranted”.

58. The second case to which the appellant referred was Malcolm Ecob and Marilyn Ecob t/as Black Swan Coffee Lounge v Deborah Wentworth-Shields [2002] ACTCA 2 (Ecob v Wentworth-Shields), a decision handed down by the Court of Appeal about three weeks after the decision in Suffolk v Meere. The plaintiff in Ecob v Wentworth-Shields was awarded damages for personal injury, including a global component for past and future economic loss, which was assessed on the basis of an ongoing loss of $100 per week for 25 years. On appeal the appellant (the defendant in the proceedings below) submitted that there had been no evidence before the Master to establish that a loss of that amount per week had been suffered, or that it would be sustained for the period allowed by the Master. The appellant relied upon the statement of Stephen J in Gamser v Nominal Defendant (1977) 136 CLR 145 (Gamser v Nominal Defendant) at 149:

[S]o long as awards of damages for personal injuries are to be assessed at first instance by judges rather than by juries, with the accompanying advantage of the existence of stated reasons, those reasons should condescend to some degree of particularity concerning the process by which the particular award of damages has been arrived at ... An award of damages is not, nor should it ever be, arrived at intuitively. Only if it were would particularity as to its component parts be otiose; and if an award is to be the result of a

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process of reasoning, often quite complex, that process should be exposed, both for the satisfaction of the parties and for the enlightenment of appellate courts should there be an appeal.

59. After noting that the Master had been satisfied that the plaintiff had suffered and would continue to suffer economic loss, the majority (Crispin P and Gray J) said at [31]:

It is true that the evidence did not permit the Master to make a precise calculation as to the quantum of loss so sustained. However, a court is not relieved from the duty of assessing damages merely because they are not amenable to precise calculation or because the task is otherwise fraught with difficulty: see, for example, Redden v Forde (unreported, Supreme Court of the ACT, Miles CJ, Crispin and Ryan JJ, 27 May 1998) and Lunz, Assessment of Damages for Personal Injury & Death, (4th edition), p 121. Whilst, as Stephen J pointed out in Gamser, a Court should not forsake a sound reasoning process for a purely intuitive approach, a judge may sometimes encounter situations in which he or she may feel that there is little more than intuition to rely upon. When the evidence does not permit the magnitude of the plaintiff’s loss to be determined with certainty, the judge or master must do the best he or she can to assess damages on the limited evidence available. That seems to have been what the Master was required to do in the present case.

60. We digress for a moment to consider the decision in Gamser v Nominal Defendant, which formed the basis of the appellant’s submission in Ecob v Wentworth-Shields. Gamser v Nominal Defendant was a case where the primary judge gave a judgment for a global sum in a personal injury case, without attempting to break down that sum into amounts attributable to the heads of damage. What emerged from the judgment of Stephen J is the undesirability of a purely intuitive assessment of damages as a global sum by a judge sitting without a jury. In his reasons, Stephen J, with whom Gibbs J agreed, referred to the importance of a primary judge exposing their reasoning and the basis for arriving at the determined sum for each main head of damage “both for the satisfaction of the parties and the enlightenment of appellate courts should there be an appeal.” His Honour went on to say, at 149-50:

So long as compensation takes the form of a lump sum award, arrived at by an evaluation of evidence and by processes of reasoning, there must necessarily be involved some assessment of each item of detriment and some process of computation in order to arrive at the ultimate sum to be awarded. There will very often be detriments suffered or risks of detriment to which a party has been exposed which are incapable of precise quantification. In such cases estimates must suffice and the notion that some false impression of precise mathematical accuracy may be given can readily be dispelled by a few words of explanation. There is no occasion to abandon altogether the task of explaining the components of the award.

61. The statement of Stephen J in Gamser v Nominal Defendant does not, in our opinion, mandate a mathematical approach to the assessment of damages for future economic loss. Such an approach is preferable, where possible: Howard v Aikman (2015) 74 MVR 184 (Howard v Aikman). The comments of Stephen J, however, were directed to the necessity of adopting a transparent and reasoned approach based upon the evidence.

62. Some later decisions of this Court should be considered. In O’Brien v Noble (2012) 6 ACTLR 132, the Court (Refshauge, Penfold and North JJ) quoted with approval the following passage from Fry v McGufficke [1998] ACTSC 20 (per Miles CJ, Gallop and Crispin JJ) at 146:

It was submitted that the Master had fallen into error in assessing damages for past and future economic loss on the basis of an intuitive rather than an arithmetical approach. Counsel for the plaintiff submitted that it was preferable to adopt the latter approach where that was practicable. As a matter of general principle that is correct. Furthermore, this case in particular was one in which any assessment of damages for economic loss was beset by so many imponderables that an arithmetic approach could only have given a false

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appearance of accuracy. Nevertheless, in our view, it was open to the Master to make a global assessment of the losses in question, based on the evidence but without express reference to arithmetical calculation, his award does not bear the appearance of gross inaccuracy. However, it is rare that the facts allow one approach to the exclusion of the other. Some arithmetical basis must be used and a lump sum cannot be plucked out of the air, but judgment must be used in the application of arithmetic to what figures the evidence may support.

63. This decision was upheld on appeal to the Full Court of the Federal Court (Black CJ, Foster, Madgwick, Finkelstein, Dowsett JJ): Fry v McGufficke [1998] FCA 1499.

64. In Howard v Aikman, the Court said that, whilst some mathematical basis must be used and a lump sum cannot be plucked out of the air, “Fry v McGufficke, however, is no authority for the proposition that the award of a buffer is rarely appropriate. Nor is O’Brien v Noble.” The Court noted that the Full Federal Court in Fry v McGufficke said that, in that case, the Master was “well-entitled, given all the uncertainties about the plaintiff’s future ... to opt for an intuitive, global assessment.”

65. A loss of earning capacity is a loss of a chance: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Barton v Samarkos Earthmoving Pty Ltd [2004] ACTCA 6. Harold Luntz, in his book “Assessment of Damages for Personal Injuries and Death: General Principles” (LexisNexis Butterworths, 2006) described it in this way at 144:

A plaintiff who has been deprived of earning capacity, whether entirely or in part, has in reality lost the chance of exploiting that capacity to the full.

66. In some instances it will be relatively easy to calculate damages compensating a person for loss of future earning capacity; for example, the period of incapacity may be closed, and the plaintiff may have a solid history of stable employment. Most cases, however, are not so simple; a plaintiff may have had an inconsistent history of employment, or there may be other complicating factors that must be taken into account. Among such factors would be the potential for pre-existing health conditions to impact upon future earnings, and the attitude of the injured party to the effects of their injury, and to employment generally.

67. In the present case, Mossop AsJ was required to assess future economic loss in circumstances where the opinions of the medical experts as to the appellant’s capacity to engage in full-time employment in the future, in her pre-accident employment, were not supported by the reality of the appellant’s work pattern after the accident. The medical experts also did not speak with one voice. Dr Paul thought the appellant was fit to perform her normal duties and hours. Dr Champion considered the appellant to have been unfit for work from November 2013 onwards, with little prospect that she would return to full-time employment. Dr Patrick considered the appellant was fit to work 24 hours per week, and that it was unlikely that she would return to full-time employment. Dr Khurana thought the appellant was fit for part-time work. The established fact, however, is that the appellant did return to full-time work for a period, and when she was working part-time she regularly worked more than the 24 hours recommended by Dr Patrick.

68. This was a case where the prevailing expert medical opinion was that the appellant suffered continuing pain as a result of the injuries she received in the accident. The majority of the expert medical opinion was to the effect that the appellant had suffered a diminution of earning capacity as a result of her injuries. The question then was one whether, and to what extent, that diminution may be productive of financial loss in the future: Medlin v State Government Insurance Commission (1995) 182 CLR 1.

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69. Mossop AsJ accepted that the appellant suffered from ongoing back and neck pain, and that she would continue to suffer from such pain. The appellant’s ability to cope with that pain and therefore to engage in employment was, Mossop AsJ considered, uncertain. In the factual circumstances of the proceedings before him, we do not see how his Honour can be criticised for this finding.

70. Dr Khurana directly addressed the question of the duration that the injuries the appellant suffered would interfere with earning capacity. He identified the psychological factors as the major contributing cause of that interference, despite the likelihood of ongoing pain. This made relevant Dr Saboisky’s opinion of the likely improvement in her psychological condition with the resolution of the legal proceedings, notwithstanding his overly dismissive view of the physical injuries, unsupported by other medical opinion and not accepted by Mossop AsJ.

71. Even Dr Champion, despite his overly pessimistic view of the appellant’s capacity, rightly rejected by his Honour, expressed the view that the appellant was “still relatively young and in years to come might well make some recovery”, though he thought that might still be limited to part-time work.

72. Dr Patrick refers to “residual symptoms” in his prognosis but did not relate those to the prospects of the appellant returning to work in the future.

73. In Penrith City Council v Parks [2004] NSWCA 201, Giles JA (with whom Cripps AJA agreed) said at [3]-[5]:

A claimant’s entitlement to damages for future economic loss, in concept for loss of earning capacity (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4; Husher v Husher (1999) 197 CLR 138 at 143), involves a comparison between the economic benefit to the claimant from exercising earning capacity before injury and the economic benefit from exercising earning capacity after injury. I agree that s 13(1) appears to address the former.

I do not think there is much difference in the result between the operation of s 13(2) identified by Hodgson JA in MacArthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 and that favoured by McClellan AJA. Taking the conventional 15 per cent for contingencies, the one looks to the 15 per cent and the other looks to the balancing 85 per cent. I do not think it matters for the present case.

I consider that it is still open to assess damages by way of a so-called “buffer”. The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference cannot be determined otherwise than by the broad approach of a buffer...

74. The appellant’s position on appeal, that future economic loss should have been calculated on basis of a loss of $300 per week to age 67, discounted by 15 per cent for vicissitudes, is problematic. That calculation is based upon the assumption that the appellant would continue to work the same hours that she was working at the time of the hearing before Mossop AsJ, being 30 hours a week, until age 67. In light of the appellant’s work history post accident, Mossop AsJ was entitled to treat such an approach as speculative. The medical evidence did not justify any other finding. A similar approach, but with a variation in the discount for vicissitudes, is also problematic, as arguments may be made for both increasing and decreasing the rate of discount; much would depend on how the appellant’s future circumstances affects her ability to cope with her pain, which cannot be known or even reliably surmised at the present time.

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75. In Palma v Nominal Defendant (2016) 74 MVR 411, Adamson J with whom Gleeson and Simpson JJA agreed, said that “The assessment of future economic loss may involve ... predictions as to the effect of an injury which may manifest itself over time and in the future. In such situations, a buffer is sometimes the best way of assessing fair compensation...”

76. Adamson J was referring to circumstances where the plaintiff’s incapacity was not evident at the time of trial, but would become so at some future, unspecified time. That same applies, however, to a case where the incapacity is evident and ongoing, but how that incapacity will affect the appellant’s post-accident earning capacity is uncertain.

77. The approach taken by Mossop AsJ was open to him in the light of the considerable uncertainties surrounding the quite lengthy future period his Honour was required to consider. His Honour’s reasoning is revealed, so that this Court can understand the way in which he reached the determined sum. The approach advocated by the appellant in these proceedings would have still required his Honour to account for those uncertainties, and would not have been any fairer to the appellant.

78. The appellant has not demonstrated any error on the part of Mossop AsJ in assessing future economic loss as a buffer.

Assessment of damages for future economic loss

79. Turning to appeal ground (b), in its application to the assessment of damages for future economic loss, it must be acknowledged that the assessment of damages calls for an exercise of judgment akin to the exercise of a discretion. The proper approach to an appeal challenging the sufficiency of an assessment of damages is found in Howard v Aikman at [53]-[54]:

There is limited scope for interfering with the Master’s decisions on both past and future loss of earning capacity. These decisions involved discretionary judgments which were not said to be based on “the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance” (State of New South Wales v Moss (2000) 54 NSWLR 536 at [87]). The cases call for judicial restraint: McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 at [112]-[114]. In order to succeed on this question, the insurer must do more than persuade the Court that a different figure is preferable. In Miller v Jennings (1954) 92 CLR 190 (“Miller”) at 196 Dixon CJ and Kitto J adopted the following statement of principle by Lord Wright in Davies v Powell Duffryn Associated Collieries [1942] AC 601 at 616-617:

Where … the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer L.J. in Flint v. Lovell [1935] 1 K.B. 354 at 360. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.

In Harper v Bangalow Motors Pty Ltd (unreported, NSWCA, 24 July 1990) Clarke JA referred to this statement and its adoption in Miller and said that, where the decision in question “involves a degree of judicial prophesy or speculation”, the test adopted in Miller applies, so that to set aside the decision the appellate court must be satisfied that the trial judge acted on a wrong principle, misapprehended the facts or for these or other reasons

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made a wholly erroneous estimate of the damage. This approach was endorsed by the NSW Court of Appeal in Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports ¶81-695.

80. The appellant has not demonstrated that Mossop AsJ acted on a wrong principle of law, or misapprehended the facts. The appellant has not demonstrated that the amount awarded by his Honour falls outside the exercise of sound discretionary judgment.

Future Griffiths v Kerkemeyer damages

81. Before Mossop AsJ the parties agreed that an hourly rate of $35.00 was appropriate, as the basis for calculation of this head of damage. The appellant submitted to Mossop AsJ that an award of $165,375 should be made based on 26 years of domestic assistance at three and a half hours per week. The respondents submitted that a global amount of $50,000 was appropriate. His Honour noted that the significant issue between the parties was the period during which such assistance would be required. The considerable uncertainties surrounding the effect of the appellant’s condition on her in the future, referred to by Mossop AsJ with regard to the claim for future economic loss, was also relevant to the assessment of damages for domestic assistance. In addition, his Honour noted that there was evidence that the appellant’s husband was contemplating going into business, raising the possibility that even in the absence of injury to the appellant, she and her husband may have engaged domestic assistance. The significant uncertainties with regard to the appellant’s future convinced his Honour to accept the respondents’ approach. It is clear that in assessing damages in the way he did, Mossop AsJ used as a yardstick the calculation that the sum awarded, $50,000, was equivalent to three hours assistance per week at the agreed hourly rate of $35.00 over a period of 10 years.

82. The appellant submitted that there was an inconsistency manifest in findings made by Mossop AsJ in calculating future economic loss and those he made when calculating damages for future domestic assistance. This submission was apparently based upon Mossop AsJ’s statement that the sum allowed for future economic loss equated to the loss she would sustain over a six year period based upon the hours she was working at the time of the trial, whereas he noted that the amount he determined as appropriate for future domestic services equated to the cost of three hours assistance per week for a period of 10 years. The appellant said that his Honour’s finding that the appellant would require assistance for 10 years was inconsistent “with his finding that the Appellant’s work capacity would be affected for six years.” This submission misconstrued the basis upon which his Honour determined the two sums; the amount allowed for future economic loss was not calculated on the basis that the appellant’s work capacity would be diminished for six years, and the amount allowed for future domestic assistance was not calculated on the basis of a determination that assistance for three hours per week for 10 years was required. His Honour’s reasons make this clear.

83. Mossop AsJ accepted that the appellant is likely to continue to suffer pain for the indefinite future as a consequence of the accident. Accepting that proposition, his Honour proceeded to determine, as best he could, how that continuing pain would impact upon the appellant’s earnings in the future, and upon her need for domestic assistance in the future. In approaching this second task, his Honour concluded that the appellant was likely to cope better with her pain at different times of her future life, which would be reflected in the hours that she was likely to work, and the domestic assistance she would require. In each case, his Honour determined to award a buffer because of the impossibility of calculating these heads of damage by reference to constant loss or need for a discernible period. The equation of the amounts awarded to specified loss and need

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by his Honour, was merely a means of testing the proportionality of the award. As there was no inconsistency of the nature alleged by the appellant, appeal ground (c) is without merit.

84. For similar reasons that we have given with regard to the appellant’s contentions concerning the award for future economic loss, it was open to Mossop AsJ to assess damages for future domestic assistance on a global basis, and to employ the method that he did, and no error is exposed.

85. The appellant submitted that the supposed inconsistency in the findings of Mossop AsJ referred to above was further evidence that his Honour had, against the weight of evidence, found that there was potential for the appellant’s physical condition to improve: see [52] above. Having accepted the proposition that there was no evidence the appellant’s physical condition was likely to improve, his Honour addressed the likely effect of that physical condition upon the earnings of the appellant post-trial, and her continuing need for domestic assistance. The amounts determined by his Honour reflect that the impact of the appellant’s physical condition upon her earning and need for domestic assistance is likely to fluctuate in the future due to the uncertainties to which he referred.

86. The appellant did not separately argue appeal ground (d), that Mossop AsJ erred in rejecting the evidence that the appellant’s prognosis is poor, undoubtedly because it was only relevant to his Honour’s approach to the assessment of damages for future economic loss and the need for future domestic assistance. The issue relating to Mossop AsJ’s assessment of sums for these heads of damage were comprehensively canvassed with regard to the other appeal grounds.

87. The final issue concerns appeal ground (b) in its application to the amount awarded for future domestic assistance. This raises the adequacy of the damages awarded. For the same reasons which we have given when considering this ground with regard to the damages awarded for future economic loss, we are not satisfied that the amount awarded by his Honour was outside that which could be awarded by the exercise of sound discretionary judgment.

Conclusion

88. In our opinion, the appeal should be dismissed. The appellant should pay the respondents’ costs unless either party applies within 7 days for any other order setting out the reasons for that other order.

I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 10 October 2016

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