Justice Elkaim's first civil decision in the ACT Supreme Court

15 August 2016

Soft tissue injuries, loss of earning capacity and credit: favouring a plaintiff’s oral evidence over the histories recorded by the medical legal experts.

Carmen Utting v Ben Clarke & Insurance Australia Limited t/as NRMA Insurance [2016] ACTSC 168 (14 July 2016).


Justice Michael Elkaim has recently been appointed as the long awaited fifth resident judge of the Supreme Court of the Australian Capital Territory, having served as a judge of the NSW District Court since 2008.

It was anticipated that his appointment would provide much relief and ease the pressures on the four Judges and Associate Justice of the Supreme Court, which had a reputation for backlogged lists and delayed judgments.

On 11 to 12 July 2016, Justice Elkaim presided over his first civil case in the ACT, and promptly handed down his decision on 14 July 2016.

The proceedings were an assessment of damages for injuries suffered by Ms Utting (the plaintiff) in a motor vehicle accident. After reserving his judgment following a two day hearing, Justice Elkaim found for the plaintiff and awarded damages totalling $220,610.68.

HWL Ebsworth acted for the defendants in the matter.

Background and facts

The plaintiff was driving a motor vehicle on Sunday, 19 May 2013 when her vehicle was struck from behind at low speed by a vehicle driven by the first defendant.

The plaintiff alleged that she had suffered significant injuries to her neck, thoracic spine and lumbar spine as a result of the accident, and she had particularised a claim of in excess of $600,000.

Prior to the accident, the plaintiff was employed at a Canberra medical centre as a casual receptionist working part-time hours. However, in the week prior to the accident, she was promoted to a full-time management position. It was alleged that, as a result of her injuries, she was unable to work full-time hours and her claim for past and future loss of earning capacity was particularised on that basis.


The central issue in this case involved an assessment of the plaintiff’s past and future loss of earning capacity, there being considerable conflicting evidence from the plaintiff’s treating practitioners (and elsewhere) as to the reasons for her working reduced hours.

The plaintiff’s credit was also in issue, having regard to her claim as particularised, the histories she had given to the various medical assessors – and inconsistencies in those histories, as well as inconsistencies in the evidence she gave.


His Honour found that the plaintiff’s credit was not affected by the inconsistencies between her evidence and the histories recorded in the medical evidence. His Honour noted the comments of His Honour Mr Justice Basten of the NSW Court of Appeal, in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 227, in which it was noted that such inconsistences should be approached with great caution given that:

  • The health professional had not been cross examined regarding the circumstances of the consultation, how the history was obtained, or the accuracy of the records;
  • The original purpose of taking the history was most likely for a different purpose other than a forensic exercise, and therefore was unlikely a verbatim recording; and
  • The health professional may not have a full understanding of the circumstances of the incident and the plaintiff’s understanding of the purpose of the questioning.

Justice Elkaim awarded the plaintiff damages totalling $220,610.68, including general damages of $75,000 (plus interest), past loss of earning capacity of $28,153 (plus interest) and future loss of earning capacity of $57,604.50. His Honour also awarded a little over $3,000 for past superannuation benefits, and a little over $6,000 for future loss of superannuation benefits (calculated at11%).

In doing so, His Honour declined to accept the defendants’ submissions that a buffer or cushion for loss of earning capacity was appropriate having regard to conflicting evidence on the issue – adopting a mathematical approach for both past and future loss of earning capacity. His Honour also declined to accept the submissions of the plaintiff’s Counsel that she would remain partially incapacitated for work for the balance of her working life, which claim totalled in excess of $140,000 (using the 3% tables).


This case is a useful example of the manner in which Justice Elkaim will approach assessments of damages for loss of earning capacity, when there is conflicting evidence in the histories given to medical assessors, the oral evidence given by a plaintiff and the manner in which the claim is particularised.

It is also a positive development that a decision was handed down by the ACT Supreme Court within days of the conclusion of the hearing.

This article was written by Richard Garnett, Partner, Lisa Sherman, Associate and Kirsti Carpenter, Graduate-at-Law.

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