Aneeta Singh(Appellant) v Michelle Cooper (First Respondent)

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Refshauge ACJ,Burns,Jagot JJ
• Judgment Date: 11 October 2016
• Docket Number: File Number: ACTCA 39 of 2015
• Date: 11 October 2016

[2016] ACTCA 55

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Refshauge ACJ, Burns and Jagot JJ

File Number: ACTCA 39 of 2015

Aneeta Singh

(Appellant)

and

Michelle Cooper

(First Respondent)

Insurance Australia Limited trading as NRMA Insurance

(Second Respondent)

Cases Cited:

Australian Capital Territory v Crowley & Ors (2012) 7 ACTLR 142

Barton v Samarkos Earthmoving Pty Ltd [2004] ACTCA 6

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Fry v McGufficke [1998] ACTSC 20

Fry v McGufficke [1998] FCA 1499

Gamser v Nominal Defendant 136 CLR 145 (1976–77) 136 CLR 145

Gaundar v Hogan [2014] ACTCA 4

Griffiths v Kerkemeyer (1977) 139 CLR 161

Howard v Aikman (2015) 74 MVR 184

Huen v Hyland [2004] ACTCA 5

Lounge 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 638

Medlin v State Government Insurance Commission (1995) 182 CLR 1

O'Brien v Noble (2012) 6 ACTLR 132

Palma v Nominal Defendant (2016) 74 MVR 411

Penrith City Council v Parks [2004] NSWCA 201

Singh v Cooper & Anor [2015] ACTSC 243

Suffolk v Meere [2002] ACTCA 1

Legislation Cited:

Supreme Court Act 1933 (ACT) s 37E

Texts Cited:

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

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.

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:

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

2. (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;

3. (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

4. (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.

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...