SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Reitano v Shearer & Anor [2014] QCA 336 PARTIES: MONICA-LEIGH REITANO (appellant) v BENJAMIN JOHN SHEARER (first respondent) RACQ INSURANCE LIMITED ABN (second respondent) FILE NO/S: Appeal No 3518 of 2014 SC No 52 of 2011 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal General Civil Appeal Supreme Court at Mackay DELIVERED ON: 16 December 2014 DELIVERED AT: Brisbane HEARING DATE: 13 October 2014 JUDGES: ORDERS: CATCHWORDS: Holmes and Fraser JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. The appeal is allowed. 2. The judgment given below in the amount of $139,026 is set aside, with judgment in the amount of $149,376 substituted. 3. The parties have leave to deliver written submissions within 14 days of this judgment as to whether any variation is required to costs orders made at first instance and as to the costs orders which should be made in this court. APPEAL AND NEW TRIAL APPEAL GENERAL PRINCIPLES EXCESSIVE OR INADEQUATE DAMAGES GENERAL PRINCIPLES PERSONAL INJURY OR DEATH CASES where the appellant was 17 years old when she was injured in a motor vehicle collision where quantum was the only issue at trial where the trial judge found that the collision had caused the appellant to suffer a spinal injury in a context of advanced pre-existing spinal degeneration where the appellant appealed against the judgment on the grounds that the trial judge

2 2 COUNSEL: SOLICITORS: wrongly failed to make awards for past and future gratuitous care and future special damages where the appellant contends the awards the trial judge made for general damages and future economic loss involved error and were manifestly inadequate whether the appeal should be allowed Civil Liability Act 2003 (Qld), s 55(3), s 59(1) Civil Liability Regulation 2014 (Qld), s 3(2) Schedule 3, s 8 Schedule 7 Ballesteros v Chidlow & Anor [2006] QCA 323, applied CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, cited Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41, cited Kriz v King [2007] 1 Qd R 327; [2006] QCA 351, cited Reitano v Shearer & Anor [2014] QSC 44, related A R Philp QC, with P W Moore, for the appellant K S Howe for the respondents Eureka Legal for the appellant Cooper Grace Ward for the respondents [1] HOLMES JA: The appellant was 17 years old when she was injured on 16 January A four-wheel drive vehicle hit her stationary sedan from behind, propelling it forward some five metres. In her action for damages for personal injuries, liability was admitted and the trial proceeded on the issue of quantum only. The appellant gave evidence of lasting and significant symptoms of thoracic spine pain, back spasms and leg and foot numbness. She said that her injuries had made her socially avoidant and limited her career options: she had intended to study journalism with the aim of becoming a foreign correspondent but had been forced to study psychology instead. She anticipated difficulties in any career because of physical constraints arising from the injuries. [2] The trial judge found 1 that the motor vehicle collision caused the appellant to suffer a prolapse at T10-11 in a context of advanced pre-existing degeneration in her thoracic spine. But he formed an extremely unfavourable view of her credit, describing her as prepared to mis-state the facts or consciously confabulate 2 and concluding that she could not be relied upon to give an accurate account of the effects of the accident upon her and the aspects of her work, education and day to day life that were affected by the accident. 3 In consequence of that view, his Honour declined to act on any medical opinion which relied on the appellant s self-report, and said that he was not prepared to conclude that the [appellant] has suffered from any significant psychiatric or psychological disturbance as a consequence of the accident Reitano v Shearer & Anor [2014] QSC 44. At [8]. At [11]. At [15].

3 3 [3] The appellant did not contest the trial judge s adverse finding on credit. She appealed against the judgment given on grounds that the trial judge wrongly failed to make awards for past and future gratuitous care and future special damages and that the awards he made for general damages and future economic loss involved error and were manifestly inadequate. Future economic loss [4] The trial judge did not accept that the appellant had any serious intention to pursue a career as a journalist. Nor did he accept any medical opinion as to limitations on her capacity to earn income, given that it was based on her own account. The appellant had completed a degree with a major in psychology and was undertaking a master s qualification in human resources. His Honour considered that any disability caused by the accident would not significantly interfere with her capacity to pursue a career in that area. [5] However, the trial judge accepted that the appellant s injury might: cause her intermittent pain and suffering into the future occasionally productive of lost income. [It was] likely to cause pain and restriction at work and in life from time to time 5 It was impossible, his Honour considered, to say with any precision to what extent the appellant s pre-existing spinal degeneration was responsible for her injury, as opposed to the accident, or the degree of acceleration or aggravation of the injury by the accident. However, the possibility of the appellant s suffering from a painful condition in her thoracic spine, independent of the accident, was a contingency to be taken into account. Having assessed past economic loss, his Honour went on to say: A similar lump sum or global assessment for future economic loss is also indicated for the same reasons. The plaintiff is a young woman and has approximately 44.5 years before a notional retirement age at 67. In my view there is a probability that the plaintiff s injury will be productive of economic loss in the future though I do not consider that the loss will be significant in terms of the capacity to perform the sort of work to which her tertiary education is directed. In the circumstances I assess that loss at $75, [6] The appellant complained that the trial judge had not complied with s 55(3) of the Civil Liability Act, which provides that, where an award of damages is to be made for a loss of earnings which is incapable of precise calculation, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. It was contended that the award of $75,000 could not properly represent the appellant s future economic loss, given that she was only 17 when injured, with a long working life ahead. By way of illustration, it was said, the $75,000 figure would represent an eight per cent chance of a loss of $1200 net per week, discounted by a further 20 per cent for the contingency of the appellant s having arrived at the same physical state by reason of her existing degeneration. 5 6 At [22]. At [25].

4 4 [7] It is plain that the trial judge set out the assumptions on which he awarded economic loss; but he did not articulate any particular methodology by which he arrived at the $75,000 figure. The failure to state methodology does not necessarily invalidate an assessment, although it may cause the court to scrutinise the award rather more closely than ordinarily it would do. 7 In the present case, there were a number of ways in which one might reasonably arrive at a figure, without any one of them having superior validity. [8] The trial judge s conclusions as to the nature of the injury, its context and its significance for the future were not challenged. Having regard to them, the figure of $75,000 over 44.5 years can readily be justified. It represents an allowance of roughly $4100 per year on the five per cent table; about four weeks loss of income a year on the figure which the appellant contended at trial would represent her nett earnings as a journalist or psychologist. That assessment broadly, and relatively generously, reflects his Honour s conclusion that there might occasionally be some income loss attributable to the injury. [9] On the trial judge s findings, I do not consider that the award of damages for future economic loss was inadequate. General damages [10] The trial judge found that the spinal prolapse fell within item 92 of the relevant schedule to the Civil Liability Regulation The appropriate injury scale value (ISV) was 8. He was not prepared to make any finding of other spinal injury. His Honour concluded on the point: In the circumstance the relevant assessment for an ISV of 8 (with no uplift) is $8, Both parties agreed that the trial judge had been referred to a version of the schedule which was not in force at the date of the appellant s injury. He was, in consequence, wrongly given to understand that the relevant ISV range was 5-15, when it was in fact [11] The appellant pointed out that the trial judge had considered that the appropriate ISV was somewhere above the bottom of the range, so that the corrected ISV should at least reflect that view. Another factor pointing to the appropriateness of a higher ISV was that his Honour had failed, wrongly, to make any allowance for a minor psychiatric injury. The existence of such an injury was implicit in his finding that there was no significant psychiatric injury; moreover the respondents had admitted in their amended defence that the appellant had suffered a psychological injury of brief duration. Section 3(2) of Schedule 3 of the Civil Liability Regulation was relevant. It provides: To reflect the level of adverse impact of multiple injuries on an injured person, the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only. 7 8 Ballesteros v Chidlow & Anor [2006] QCA 323 at [56]. At [17].

5 5 [12] The respondents accepted that the general damages award required adjustment in consequence of the error as to the schedule, contending that an ISV of 10 should be adopted instead. While conceding that the appellant had suffered a psychological injury, but not a significant one, they pointed out that the trial judge had a discretion whether to increase the ISV under s 3(2), and was entitled to choose not to do so. [13] The difficulty is that the trial judge, while declining to find any other spinal injury which might lead to a higher ISV, and hence refusing to allow any uplift, did not deal with the admitted psychiatric injury. There was no obvious reason not to recognise it in the award and one can only conclude from the absence of reference to it that the failure to do so was not a considered decision. Accordingly, it is necessary to re-consider the ISV assessment for the spinal injury, taking the minor psychiatric injury into account. [14] The information on which to do so is scant, given the trial judge s rejection of the appellant s account of her symptoms. There is not much beyond the admission of a transient psychological injury, presumably in the nature of the adjustment disorder which the psychiatrists for both parties had diagnosed, and the prolapse in an already degenerate spine, which the trial judge described as a not insignificant injury, likely to produce intermittent pain and suffering. Adding some modest allowance for the psychiatric injury in assessment of the dominant spinal injury, I consider that an ISV of 13 would properly reflect the appellant s injury. Pursuant to s 8 of Schedule 7 of the Civil Liability Regulation 2014 (which applies to injuries suffered between 2 December 2002 and 30 June 2010), that would result in a figure for general damages of $15,200. Future special damages [15] The trial judge made an award of some $12,000 for past special damages, representing the cost of medications and visits to general practitioners, but did not make any mention of an award for future expenses in his judgment. The appellant submitted that the failure to make an award in this regard was an error, and proposed that a global award of $10,000 should be made. That sum represented the figure of $13 per week which the appellant had identified in her quantum statement as representing her likely expenditure on medical attendances and prescriptions, with some further discounting. [16] The respondents suggested that the trial judge had considered the matter and decided to make no finding in the absence of any medical opinion as to the appellant s need to take pain medication in the future. Alternatively, the amount involved was so trivial that the award should not be adjusted. 9 The first proposition is difficult to reconcile with the trial judge s finding that the injury was likely to cause pain and restriction at work and in life from time to time. The omission of any award, in the circumstances, seems likely to have been a simple oversight, which subject to the respondents second argument about triviality, should be corrected. [17] In light of the trial judge s finding about intermittent pain and suffering, I would regard a figure of $200 per year, representing the cost of medication and doctor s visits, as reasonable. Over a period of 50 years, discounted at five per cent, that would amount to $3750. Taken with the adjustment which the respondents conceded must be made to the general damages award (while not agreeing the amount) the resulting alteration to the judgment would be of the order of $10,000. On the judgment sum below ($139,026), that is not an insignificant amount and warrants correction. 9 Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258 at 265.

6 6 Gratuitous services [18] Section 59(1) of the Civil Liability Act 2003 sets (and set at the time of the appellant s accident) conditions for the award of damages for gratuitous services: 59 Damages for gratuitous services (1) Damages for gratuitous services are not to be awarded unless (a) (b) (c) the services are necessary; and the need for the services arises solely out of the injury in relation to which damages are awarded; and the services are provided, or are to be provided (i) (ii) for at least 6 hours per week; and for at least 6 months. [19] The trial judge declined to accept the evidence of a neurologist and an occupational therapist as to the appellant s need for care and assistance because of the extent to which they relied on her reporting. But the appellant s mother had also given evidence on the matter, which was not challenged. [20] Mrs Reitano said that she had been working two jobs at the time the appellant was injured. Although a schoolgirl, the appellant had, prior to the accident, undertaken the household chores of grocery shopping, cooking the evening meals and cleaning the house. After the accident, for eight or nine months the appellant could not do much around the house. From August 2008 to the end of 2011, she might have had some greater capacity to assist but, Mrs Reitano said, There was not really much expectation on her to do anything other than what she thought she could at the time. Because the appellant was no longer able to perform the work, Mrs Reitano had spent about 23 hours per week on the same chores, with some further assistance from her own mother. 10 The appellant was able to help sometimes with the cooking of the evening meals. [21] Mrs Reitano explained that immediately after the appellant s accident, the household had consisted of herself and four children, but later her two sons had moved out; she was vague about whether that was in 2008 or Subsequently, there were three members of the household, so she attributed a third of the work done to tasks performed on the appellant s behalf. In cross-examination she agreed that she could not dissect how much of the household work she performed related specifically to the appellant s needs. [22] The trial judge made this finding: 10 The appellant could not recover for the cost of domestic services which she was precluded, by reason of her injury, from providing gratuitously to others: CSR Limited v Eddy (2005) 226 CLR 1. Section 59 did not alter that position; it restricts common law entitlements rather than establishing any further statutory right: Kriz v King [2007] 1 Qd R 327.

7 7 The plaintiff s mother gave evidence touching upon this issue. I found her evidence confusing. It was difficult to ascertain from her evidence what services were provided by Mrs Reitano to the plaintiff as care arising out of or because of the effects of her injuries as opposed to services that were provided replacing those that had been performed for Mrs Reitano and other members of the family by the plaintiff before the injury. Further I am not persuaded by the evidence of Mrs Reitano or the other evidence which I have accepted that it has been established that the plaintiff either had a need for services or that they were provided as a consequence of her injuries at any time for at least six hours per week for at least six months. Consequently the plaintiff has not proven an entitlement to an award of damages for care or services either in the past or into the future. 11 [23] The appellant argued that the threshold requirement of a need for care of at least six hours per week for six months was made out on Mrs Reitano s evidence. It was consistent too, with the medical evidence of the appellant s receiving treatment and physiotherapy over that time. The trial judge should have allowed six hours per week for six months at $21 per hour (the agreed rate). Thereafter, it would be reasonable to make an allowance for the restrictions that the appellant s injury would cause her in performing heavier chores, allowing one or two hours per week for the past and a similar amount for the future. [24] The respondents contended that the trial judge was entitled to find that Mrs Reitano s evidence was confusing and did not reach the required level of proof to establish that the s 59 threshold was met. There was no clear evidence as to which tasks were done for the benefit of the whole household and which related to the appellant s needs. [25] In my view, the respondents submission must be accepted. Mrs Reitano was unable to say what services were actually provided to the appellant, and gave no rationale for the estimate of one third, other than that there were three members of the household. And it was by no means clear from her evidence that the appellant physically needed assistance, as opposed to its not being expected of her that she would perform domestic tasks. In those circumstances, one could not say on the balance of probabilities that there were services which the appellant both needed solely by reason of her injury and had provided to her for six hours per week. The trial judge made no error in concluding that the s 59 threshold for an award had not been met. Conclusion [26] The judgment at first instance entailed error in the award of general damages and in the failure to award future special damages. Accordingly, the appeal should be allowed and the judgment given below in the amount of $139,026 set aside, with judgment in the amount of $149,376 substituted. The parties should have leave to deliver written submissions within 14 days of this judgment as to whether any variation is required to costs orders made at first instance and as to the costs orders which should be made in this court. [27] FRASER JA: I agree with the reasons for judgment of Holmes JA and the orders proposed by her Honour. [28] PHILIPPIDES J: I agree with the reasons of Holmes JA and the orders proposed. 11 At [29].