The Perils of Appeal5 November 2018 | Damages
A 50 year old bus driver who suffered soft tissue injuries to her spine and a related Adjustment Disorder has had her damages award of approximately $540,000 upheld on appeal.
- Whether the trial judge erred in her assessment of various heads of damage.
- Whether the trial judge erred in applying the Queensland CLA (as opposed to common law) in the assessment of damages.
On 2 September 2014, the respondent was injured when a bus that she was driving in the course of her employment in Queensland was struck by an out of control Holden Commodore.
The main issue at trial was the assessment of damages. A secondary issue was whether damages ought to be assessed under the CLA or at common law in circumstances where the respondent was injured in the course of her employment.
The Decision at Trial
The trial judge did not accept all of the respondent’s evidence at trial and, indeed, made some adverse findings against the respondent including that her description of the accident was “exaggerated” and her level of reported pain could not be explained by the physical state of her spine.
Notwithstanding the above findings, the trial judge went on to award damages of almost $540,000, including $270,000 for future economic loss.
The Issue on Appeal
The appellant appealed the decision on the following grounds: the trial judge erred in finding that the respondent had only a slight residual work capacity; the trial judge erred in her assessment of damages for future and past economic loss; and the trial judge erred in her assessment of past and future gratuitous care.
The respondent cross-appealed on the basis that the trial judge erred in finding that the CLA (and not common law) applied to the assessment of damages, and erred in her assessment of future economic loss.
The Decision on Appeal
The Court of Appeal rejected each ground of appeal put forward by both the appellant and the respondent.
In rejecting the grounds of appeal relating to assessment of damages, the Court of Appeal acknowledged that the trial judge had made some adverse findings in relation to the respondent’s evidence but also referred to critical findings of fact which supported the trial judge’s ultimate assessment of damages.
For example, it was acknowledged that the trial judge concluded that the respondent’s perception of her symptoms and limitations were more significant than was suggested by the medical opinion. However, despite those initial findings, the trial judge ultimately concluded that the respondent did in fact suffer injury and was permanently impaired as a consequence. Critically, according to the Court of Appeal, those findings were readily available on the medical evidence. Based on those findings, the trial judge’s conclusion that the respondent had only a slight residual earning capacity and her subsequent assessment of future economic loss were both open on the evidence and an appeal on those issues could not be sustained.
Similar findings were made in relation to the appeals relating to the trial judge’s assessment of gratuitous care and past economic loss.
In terms of whether it was correct to rely on the CLA in assessing damages, the Court of Appeal confirmed the position that a mere connection between time and place of the accident and employment is not sufficient. In the absence of any other indication that the respondent’s employment was a significant contributing factor to the injury, the Court of Appeal confirmed that it was correct to assess damages under the CLA.
Implications for you
This matter serves as a stark reminder of some of the issues that need to be considered when weighing the risks of an appeal.
In particular, the decision illustrates the importance of not dwelling on the unpleasant or unexpected nature of a trial decision. Instead, it is necessary to carefully consider each individual finding of fact and then critically assess whether the ultimate conclusions drawn by the trial judge were reasonably open on the basis of those findings of fact.