A ruling that a seriously injured not-at-fault driver was capable of a return to work following a road accident trial has been rejected on appeal as having been unsupported even on the evidence of the most optimistic medical specialist called by Allianz in opposition to the claim.
Justice Paul Freeburn’s finding in October 2021 that Kate Sutton would recover and gradually return to work by the end of 2025 “was without evidential basis and against all of the evidence” the appeal judges ruled in relation to the assessment of future economic loss.The primary judge had preferred the conclusions of psychiatrist John Chalk over those of his colleague Trevor Lotz – who treated plaintiff Karen Sutton – because of a conflict he perceived between “saying the right thing for the patient” and giving objective testimony.
But even Dr Chalk gave no support for the conclusion that within four years after trial, she would have no permanent impairment.
On appeal Justice John Bond – in giving the lead judgement of the court – also rejected the trial judge’s finding that Sutton would lose out on income for only one day/week because uninjured, she would only have worked on only 2 days.
The medical evidence – at worst for the plaintiff – was that she had the capacity for at least 20 hours and the plaintiff swore she would otherwise have worked around 40 hours.
“The primary judge’s allowance of only two days a week going forward was an underassessment of the appellant’s prospects of work capacity,” he observed.
As a result, the weekly net future loss attributed to the plaintiff was increased from $240 to $600 and its duration extended to cover the 17 years of her remaining working life as opposed to the four years allowed by Justice Freeburn.
The net result was future economic loss being allowed at $3o7k rather than the $91k assessed at trial.
The appeal court maintained the 15% vicissitudes adjustment for future loss of income as had been adopted at trial.
“The appellant ought to be assessed as having a much larger discount for vicissitudes of life then the statistical 5.91% as she was not in stable long term employment prior to the accident,” Justice Crow reflected.
Appeals against many other assumptions and findings made by the trial judge – including those estimated for past economic loss and his preference for the evidence of Dr Chalk over that of Dr Lotz – were rejected.
“The views formed about the relative merits of the expert opinion reflect a careful and balanced assessment, plainly informed by his honour’s impressions of both witnesses and of the appellant,” Justice Bond noted.
Sutton also appealed the trial judge’s interpretation of Civil Liability Act s 55(3) – regarding when and how global sums should be assessed – as having been contrary to authority.
Given the escalation in damages it had allowed, the appeal court thought this unnecessary to consider.
“I would leave consideration of the primary judge’s analysis of s 55 and the related case law to an appeal in which it was necessary to consider those matters,” Justice Bond wrote.
Sutton did have an additional win on indemnity costs.
Neither did the court decide whether the trial judge had miscarried his discretion by refusing indemnity costs to Sutton even though she had offered to accept around $500 less than the $314k he ordered be paid.
But as she “must now be regarded as having obtained a result significantly more favourable than the amount of the offer she made, the discretion should be re-exercised by this court” in her favour.
The increase in the award from $314k to $544k, with an award of indemnity costs, is a major improvement for the plaintiff and equally painful blow to CTP insurer Allianz’s determined opposition to the claim.