Baysari v Walkom

[2002] NSWCA 59

CITATION:	Baysari v Walkom [2002] NSWCA 59
FILE NUMBER(S):	CA 40411/01
HEARING DATE(S):	1 March 2002
JUDGMENT DATE:	11 March 2002
PARTIES :	Sam Baysari - Appellant Tony Selby Walkom - Respondent
JUDGMENT OF:	Stein JA at 1; Giles JA at 2; Hodgson JA at 77

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7011/98
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL:	J Hislop QC & A Capelin - Appellant A Leslie QC & I McGillicuddy - Respondent
SOLICITORS:	Abbott Tout - Appellant Steve Masselos & Co - Respondent
CATCHWORDS:	NEGLIGENCE - damages - various challenges - depended on facts - no question of principle. ND.
CASES CITED:	Dell v Dalton (1991) 23 NSWLR 528; Norris v Blake (No 2) (1997) 41 NSWLR 49; Rhesa Shipping SA v Edmunds (1985) 1 WLR 948.
DECISION:	Verdict and judgment for $611,786.85 should be set aside, and in lieu thereof verdict and judgment for the plaintiff for $423,892 taking effect on 6 March 2001. No order for costs. Liberty to apply in relation to a different order for costs by reason of an offer of compromise to be exercised by notice of motion filed within seven days accompanied by written submissions; responsive submissions to be filed within a further seven days, and unless either the Court or one of the parties wishes to have a hearing the application will be decided on the written submissions.

CA 40411/01
DC 7011/98

STEIN JA
GILES JA
HODGSON JA

Monday 11 March 2002

BAYSARI v WALKOM

Judgment

1 STEIN JA: I agree with Giles JA.

2 GILES JA: This is a defendant’s appeal from a decision of English DCJ in a motor accident case. The accident occurred on Thursday 21 December 1995. The trial before her Honour occupied seven days in the period 20-29 March 2000. Judgment was given on 6 March 2001. The plaintiff obtained a verdict and judgment for $611,786.85. The trial judge’s reasons required some extrapolation, but it was common ground that the damages comprised -

Non-economic loss $127,800.00
Past economic loss $113,950.00
Future economic loss $275,298.00
Domestic assistance $43,535.00
Past out-of-pocket expenses $16,903.85
Future out-of-pocket expenses $24,500.00
Lost superannuation $9,800.00
Total $611,786.85

3 The defendant’s submissions in the appeal challenged the trial judge’s decision in relation to -

(a) the defendant’s negligence;
(b) the plaintiff’s contributory negligence;
(c) causation;
(d) the assessment of non-economic loss;
(e) the assessment of past and future economic loss; and
(f) the assessment for domestic assistance.

The defendant’s negligence

4 The accident occurred when the plaintiff and the defendant were leaving a service station on Epping Road at North Ryde. The plaintiff was driving a Holden sedan. The defendant was driving a Toyota van. The plaintiff and the defendant gave differing accounts of how the accident occurred.

5 According to the plaintiff his sedan was stationary in the exit driveway of the service station, waiting for a break in the traffic in order to go into Epping Road. The van came from the bowser area of the service station and hit the sedan on its right side on the driver’s door and driver’s side front mudguard. The plaintiff first saw the van when it was very close to the sedan, one and a half or two metres away. There was a “dint” on the door and mudguard, enough that there was some interference when opening the door and that when the plaintiff drove away he found that the right front tyre scraped on the mudguard. Because of the scraping, the plaintiff later had the sedan towed to a car repairer. He reported the accident to the police, and in the report said “Standing to go and this car hit me on the right hand side guard”.

6 According to the defendant his van was stationary in the exit driveway of the service station, waiting for a break in the traffic in order to go into Epping Road. He was looking to his right, from where the traffic was coming. A car in Epping Road “gave me the way to go in”, and he “rolled [his] van to go in”. He hit the sedan, which the defendant said had come up on his left hand side and he had not seen. The blinker on the passenger’s side front of the van hit the sedan “in the archway” of its front wheel, causing damage “like a small golf ball, small round damage in the top of the arch”. The defendant assessed the damage at about $200. He reported the accident to the police, and in the report said “I was exiting drive of service station. I was at edge of driveway and road. No other vehicles in driveway. A car let me through and I accelerated into lane 1. Other vehicle came from my left and hit me front passenger side.” In a letter to the plaintiff’s insurer written for the defendant by his daughter it was said the van was the only vehicle in the driveway and “as I veered to my left and accelerated to enter lane closer to me, your client’s vehicle hit the front left hand side of my van”.

7 As can be seen, the plaintiff and the defendant differed not only on how the accident occurred but also on the extent of the damage to the sedan. That played a part in the trial judge’s decision.

8 Early in her reasons the trial judge summarised the plaintiff’s account of the accident. After dealing with other matters in the plaintiff’s case, she summarised the defendant’s account of the accident. She referred to the evidence of a tow truck driver, who happened to be at the service station and said that there was a “fairly big dent” in the driver’s side front mudguard of the sedan but that he did not think either vehicle needed towing.

9 The finding as to negligence appeared in the following passage -

“Having listened to the oral testimony of the plaintiff and the defendant I am satisfied that on the evidence of the defendant alone that the plaintiff has made out his case in negligence against the defendant. That is that the defendant drove his van in a westerly direction across the service station premises to the eastern exit where he accelerated onto the eastern driveway whilst looking to his right towards the direction of the approaching traffic. He did not see the plaintiff’s vehicle prior to impact. I find therefore that the defendant failed to keep a proper lookout and he collided with the plaintiff’s vehicle causing a big dent as described by the independent witness the tow truck driver.
The plaintiff’s evidence is further corroborated by Doctor Henderson, the defendant’s expert. In his report Doctor Henderson has perused the NRMA property damage assessment claim lodged by the plaintiff following his motor vehicle accident. The damage to the plaintiff’s vehicle required repairs costing $1574. According to Doctor Henderson the NRMA records confirms that the plaintiff’s vehicle was towed. I am satisfied that the dent was sufficient to cause the mudguard to press against the tyre of the vehicle resulting in the vehicle being taken to the panelbeater for repair as evidenced by Doctor Henderson’s report.”

10 The defendant submitted that the trial judge’s reasoning to negligence on his part was flawed. He said that the trial judge had found negligence on his part from his evidence alone, but that on his evidence he had not been negligent because there was no want of care in the manner he had sought to leave the service station: he had acted properly in keeping his attention fixed on the traffic to his right, and there was no occasion to look to his left against the possibility that another vehicle would illicitly come up beside him and impede his entry into Epping Road.

11 Even on the defendant’s reading of the trial judge’s reasons, I do not think this can be accepted. Although there was no explicit evidence of its width, from a photograph in evidence the exit driveway was wide enough for two vehicles abreast. The plaintiff said that it was a “wide exit area” but that “only one can get out at a time” because there would be a collision: this underlines the need to guard against a collision when two vehicles use the exit driveway. On the defendant’s account of the accident, the van must have been so positioned that there was room for another vehicle to come up on its left, and reasonable care required that the defendant pay attention to the possible presence of another vehicle.

12 But I do not think that the defendant is correct in reading the trial judge’s reasons as resting his negligence on his evidence alone. Although it was not well expressed, in my opinion in what the trial judge said she intended to accept the plaintiff’s account of how the accident occurred. She had summarised the two accounts. On the defendant’s account he had not “accelerated onto the eastern driveway whilst looking to his right towards the direction of the approaching traffic”, but had been stationary in the exit driveway. On the plaintiff’s account, the defendant must have accelerated onto the driveway while looking to his right. On the evidence of the defendant he had not seen the sedan prior to impact, and that meant that on his own evidence he had not kept a proper lookout. That is what the trial judge meant when she referred to the evidence of the defendant alone; she accepted the plaintiff’s account of how the accident occurred and found in the defendant’s admitted failure to see the sedan that the defendant had been negligent.

13 This reading of the trial judge’s reasons is confirmed, to my mind, by the reference to corroboration of the plaintiff’s evidence by Dr Henderson. Corroboration of the plaintiff’s evidence would not matter unless the trial judge had accepted the plaintiff’s account of how the accident occurred, and so she could not have rested the defendant’s negligence on the defendant’s evidence alone. The corroboration lay in the fact that the towing and the repair cost supported damage to the extent related by the plaintiff rather than the minimal damage related by the defendant: thus the plaintiff’s account of the accident in other respects, compared with the defendant’s account, was to be preferred.

14 In my opinion, the finding that the defendant was negligent should not be disturbed.

Contributory negligence

15 This is related to the matter last dealt with. The trial judge said nothing about contributory negligence. The defendant again focussed on the trial judge’s reference to the evidence of the defendant alone. He submitted that, even if on his account of how the accident occurred he had been negligent, the plaintiff had been contributorily negligent in coming up on his left hand side so as to impede his entry into Epping Road.

16 It is not necessary to enter into whether, on the defendant’s account of how the accident occurred, there was contributory negligence. If, as in my opinion is the case, the trial judge accepted the plaintiff’s account of how the accident occurred, then there was no question of contributory negligence. That is why the trial judge said nothing of it.

Causation

17 On the plaintiff’s case, when the van hit the sedan his right foot slipped off the brake pedal of the sedan and was twisted into an unnatural position between the brake and the accelerator; his ankle was a bit sore and swollen, and became more sore and swollen in the ensuing days and weeks; and the trauma to the ankle led to septic arthritis with a profound effect on the ankle. The defendant raised two issues of causation. The first was whether the plaintiff’s ankle was affected all in the accident. The second was whether the septic arthritis was a consequence of the effect on the ankle. The two issues merge, but it is convenient to consider them separately.

18 Both issues must be considered in the light of the plaintiff’s earlier ankle problems and the diagnosis of septic arthritis.

19 The plaintiff was born on 21 August 1964. He was educated to year 9, but suffered from dyslexia and found school difficult. After leaving school he worked as a car detailer and a shop assistant, and then for a manufacturing company. After turning eighteen he took up bar work, and he obtained a security licence and worked as a security officer in nightclubs and hotels. In July 1990 he obtained employment as a security officer with MSS Security. He was in that employment at the time of the accident.

20 The plaintiff had a history of problems with his right ankle. On 27 August 1976 he attended Royal Newcastle Hospital with “recurrent sprains both ankles”. On 25 March 1979 he attended the hospital with “inversion injury to ® ankle”. He attended the hospital on 5 May 1983 complaining of painful and swollen right ankle following a sprain some ten days before. A provisional diagnosis of ligament damage was made. He was admitted to the hospital on 28 September 1983, with the wider complaint of recurrent swelling of the right ankle over the previous four years following an injury, and x-rays suggested an osteochondral defect in the lateral aspect of the talus. Surgery on 29 September 1983 found an abnormal area on the anterolateral aspect of the neck and body of the talus impinging on the articular margin, which area was resected and the underlying bone drilled. A large post-operative wound haematoma developed. It was evacuated surgically on 4 October 1983. A wound swab grew a penicillin resistant staphylococcus aureus, and there was persistent discharge from the wound for over four weeks. Fever and blood counts also indicated wound infection. Eventually the wound healed and the ankle recovered, but in January and February 1984 the plaintiff returned to the hospital complaining of aching and swelling when walking.

21 There had also been problems with the plaintiff’s left ankle. The attendance at Royal Newcastle Hospital on 27 August 1976 related to the left ankle also. In December 1985 the plaintiff attended the hospital complaining of spontaneous swelling in the left ankle. In September 1992 and again in December 1992 he sprained his left ankle, and on each occasion was off work for two or three weeks. In June 1983 he had pain and a lump in the left ankle, and on 1 July 1994 he injured his left ankle leading to an arthroscopy and ligamental reconstruction in October 1994: this was a significant procedure, and the plaintiff was off work for seven and a half months. In the latter part of 1995 the plaintiff had continuing pain and swelling in the left ankle.

22 Following the accident the plaintiff went to a doctor on 23 December 1995, to a hospital on 25 December 1995, and to another hospital on 29 December 1995: I will return to these attendances in more detail. He went to his general practitioner on 5 January 1996 and on four occasions in January-March 1996 complaining of persistent pain and swelling in the right ankle. Eventually he was referred to Dr Grujic, the orthopaedic surgeon who had performed the arthroscopy and ligamental reconstruction on the left ankle in October 1994, who found the ankle grossly swollen and aspirated the joint to remove an old blood clot. X-rays and a CT scan ordered by Dr Grujic and review by him on 5 March 1996 led to a diagnosis of septic arthritis of the right ankle. Immediate surgery for arthroscopic drainage and debridement was performed. Approximately 20 mls of frank pus and cartilaginous debris was extracted, and arthroscopic examination showed a pocket of infection within the central talus. Staphylococcus aureus was grown on culture, the same organism as that isolated in 1983.

(a) Was the ankle affected in the accident?

23 The plaintiff said that as he drove away from the service station his right ankle was sore and a bit swollen. Later in the day it was swollen to the extent that he had to take his shoe off, when he got home in the afternoon after arranging for the towing of his car it was still sore and swollen, and the next day it was “up like a balloon, swollen”. In cross-examination the plaintiff agreed that he realised shortly after the accident that he had injured his ankle.

24 The defendant’s case included that the plaintiff‘s right ankle had not been affected in the accident, that there had not been these immediate effects, and that the problems with the ankle undoubtedly experienced weeks and months after the accident were the result of some other trauma or of spontaneous development of pain and swelling on the day following the accident. The trial judge found -

“I am satisfied that as a result of the negligence of the defendant the plaintiff sustained injury to his neck, right shoulder and ankle consistent with lateral impact and consistent with the plaintiff’s description of his foot becoming jammed between the brake pedal and the accelerator. The plaintiff’s evidence is supported by contemporaneous hospital records. Whilst the defendant attempted to persuade me that I should be satisfied that something occurred to the plaintiff’s ankle on the Friday between the motor vehicle accident and his attendance at the Triple 333 Medical Centre [sic] I cannot make that leap in logic.”

25 The trial judge went on to refer, in connection with the cause of the septic arthritis, to “the trauma sustained to the plaintiff’s ankle during the motor vehicle accident”.

26 The defendant submitted that this finding was not consistent with the plaintiff’s report of the accident to the police or with the histories recorded when the plaintiff went to the doctor and the hospitals in the days following the accident, and that the plaintiff’s evidence was in truth not supported by contemporaneous hospital records. Great weight was placed on the plaintiff’s agreement that he realised immediately after the accident that he had injured his ankle.

27 The plaintiff reported the accident to the police on 21 December 1995. He filled out a form which had yes and no boxes for the question “Was any person killed or injured?”. He put a cross in the no box. The defendant said that the answer was inconsistent with the plaintiff’s evidence of injury in the accident. When taxed with the answer, the plaintiff said that he filled the form out with the assistance of a police officer, that as a result of discussion with the police officer he thought the question meant serious injury, and that the police officer said to answer no because no one was seriously injured.

28 The plaintiff consulted Dr Hor on 23 December 1995. Dr Hor’s notes were not in evidence. His report dated 9 April 1996 was in evidence only for the history it recorded. It included -

“Mr Walkom’s main complaint was pain and swelling of his right ankle from the previous day . There was no recent history of acute injury . I was told by him that he had had some operation of his right ankle in the past.
On examination, his right ankle was swollen all around, tenderness was noted over the joint and the movement of the ankle was painful in all directions. Movement of the toes and knee were normal. There was no indication of circulatory problem. As there was no history of injury or sprain , clinical examination did not reveal the fracture or ligament sprain. My diagnosis was arthritis of the joint due to gout or previous injury.” (emphasis added)

29 The defendant said that the history taken by Dr Hor was significant in two respects, first that the pain and swelling was said to have been “from the previous day”, that is, the day after the accident, and secondly because there was “no recent history of acute injury” and “no history of injury or sprain”; more generally, the defendant said that the report was significant because it made no mention of a motor vehicle accident. When asked about going to Dr Hor the plaintiff said that he could not remember what he told Dr Hor. It was put to the plaintiff that he had not mentioned going to Dr Hor in worker’s compensation proceedings and, in substance, that he knew the report was inconsistent with his case of injury in the accident. Again in substance, he denied the knowledge and any intent to deceive.

30 The plaintiff went to Mt Druitt Hospital on 25 December 1995. The Emergency Department clinical record recorded -

“PI: 31 y o ? Presenting with acute onset painful/swollen ® ankle
HPI: ? Post MVA Thursday; nil injury
? has been +ingly painful swollen since
? saw LMO Saturday, & told ? arthritis”

31 The hospital report written for the plaintiff’s doctor included -

“31 year old ? presenting with acute onset painful/swollen
® ankle since Friday 201295. MVA Thursday
with no apparent injury O/E temp 37.6ú C, painful swollen ® ankle,
mostly soft tissue. XR-NAD. EVC/FBC/ESR
NAD.
Impression soft tissue injury from MVA”.

32 The defendant said that the references to “nil injury” and “no apparent injury” were not consistent with injury to the plaintiff’s ankle in the accident, and that the pain and swelling were described as “since Friday” when the accident had occurred on Thursday. (The obviously wrong date was passed over.) It was put to the plaintiff that he “complained of the first trouble with your ankle occurring on the Friday”, and he said “That would have been about right, yes” and “But it had started to swell up Thursday”. He was firm that the pain and swelling began on the Thursday; he put an ice pack on his ankle; the pain and swelling got worse; then he went to the doctor.

33 On 29 December 1995 the plaintiff was taken by ambulance to Westmead Hospital. The ambulance record included “Pt stated he was in a MVA (illegible) ago injuring ® ankle which was diagnosed as soft tissue damage. Pt stated pain & suffering has increased since accident”. The triage assessment at the hospital included “Pt MVA last week R ankle injury. Soft muscle injury, Pt now presents after stating ankle swelling and increasing pain”. Later medical records clearly enough linked the ankle condition with the accident. For this issue on causation the defendant relied on the early records.

34 I do not think that the records are such that the trial judge’s finding was not open to her. There was no injury by breaking of the skin. Consistently with the soreness and swelling of which the plaintiff gave evidence, he could initially have told the police and Dr Hor that there had not been an injury in the sense of a serious injury. Dr Hor’s report first referred to no recent history of acute injury, and when he later referred to no history of injury or sprain he could well have meant the same thing, an incident of acute trauma. Although he gave evidence, he was not asked about this. Contrary to the defendant’s submission, the Mt Druitt Hospital records and report did link the ankle condition with the accident, and the report in particular is illuminating in that it refers to soft tissue injury from the accident while noting pain “since Friday” and that there had been “no apparent injury”.

35 In my view the hospital records do support the plaintiff, showing complaint within a few days after the accident of pain and swelling starting with the accident and increasing as time went by, and the defendant reads too much into Dr Hor’s report. Undoubtedly Dr Hor referred to pain and swelling “from the previous day”, but Dr Hor could have meant that the pain and swelling had been present on the previous day without excluding its presence, perhaps less intensely, at an earlier time: if he did mean from the previous day only, it is not unknown for there to be error in a doctor’s appreciation of what he was told. The trial judge saw and heard the plaintiff, and I do not think that this Court is in a position to say that his evidence of pain and swelling immediately following the accident and thereafter increasingly could not or should not have been accepted.

(b) Was the septic arthritis a consequence of the effect on the ankle?

36 The trial judge found that the septic arthritis was “caused by the trauma sustained to the plaintiff’s ankle during the motor vehicle accident”, saying that she preferred the evidence of Dr Grujic. Dr Grujic said that the infection could have developed without any precipitating factor. He also said that it was unusual to develop septic arthritis of a joint following a closed injury. But he said that it could happen with either a blood borne infection or the reactivation of an existing infection by the trauma inflicted on the ankle, and in his opinion, although the plaintiff’s right ankle had recovered and was asymptomatic after the 1983 surgery, the temporal relationship between the accident and the plaintiff’s symptoms and the common organism indicated that there had remained a small nidus of infection which was reactivated in the accident.

37 The defendant first submitted that Dr Grujic’s opinion depended on accepting that there was the temporal relationship, that is, that the pain and swelling came immediately following the accident rather than on the next day, and that there was not the necessary temporal relationship. Here in particular the two causation issues merged. It is sufficient that the defendant’s challenge to the finding that the ankle was affected in the accident, and that there was pain and swelling immediately after the accident and thereafter increasingly, has not been successful. In this respect Dr Grujic’s opinion was soundly based. The trial judge found a temporal relationship.

38 The defendant then submitted that the plaintiff had nonetheless not discharged his burden of proof, because Dr Grujic spoke in term of possibility of reactivation of an existing blood borne infection or nidus of infection rather than of probability. Dr Grujic did speak of possibility, but there was more to his evidence.

39 In an operative report dated 5 March 1996 following the surgery on that day, Dr Grujic said that the plaintiff “has septic arthritis which has been triggered by his injury in December”. In a comprehensive medico-legal report dated 5 January 2000 he carefully analysed available materials and summarised his opinion -

“3. I am of the opinion that the sepsis diagnosed by me in March 1996 was, on the balance of probabilities, caused by the accident on 21st December, 1995. I believe had this accident not occurred, Mr Walkom’s ankle would have remained asymptomatic. As mentioned previously, it is very unusual to develop a septic arthritis of a joint following a closed injury and there is no history of even a small abrasion on the ankle, which may have introduced infection. Thus one must assume that the infection was either haematogenous (blood borne) infecting a haematoma or haemarthrosis in the ankle or that a small dormant nidus of infection from the surgery in 1983 was re-activated by the trauma. Both these possibilities are extremely unusual occurrences.
4. Of all of these possible causes of sepsis, it is my view that the most probable cause in Mr Walkom’s case was related to the trauma of the right ankle on 21 December, 1995. As mentioned previously, had this trauma not occurred, I believe Mr Walkom’s ankle would have remained asymptomatic.”

40 In cross-examination Dr Grujic said -

“Q. You are struck by the time association of what you have been told and what you have found at the other end of the period on 5 March?
A. Yes, but I have to piece it together, I have to find a cause for this infection and I have to look at the possibilities and find the most likely cause.
Q. You say the nidus is the most likely cause?
A. In my opinion.
Q. Although it is only possible?
A. Yes.”

41 Although a number of possible causes are put forward, a court may not be satisfied on the balance of probabilities that any one of the possibilities caused the event. Sherlock Holmes’ assertion to Dr Watson, that “when you have eliminated the impossible, whatever remains, however improbable, must be the truth”, does not hold good in law, amongst other reasons because a court has the third alternative of saying that the party with the burden of proof has not discharged the burden: see Rhesa Shipping SA v Edmunds (1985) 1 WLR 948 at 951, 955-6. But I do not think that Dr Grujic’s evidence was of that kind. He was saying that, of the possible causes of the infection found in March 1996, he considered the most likely cause was reactivation of a nidus of infection by the trauma suffered in the accident. It was not just a case of postulating a number of possible causes, but a case of determining from all the circumstances which of the possible causes was the most likely; and the selected cause was, on the balance of probabilities, the cause of the infection.

42 The defendant finally submitted that in preferring the opinion of Dr Grujic the trial judge had paid insufficient regard to or overlooked the contrary opinions of Dr Henderson, Dr Cummine and Dr Thomson.

43 The trial judge said -

“The defendant relies upon the opinion of Doctor Michael Henderson, a medical practitioner, who specialises in accident investigation and the biomechanics of injury. Whilst he dismisses the accident as causing a fracture of the talus or any other bone in the plaintiff’s ankle, he accepts that it is possible that in light of the existing problems within the ankle that the plaintiff could have experienced pain as a result of what he describes as minor trauma. This of course flies in the face of the findings of an undetected fracture of the dome of the talus in the plaintiff’s ankle and necrosis of underlying bone in the talus, yet Doctor Henderson concedes that when an original talus fracture is missed the bone nearly always dies. Long term disability is a common sequel. Necrosis of the part of the talus fractured in the subject accident is usually the result of trauma. The report does not take into consideration the description of the right foot slipping sideways and being twisted between the brake pedal and the accelerator pedal.
Additionally the defendant relies upon the opinion of Doctor John Cummine. He examined the plaintiff on 15 February 1997 and has provided opinions following that examination and consideration all of the medical reports in Doctor Henderson’s report. At the time of the initial consultation Doctor Cummine did not have the benefit of Doctor Grujic’s opinion. Additional information was supplied and a report prepared dated 23 June 1999. He also confirms that the plaintiff has suffered from osteomyelitis to the talus, subsequently developed an exacerbation which breached the subcondural bone causing septic arthritis of the joint. However, Dr Cummine thought it unlikely that there was a direct causal connection between the motor vehicle accident and the exacerbation of the osteomyelitis. This of course was based upon the history of the trivial nature of the impact as described by the defendant. Doctor Cummine was clearly influenced by the report of Dr Henderson which in my view has led him into error.”

44 The defendant submitted that the dismissal of the opinion of Dr Henderson was at least in part on a false basis, in that the radiology did not disclose a fracture (although there was a lytic lesion).

45 Dr Henderson had reasoned in his report, in essence, that the plaintiff’s pain was “found to be possibly related to a previously undetected fracture of the dome of the talus” (meaning not detected in the medical examinations immediately after the accident); that the accident could not have caused such a fracture because the forces involved were insufficient; therefore the accident did not cause the plaintiff’s condition; rather, the plaintiff’s condition was likely to have been the result of “an ongoing pathological process”. The reasoning was curious, since it used a possibility to reach a definite conclusion, but putting that aside the trial judge correctly saw it as also depending on Dr Henderson’s opinion of the forces necessary to bring a fracture. Having regard to what she said about the opinion of Dr Cummine, it is tolerably clear that the trial judge considered that Dr Henderson assumed a more minor collision than in fact occurred, and that the forces in the accident must have been greater than he thought.

46 Nonetheless the trial judge’s treatment of Dr Henderson’s report was not satisfactory. In truth, the report was of little weight because it reasoned from a false basis. Nor did it counter Dr Grujic’s opinion, since Dr Grujic’s opinion did not depend on a fracture or on forces in the accident sufficient for a fracture – only trauma enough to reactivate the infection. Dr Henderson was called, and was asked to comment on the opinion of Dr Grujic . Successful objection was taken on the ground that an appropriate report had not been served. In the result, in my view, the trial judge was entitled to prefer the opinion of Dr Grujic.

47 In an early report Dr Cummine said that the 1983 infection could have lain dormant for many years and recurred for no apparent reason, and also that it was “unlikely that there is a direct causal relationship between the motor vehicle accident and the exacerbation of the osteomyelitis”. The only reasoning apparent was that “[i]t appears that the injury was relatively trivial, judged by the sworn statement of the other driver”.

48 Dr Cummine was reminded that he may have confused the accident on 21 December 1995 with another accident. He wrote in a further report -

“I note in particular that the patient was not rendered unconscious, alighted unaided but was barely able to stand.
He was aware of immediate ache in the right ankle which was swollen, but he went on to work as he was carrying a firearm and then sat and rested through the day. I further note that the following day he attended his own doctor, and a sprain was diagnosed in that ankle, and a crepe bandage applied and he was advised to rest it. In connection with the nature of forces involved in the accident on 21.12.95, I then consulted a report of Mr Michael Henderson dated 19.10.99. I have also now had the opportunity to examine a report of Dr Grujic, dated 27.2.96, and note that it was approximately two days after the accident that the patient’s ankle became swollen.
From these combined sources it appears to me that if there was an injury to the right ankle it was trivial and the remainder of my opinion as contained in my earlier report stands.”

49 Dr Cummine did not give oral evidence. The report of Dr Grujic of 28 February 1996 (presumably the report of 27 February 1996 to which Dr Cummine referred, since it reported on a consultation on 27 February 1996, it mentioned swelling two days after the accident, and there was no other appropriately dated report) did not deal with whether the accident caused the septic arthritis. In my view the trial judge was entitled to regard Dr Cummine’s opinion as resting upon the assumed triviality of the effect on the ankle in the accident, and it did not answer the reasoning of Dr Grujic; further, the trial judge accepted that there was immediate pain and swelling in the ankle, so that basis for Dr Cummine’s opinion fell away.

50 The trial judge made no mention of Dr Thomson. Dr Thomson relevantly said in a report dated 17 September 1997 -

“This patient has sustained a fairly minor injury to the right ankle joint in a motor vehicle accident. Apparently the vehicles were not travelling at any significant speed and his right foot slipped off the brake pedal and on to the floor.
He visited a number of doctors and also Westmead Hospital suffering from apparent swelling of the right ankle, although initially there were no complaints of trouble from his right ankle. The history is somewhat confused and it appears that initially he was suffering from a soft tissue injury of the ankle joint.
Subsequently he developed a septic arthritis of the right ankle treated by Dr Grujic on 5.3.96. This was 2½ months after the stated injury when he apparently did not definitely relate any serious injury to his right ankle at the time of the accident.
It would appear that the accident and occurrence of septic arthritis in the right ankle are unrelated incidents. It may be that the occurrence of the septic arthritis was a blood borne infection which was coincidental occurring some 2½ months following the reported accident.”

51 Dr Thomson did not give oral evidence. His opinion was plainly influenced by absence of temporal connection between the accident and the symptoms, which the trial judge’s findings falsifies, and he also did not squarely address the reasoning of Dr Grujic.

52 There was really no medical evidence taking issue with Dr Grujic’s reasoning, and the contrary opinions were not weighty. It is perhaps surprising that the defendant did not seek better to counter Dr Grujic’s opinion, but he did not. I do not think the defendant has shown that the trial judge’s preference for the opinion of Dr Grujic was erroneous. It may be added that, although the trial judge did not rely on them, the opinions of Dr Ellis and Dr Endrey-Walder broadly supported that of Dr Grujic.

Non-economic loss

53 After the finding that the septic arthritis was caused by the trauma occasioned to the ankle in the accident, the trial judge said -

“I find that the plaintiff’s ability to lead a normal life is significantly impaired. I assess the proportion which his impairment bears to a most extreme case at 45 per cent.”

54 At this point in the reasons no further explanation was given. The defendant submitted that the basis for the finding and assessment was inadequately explained, and that the 45 per cent was appealably excessive.

55 Non-economic loss as regulated by the Motor Accidents Act 1988 means pain and suffering, loss of amenities of life, loss of expectation of life, and disfigurement. Only the first two were relevant to the plaintiff’s claim. The trial judge did not make express findings as to either.

56 In going through the plaintiff’s treatment until the diagnosis of septic arthritis the trial judge recorded his complaints of increasing pain and swelling in the ankle, and of associated low back pain which she found to have been caused by his altered gait following the injury to the ankle. Even after treatment for the infection, pain and swelling remained until the end of 1996, when a period of hospitalisation brought improvement. By her award of damages for domestic assistance to February 1998 the trial judge must have accepted that the plaintiff was inhibited in his normal activities as well as by the effects of surgery, and she apparently accepted that an attempt to work in 1999 failed “due to the pain he experienced and an increase in his disability”: in fact the plaintiff said only that after two hours his feet were aching. The plaintiff gave evidence, apparently accepted by the trial judge, that depending on activity and weather he still got pain, that his right ankle became sore and swollen after an hour or more of activity and ached in cold weather and that he had back pain from time to time. The trial judge also gave damages for future economic loss on the basis that the plaintiff’s earning capacity had been diminished although he was fit for “some form of suitable light work”, and allowed a sum for future out of pocket expenses which appears to have included an amount for arthrodesis.

57 But there was less than complete acceptance of a pain-filled future. Arthrodesis would remove pain, although leaving a stiff ankle. Even before arthrodesis the plaintiff was fit for light duties, and the trial judge declined to allow damages for domestic assistance after February 1998, saying that “having regard to his activities seen on the video I am not satisfied that he requires further domestic and/or personal assistance … “. The video, in fact videos, were described by the trial judge -

“Video film was taken on 23 July 1998, 25 July 1998, 3 September 1998, 7 September 1998 and 2 December 1998. In the earlier footage the plaintiff is seen at times to display a limp whilst carrying out some tasks such as washing his car and carrying groceries. However, at other times during the same film he appears to be quite agile, able to squat and wash the wheels of his car. By the time the video was taken on 2 December the plaintiff was seen to wash his car, work in a confined space, such as washing the inside of the back windscreen and doing what could only be described as detailed polishing of his motor vehicle. Any limp displayed could only be described as minimal.”

58 As to loss of amenities of life, the trial judge’s determination of the effect his condition had on the plaintiff’s life must be found in essentially the same materials as those just described. The plaintiff did not give evidence of an effect on recreational or social activities of the kind often encountered. His interest seemed to be his car, as to which the trial judge’s impression from the videos was significant.

59 The plaintiff reminded us that assessments such as that presently in question are of their nature not capable of full explanation. I would prefer not to adopt the plaintiff’s description of such assessments as “intuitive”: in Dell v Dalton (1991) 23 NSWLR 528 at 533 Handley JA said that finding that a particular case is or is not a most extreme case “will involve questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of commonsense and judgment”. Nonetheless the facts to which the commonsense and judgment are to be applied must first be isolated.

60 Although barely, I consider the trial judge’s reasons sufficiently revealed her findings as to pain and suffering and loss of amenities of life. There was discomfort, sometimes debilitating, for a considerable time after the accident. There was surgery and hospitalisation. Some pain would continue although not such as to prevent light work or ordinary domestic activities. The plaintiff would be inhibited to some extent in his working and personal life, but the trial judge can not have regarded the effect as major. In my opinion, the trial judge’s assessment of 45 per cent of a most extreme case was appealably excessive. I do not belittle the effect of the accident on the plaintiff. Nonetheless, taking quadriplegia as an example of a most extreme case, I cannot accept that the plaintiff is nearly half way along the scale to such a condition. In my opinion the severity of his non-economic loss could not exceed, and should be assessed at, 30 per cent of a most extreme case.

61 Thus the $127,800 for non-economic loss becomes, in accordance with the Motor Accidents Act, $65,320.

Economic loss

62 After referring to the plaintiff’s schooling and work history, the trial judge said -

“The plaintiff ceased work on 25 December 1995 and has not worked since. He made an attempt at performing some work at the Westfield Shopping Centre handing out applications for credit cards, but found the standing aggravated his ankle and he was unable to continue with the work.
The plaintiff referred himself to the Commonwealth Rehabilitation Service in August 1996. He was assessed as unfit to resume work as a security officer and/or bar attendant due to his physical limitations on standing, stair climbing, squatting and walking. He was assessed suitable for process work or taxi driving, however Doctor Kuok certified the plaintiff unfit for taxi driving work due to cramping of his leg which would place his passengers and indeed himself at risk. No further attempts have been made at rehabilitation.
At the time of cessation of his employment the plaintiff says his net weekly income was $450 per week. The employer’s report of injury form certifies the plaintiff’s pre injury earnings at $560.84. that appears to me to be a gross figure and allowing for deduction of taxation I am satisfied that the appropriate net weekly wage rate is $450 per week.
The plaintiff was certified unfit for employment by Doctor Grujic until February 1998 when Doctor Grujic considered him fit for sedentary duties which did not involve prolonged standing, walking, climbing or running. This plaintiff of course competes on unequal terms in the open labour market, he having undergone surgery to his left ankle and at times been disabled by left ankle symptoms. He had, however, managed to return to work following each occasion of injury to his left ankle and it is his evidence that the left ankle by November 1999 was fine and he was experiencing little or no problems with his left ankle.”

63 The trial judge later said -

“The plaintiff’s pre injury work was that of a security officer. On the evidence of Doctor Grujic I am satisfied that he was totally incapacitated for that employment from the date of accident until 10 February 1998 when Doctor Grujic assessed him as suitable for some form of light sedentary work. The plaintiff was assessed as suitable for retraining as a taxi driver, however, Doctor Kuok determined that due to ongoing disability in the plaintiff’s right ankle and leg he would place himself and any passengers at risk and such an occupation would be unsuitable. The plaintiff did make an attempt to undertake work at Westfield Plaza, but was unable to continue with that work due to the pain he experienced and an increase in his disability.
The consensus of medical evidence is that the work of a security officer of the nature he was doing is beyond him and will never again be within his capacity. Whilst the plaintiff has been assessed by the medical practitioners as unfit to perform the duties of barman, general labour or security officer, he has been assessed as suitable for employment in some sedentary vocation and I therefore find that he is fit for some form of suitable light work.
There is no evidence before me of what his comparable employees in the security industry are now earning. There is no evidence before me of the income of a process worker or console operator or other sedentary vocation. Taking judicial notice, as I do, of the current average weekly earnings of an Australian male at $800 per week I find that the plaintiff is entitled to past economic loss from 10 February to date, being a period of 160 weeks at a weekly wage loss of $400 per week, he being fit for some sedentary form of employment.
In respect of the future the plaintiff would have continued to work until age sixty five, in my view a reasonable assessment of his capacity to earn over his future might be taken to be such as would leave him with a continuing net loss of $400, an assessment that takes into account those periods when he might be able to earn a more substantial wage in regular full-time light employment, those periods when he might earn only limited sums and those periods when he might be unemployed altogether, either directly because of his incapacity caused by his ankle injury or more probably by his inability to obtain suitable employment should he lose any job which might become available to him.
I accept that as a proper assessment of his future economic loss he is entitled to the sum of $275,928 under this head. The discount applied in respect of vicissitudes was fifteen per cent.”

64 It is apparent that the trial judge used $450 per week as the measure of the plaintiff’s lost earning capacity for 111 weeks from the date of the accident until 10 February 1998 and $400 per week as the measure of the plaintiff’s lost earning capacity, for 160 weeks thereafter and for the future. 10 February 1998 was when Dr Grujic certified the plaintiff as fit for light duties. The defendant did not challenge the $450 per week, but submitted that the $400 per week was erroneous.

65 It is far from clear how the trial judge arrived at the $400 per week.. On one view she took the earning capacity of $450 per week and valued the plaintiff’s residual earning capacity at $50 per week. If that were so, said the defendant, there was at least two problems. One was that the trial judge’s apparently integral reference to the current average weekly earnings of $800 per week was inexplicable. The other was that, accepting that the trial judge was without evidence, $50 per week for “some form of suitable light work” did not accord with experience from similar cases.

66 The plaintiff suggested a different view. He said that the figure of $560.84 used to support the plaintiff’s evidence of his net weekly income may not have been a gross figure. It was the figure written in a report of injury form by MSS Security for “Worker’s Pre-injury Average Weekly Ordinary Time Earnings”, with an adjacent figure of $740.13 written in for “Worker’s Pre-injury Average Weekly Gross Earnings”. What was meant by these descriptions was not explained. The same employer wrote in a certificate of earnings form for the plaintiff’s “Gross normal earnings” the figure of $777.20, from the next entry it seems there being no overtime earnings, and after deduction of tax wrote in for “Total net earnings” the figure of $577.90: this itself is suspect because the tax was said to be $151.10, so either the tax was wrong or the net earnings should have been $626.10. The plaintiff submitted that $450 per week was not a true measure of the plaintiff’s earning capacity, because his wages in and before December 1995 were depressed by an injury to his left ankle whereby he was on light duties, and he suggested that the forms were intended to give the wages he would have earned if fully fit. If so, it was said, the trial judge had taken the $800 per week as an approximate equivalent to the $777.20, had accepted the evidence that the left ankle impairment was effectively overcome by surgery in September 1999, and had therefore made a much greater allowance for residual earning capacity. Indeed, it was suggested that the trial judge had taken $450 as “the net worth of [the plaintiff’s] right ankle” and reduced it to $400 as a kind of early discount for vicissitudes.

67 There are problems with this also, quite apart from the complexity of the unexpressed reasoning. The report of injury form and the certificate of earnings appeared to speak of the plaintiff’s actual earnings, not notional earning capacity. But they were inconsistent and obscure, between themselves and internally. The plaintiff’s evidence that as at 21 December 1995 he was earning $900 net per fortnight must be a better guide – after all, the plaintiff would know and had no reason to depress the figure. And the plaintiff’s evidence included that when he went back to work on light duties after the injury to his left ankle there was no alteration to his pre-injury wages, from which it followed that the $450 per week was a measure of his earning capacity if fully fit, and his income tax returns approximately reflected those normal earnings. Consistently with the evidence, the trial judge can not have reasoned as the plaintiff suggested, and if she had the economic loss before 10 February 1998 would have been different and the economic loss before and after September 1999 would have differed: it was not and it did not.

68 I do not think that the reasons were satisfactory in this respect. Both the plaintiff and the defendant asked that this Court reassess if necessary. The confusion left in the plaintiff’s case should be resolved, in my opinion, by taking the plaintiff’s own evidence of his normal wages, $450 net per week, as the measure of his earning capacity. Left to do the best it can, the Court should then make an allowance for the residual earning capacity found by the trial judge, which in my opinion should be $150 per week. Thus the measure of the lost earning capacity after 10 February 1998 is $300 per week.

69 The damages for past economic loss should be reduced by $16,000 to reflect lost earning capacity from 10 February 1998 at $300 per week. Further, from 8 December 1998 to October 1999 the plaintiff would have been incapacitated for work by his left ankle condition and an operation on that ankle. The damages should be reduced by a further $13,000 because the plaintiff’s wage loss over that period was not attributable to the accident.

70 The trial judge took a swings and roundabouts approach to future economic loss. The $275,298 (incorrectly $275,928 in the reasons) was $400 per week with a 29 year multiplier of 809.7 less 15 per cent. Apart from the figure of $400, the defendant’s complaint was that her Honour had allowed too small a discount for vicissitudes. The defendant said that, given the problems the plaintiff had encountered with his ankles in the past and might encounter in the future quite apart from the effect of the accident, a greater discount than 15 per cent should have been made. The plaintiff responded that the problems with the left ankle had effectively been overcome by the surgery in September 1999 and, because the $450 per week was the plaintiff’s earnings whilst on light duties, the future economic loss already had built into it a discount appropriate to the possibility of other future ankle problems.

71 The second part of the response is not soundly based, see earlier in these reasons, and in my opinion more than the conventional discount for vicissitudes was appropriate. Further, in the application of the swings and roundabouts approach it seems to me that there was an imbalance between when the plaintiff might be able to earn more than the $400 per week and when he might be earning only limited sums or be unemployed. Future events can be positive as well as negative, see for example, Norris v Blake (No 2) (1997) 41 NSWLR 49 at 73, but taking the full measure of the lost earning capacity for the future made no allowance for the possibility of limited employment or unemployment, and that was hardly balanced by the possibility of earning more in regular full time light employment. In my view the future economic loss is best assessed by recalculation using $300 per week and, given the plaintiff’s relative lack of skills and his more than usual physical susceptibility, a discount of 25 per cent. The recalculated figure is $182,183.

Domestic assistance

72 The trial judge said -

“The plaintiff makes a substantial claim in respect of gratuitous services. I accept on the evidence that from the date of the accident until 4 March 1996 when he was living in a home unit above ground level his mother provided him with an average of thirty five hours per week by way of gratuitous services. Accepting the plaintiff’s submissions in that regard I award the plaintiff the sum of $7,650 in respect of that period. Between 5 March 1996 and 30 September 1996 when the plaintiff was recovering from surgery I accept the plaintiff’s submission that he required twenty six and a half hours gratuitous services per week and he is therefore awarded the sum of $11,445 in respect of that period. For the period 1 October 1996 to 31 December 1996 [sic: 1997] which period also included an admission to Mona Vale District Hospital in November 1996, the plaintiff is entitled to twenty three hours gratuitous assistance per week in accordance with submissions made on his behalf and accordingly I award him the sum of $22,354 in respect of that period. For the period March 1997 [sic: January 1998] to February 1998 I award the plaintiff the sum of nineteen and a half hours gratuitous services and he is entitled to the sum of $2,086 in respect of that period.
Thereafter the plaintiff seeks domestic and handyman assistance in accordance with the recommendations of AP Care and Doctor Endry Walder [sic]. However, having regard to his activities seen on the video I am not satisfied that he requires further domestic and/or personal assistance and I decline to award him any further assistance.”

73 Under the Motor Accidents Act compensation for the value of domestic assistance is not to be awarded if the services are provided or to be provided for less than six hours per week and for less than six months, or if the services would have been provided even if the person had not been injured by the motor accident. The defendant submitted that the plaintiff’s needs were incorrectly assessed and that, correctly assessed, they did not satisfy either pre-condition. The submission was not greatly developed. In essence, it was said that if the trial judge considered that the plaintiff was not in need of domestic assistance from February 1998 because the videos showed that he had the ability to fend for himself, he must have had that ability for at least a substantial period prior to February 1998. The plaintiff responded that the plaintiff’s evidence, when taxed with the videos, was that he was only able to do what was shown in them with the aid of painkillers and had to get off his feet or lie down afterwards, so that the videos really did not have the impact against his case that the trial judge attributed to them. There was no cross-appeal on the ground that the domestic assistance should have continued beyond February 1998.

74 I do not think that grounds have been shown to intervene in the trial judge’s assessment. February 1998 must have been taken as the time when Dr Grujic certified that the plaintiff was fit for light duties, and the plaintiff’s evidence of continuing disability can not have been accepted to the full. Before February 1998 the trial judge had the assistance of Dr Grujic’s opinion that the plaintiff was not fit for work, and the videos gave content to Dr Grujic’s opinion that after February 1998 he was fit for light duties. In my opinion it was open to her Honour to accept the plaintiff’s evidence, and that of his mother, as to the need for domestic assistance in the first few years, particularly as the plaintiff underwent surgery and some hospitalisation in those years. No doubt there was not an abrupt change, but it was open to her Honour to conclude that in the spectrum from considerable need for domestic assistance to no need for domestic assistance February 1998 marked not only the plaintiff’s movement from unfitness to fitness for work but also his movement from needing domestic assistance to no longer needing domestic assistance. It follows that the requirements of the Motor Accidents Act were met.

The result

75 The plaintiff’s damages are reduced by $184,595. Nothing was said about lost superannuation, but it must be less if the economic loss is less, and the $9,800 should become $6,500 – the basis for the figures is such that mathematical precision is illusory. So the damages are reduced by a further $3,300. Nothing was said about interest, the trial judge did not allow interest, and it must be taken that the parties agreed that the Motor Accidents Act precluded interest of any kind. The verdict and judgment for $611,786.85 should be set aside, and in lieu thereof there should be a verdict and judgment for the plaintiff for $423,892 taking effect on 6 March 2001.

76 The defendant had some success on appeal, but far less than the challenges it undertook. Equally, the plaintiff unsuccessfully defended not insignificant elements in his damages. No order for costs of the appeal should be made, leaving each of the plaintiff and the defendant to pay his own costs. However, we were informed that an offer of compromise may affect the disposition of costs. It may be, of course, that the offer of compromise will not be material or that the parties are able to agree on any different disposition of costs in the light of the offer of compromise and file a consent variation. Liberty to apply in relation to a different order for costs by reason of an offer of compromise should be granted, to be exercised by notice of motion filed within seven days accompanied by written submissions; responsive submissions to be filed within a further seven days, and unless either the Court or one of the parties wishes to have a hearing the application will be decided on the written submissions.

77 HODGSON JA: I agree with Giles JA.

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