Utting v Clark [2017] ACTCA 22


Case name:      Utting v Clark [2017] ACTCA 22

Judges:             Burns, Mossop and Collier JJ.

Court:                ACT Court of Appeal

Delivered:         15 May 2017


The Appellant suffered soft-tissue injuries to her back and neck following a motor vehicle accident. Liability was admitted, and the trial judge assessed damages at $220,610.68.

The plaintiff appealed, contending the Primary Judge erred in assessing her future economic loss on the basis she would make a recovery from her injuries over a period of 10 years.

The appellant argued the appropriate approach would have been to assess damages on the basis that her condition was likely to be permanent, subject to a discount to address the chance of an earlier recovery in accordance with the principles of Malec v JC Hutton Pty Ltd.[1]

Evidence of Injury

The imaging evidence demonstrated no abnormalities in the plaintiff’s spine. She nonetheless continued to suffer from a soft tissue injury with an associated pain disorder.

The key evidentiary issue was how long this injury would last, and whether recovery might occur prior to the conclusion of the plaintiff’s working life. Four specialists commented on this issue.

Plaintiff’s Expert Evidence

  • Dr Champion, a physician

In his initial report, Dr Champion opined,

“While there is scope for improvement, it will I expect, only be partial and it will be most difficult for Miss Utting to work for a normal life work span. It wouldn’t take much of a setback to put her out of work altogether. She will remain vulnerable in the long term to exacerbation on minor or moderate mechanical provocation.”

His subsequent two reports did not comment further on the likely duration of her injury.

  • Dr Patrick, a general, vascular and trauma surgeon

In his report, Dr Patrick opined,

“The prognosis is for some degree of ongoing residual symptoms, continuing into the future… As a consequence of her accident-related injuries I do believe that into the long-term Carmen Utting may well have to retire somewhat earlier than would otherwise have been [the] case, and I believe it is reasonable to suggest that her effective working life (she is now aged 34) is probably likely to be shortened by as many as three years (having to retire at age 64 as opposed to age 67).

The Court gave little weight to this evidence, finding it was unclear how, on the basis of Dr Patrick’s specialised knowledge and experience, he could predict that in 30 years’ time the appellant might be required to retire earlier than would otherwise have been the case.[2]

  • Dr Le Leu, an occupational physician

In his second report, Dr Le Leu commented,

“She has had her current range of symptoms for 2 ½ years so it is more probable than not that her injuries and disabilities will continue for the foreseeable future… it is more probable than not that her symptoms will remain at about the same level for the foreseeable future rather than deteriorate. Hence, her capacity to work should not change.”

In cross examination, Dr Le Leu clarified what he meant by the foreseeable future,

“… I guess it doesn’t mean infinitely. It means the extent to which the future can be foreseen. I suppose usually I’d be thinking in terms of the next five to 10 years, probably closer to five….

In re-examination, Dr Le Leu backtracked from this statement, stating it was, “far more probable than not that she would still have the same range of symptoms (at the end of five years).”

In response to a question as to whether he would expect a gradual settling of symptoms over time, Dr Le Leu further noted,

“…if we are talking about the cervical spine or the thoracic spine, in about 40% of cases you do get complete resolution. In another 5% or so – no. I should say in 42% of cases you get ongoing symptoms and I guess that’s about the only possible consequence, either symptoms or no symptoms, so that doesn’t quite add up to 100%.

Treating Specialist’s Evidence

  • Dr Speldewinde, a consultant in rehabilitation, pain and musculoskeletal medicine

As the plaintiff’s treating physician in a multidisciplinary pain clinic, Dr Speldewinde opined, in a letter to her General Practitioner, that her recovery, “…is likely to continue steadily over the next several years.”


The Court of Appeal found the evidence about how long the plaintiff’s condition would continue to be unsatisfactory. The Court emphasised that no doctor expressly opined the condition would continue for the rest of the plaintiff’s working life. At its highest, the plaintiff’s case relied on the evidence of Dr Champion, who acknowledged there was scope for improvement, a possibility of setbacks and a long term vulnerability to exacerbation.

Although Dr Le Leu did put forward some percentage figures, such as that 42% of people with a pain condition such as that suffered by the plaintiff would fully recover, the Court noted that the figures did not involve an assessment of the period over which such a recovery would occur.

The Court considered the decision in Malec v Hutton and held, “It was clearly a case where ‘damages founded on hypothetical evaluations defy precise calculation.”[3]They considered the trial judge’s assessment involved an appropriate finding that the period of 10 years provided a reasonable basis upon which to assess damages taking into account all of the possibilities, rather than a positive finding that the appellant would definitely recover over a period of ten years.

The Court dismissed the appeal and ordered the Appellant to pay the Respondent’s costs thereof.

Practical Significance

This decision highlights the importance of quality letters of instruction to medical experts which specifically enquire as to the time frame in which a plaintiff will:

  1. Be able to return to work; and
  2. Make a full recovery from his/her injuries; or, if such a recovery is not possible
  3. Reach maximum medical improvement.

Fortunately for the defendant in this case, the plaintiff’s specialist evidence did not fully address these issues.


David Bray

[1] (1990) 169 CLR 638

[2] Utting v Clark [2017] ACTCA 22, 30. 

[3] Utting v Clark [2017] ACTA 22, 42 ; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 640.