Black v Young

[2015] NSWCA 71

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Black v Young [2015] NSWCA 71
Hearing dates:	16 March 2015
Decision date:	27 March 2015
Before:	Basten JA at [1]; Sackville AJA at [2]; Adamson J at [63]
Decision:	1. Appeal dismissed. 2. The appellant pay the respondent’s costs of the appeal.
Catchwords:	TORTS – assessment of damages- motor vehicle accident - whether back injury caused by accident - assessment of economic loss – whether psychological injury resulted in diminished earning capacity - domestic assistance – whether award of a “buffer” involved error
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 126
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 Black v Young (District Court, 13 December 2013, unrep) Penrith City Council v Parks [2004] NSWCA 201 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Category:	Principal judgment
Parties:	N Black (Appellant) J Young (Respondent)
Representation:	Counsel: J Sexton SC / J Reimer (Appellant) A Black SC (Respondent) Solicitors: Brydens Lawyers (Appellant) Curwoods Lawyers (Respondent)
File Number(s):	2014/8555
Decision under appeal	Court or tribunal: District Court Date of Decision: 13 December 2013 Before: Truss DCJ File Number(s): 2013/39645

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 11 June 2009, the appellant was injured in a motor vehicle accident. Liability was admitted and the primary Judge (Truss DCJ) awarded the appellant damages for economic loss. The appellant appealed against the assessment of damages.

The principal issues on the appeal were:

(1)   Did the primary Judge err in finding that the appellant’s lower back condition was not caused by the accident?

(2)   Did the primary Judge err in not awarding damages for diminution of earning capacity due to the appellant’s psychological condition attributable to the accident?

(3)   Did the primary Judge err in awarding a “buffer”?

Held, (per Basten JA, Sackville AJA and Adamson J), dismissing the appeal:

In relation to (1):

Contrary to the appellant’s submissions, there was no internal inconsistency in the primary judgment. The primary Judge was entitled to find that the appellant’s back symptoms did not appear until some weeks after the accident. On that basis, no error has been shown in the finding that the condition was not causally related to the accident: (at [46], [49], [50])

In relation to (2):

The evidence did not address the extent to which (if at all) the appellant’s psychological condition, insofar as it was attributable to the accident, affected her capacity to earn income. More specific evidence was important because the financial records, as the primary Judge found, did not suggest that her neck injury and psychological condition had a marked adverse effect on her earning capacity: (at [58])

In relation to (3):

The primary Judge did not err in awarding a buffer, nor was the sum awarded outside the range having regard to the evidence before her. The authorities establish that a claimant must establish a diminution in earning capacity resulting from the injury he or she has sustained, but is not required to identify with precision the value of that loss. It is not inconsistent with legislation in the form of s 126 of the Motor Accidents Compensation Act 1999 (NSW) Act in appropriate cases to award a buffer to compensate an injured person for the possibility that he or she may suffer economic loss in the future as the result of a loss of capacity to earn income: (at [55], [59])

Considered: Allianz Australia v Kerr [2012] NSWCA 13; 83 NSWLR 302; State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536; Penrith City Council v Parks [2004] NSWCA 201

Judgment

1. BASTEN JA: I agree that the appeal should be dismissed with costs, for the reasons given by Sackville AJA.

2. SACKVILLE AJA: This is an appeal from a decision of District Court (Truss DCJ) awarding damages to the appellant by reason of injuries sustained in a motor vehicle accident which occurred on 11 June 2009: Black v Young (District Court, 13 December 2013, unrep). Liability was admitted and the only issue at the trial was the assessment of damages. The appellant contends on the appeal that the damages awarded to her for economic loss and in respect of domestic assistance were inadequate.

The Issues

3. The primary Judge gave judgment for the appellant in the sum of $115,250, made up as follows:

Past economic loss	$31,850
Past loss of superannuation	$3,503
Future economic loss	$45,000
Future loss of superannuation	$6,300
Past out of pocket expenses	$11,953.09
Future out of pocket expenses	$9,000
Past care	$7,644
TOTAL:	$115,250

4. There was no dispute at the trial that the appellant suffered a neck injury as a result of the accident. She also claimed that she had suffered a lower back injury and experienced continuing psychological difficulties in consequence of the accident. These claims were disputed.

5. The primary Judge found that the appellant had not established that her back condition was caused by the accident. Her Honour accepted that the appellant had suffered a psychological injury in consequence of the accident, but did not accept that the injury reduced her earning capacity to the extent that she claimed.

6. The appellant’s grounds of appeal identify two errors said to have been committed by the primary Judge. The first concerns her Honour’s finding that the appellant’s lower back injury was not caused by the accident. The appellant contends that this finding is based on a misapprehension of the evidence, in particular the appellant’s own evidence as to when she first experienced back pain after the accident.

7. The second error identified by the appellant is that the primary Judge failed to explain why she did not award damages for diminution of earning capacity in consequence of the psychological condition sustained by the appellant. The appellant submits that the evidence supports a finding that her earning capacity was diminished by reason of her psychological condition to a greater extent than recognised by the primary Judge in her award of a “cushion” of $45,000.

8. The appellant in her written submissions invites the Court, should she succeed in her principal submissions, to reassess damages. However, in his oral submissions Mr Sexton SC, who appeared with Mr Reimer for the appellant, accepted that there might be difficulties in this Court attempting to perform that task. His alternative submission was that the proceedings should be remitted to the District Court for a reassessment of damages.

Factual Background

9. On 11 June 2009, the appellant dropped her son at school very early, as he was attending a camp. She manoeuvred her vehicle out from the kerb and stopped at a pedestrian crossing in order to allow children to pass. Her vehicle was at an angle of about 75 degrees from the kerb when it was struck forcibly by the respondent’s vehicle.

10. At the time of the accident, the appellant was 37 years of age and, as the primary Judge found (at [4]), she was “healthy, energetic and vivacious”. She has four children, aged between 10 and 18 at the date of the accident.

11. Both before and after the accident, the appellant conducted a distribution business, which she operated from her home under a business name. The business had at that time (and apparently retained at the date of the trial) contracts with two large organisations for the distribution of advertising material. In addition, the appellant’s business performed work for smaller local businesses. The organisations with which the appellant had contracts delivered advertising material to her home. She was responsible for sorting the material into piles which were collected and delivered by walkers. The walkers were paid directly by the organisations.

12. At the time of the accident, the business was the appellant’s sole source of income, other than Government benefits. The evidence showed that in the 2008-2009 financial year (the accident occurring in the last month of that year), the appellant derived net income from the business of $44,942 on a turnover of $129,592. In the financial year following the accident, the appellant derived a net income of $35,835 from the business on a turnover of $120,993.

13. On 15 June 2010, the appellant entered into a fixed term contract of employment with Spectrum Sales. The contract was for a period of eight and a half months and was to terminate on 1 March 2011. The appellant received a base salary of $42,000 per annum plus a car allowance of $12,500 per annum. The fixed term contract was not renewed beyond its expiry date.

14. The business continued to operate in the 2010-2011 financial year and thereafter until the trial. However, while the appellant was working at Spectrum Sales, she had little involvement in her own business. During that period, the business was largely conducted by Ms Barton, a friend of the appellant.

15. Ms Barton continued to work in the business after the appellant ceased to be employed by Spectrum Sales. Ms Barton’s evidence, apparently accepted by the primary Judge, was that she worked about one full day per week. The appellant did the administrative work, while Ms Barton did the rest, including the physical work.

Primary Judgment

The Appellant’s Back Complaint

16. The primary Judge first considered whether the appellant had injured her back in the accident. Her Honour found (at [6]) that the appellant was shocked and could not recall being in pain immediately after the accident. She was taken by her partner on the day of the accident to see Dr Seville, a General Practitioner. Dr Seville saw the appellant on six occasions between the day of the accident and 16 July 2009.

17. Dr Seville’s report, prepared on 4 August 2009, stated that by 8.00 am on 11 June 2009, the appellant noticed pain in her neck, radiating down her right arm to the forearm. Dr Seville’s diagnosis was a whiplash injury. He referred the appellant for an x-ray, which disclosed no fracture of the neck.

18. Dr Seville also referred the appellant to a neurosurgeon, Dr Levy. Dr Levy’s diagnosis was exacerbation of chronic migraine headaches, daily tension-type headaches and persistent cervical pain following the whiplash injury (at [9]). He gave advice concerning appropriate medication and suggested an MRI scan, which showed that the brain was normal. An MRI of the cervical spine showed mild degenerative changes at C4/5 and C5/6 with no canal stenosis or nerve root compression (at [10]).

19. In a passage criticised by Mr Sexton, the primary Judge said this (at [11]):

“The [appellant] tendered four reports from Dr Woo, orthopaedic surgeon. On 6 December 2010 he recorded a history that the [appellant] had neck, back and right arm pain two hours after the accident. The [appellant’s] evidence was that initially the pain was in her neck and right arm and that she developed pain in the back and down her leg some weeks later. She said that initially her neck and arm pain were more severe and concerned her more than the pain in her back.” (Emphasis in original.)

20. The primary Judge referred (at [13]) to a report from Ms Pennicook, a physiotherapist who treated the appellant on 17 occasions between 30 June and 22 September 2009. Ms Pennicook’s report, dated October 2013, recorded that the appellant had presented with considerable pain in her neck and head. Ms Pennicook stated that after the first six treatments (that is, by the end of July 2009), the appellant had more range of movement, but was frustrated that her symptoms were continuing. Ms Pennicook went on to say (at [14]) that:

“I noted at this time also that there was pressure sensitivity on the mid and lower back. When this was raised I tried to assess and treat her pelvis a few times [in August], as the lower back is often involved in MVA [motor vehicle accidents] especially if the foot is on the brake pedal [at] the time of impact.”

The primary Judge observed (at [15]) that Ms Pennicook did not say in her report that the appellant made any complaints of lumbar pain, although the appellant said in her evidence that she had complained of lumbar pain to Ms Pennicook (at [15]).

21. The primary Judge then referred (at [16]) to the report of Dr Lowy, an Occupational Physician, Dr Lowy first examined the appellant at the request of the respondent’s insurer on 12 April 2010, some 10 months after the accident. Dr Lowy recorded the following history:

“[The appellant] is concerned and unhappy about the decline in her whole person physical status. She describes herself as an active, independent woman who has lost these components since the onset of her lower back and right leg pain ‘in about August 2009’; she cannot remember the month of onset in 2009. There was no immediate precipitating event and [the appellant] assumed that this was a late effect of the MVA of June 2009 …”

Dr Lowy also stated his opinion that the appellant’s back had become her “dominant problem” from 2009 until he examined her.

22. The primary Judge found (at [18]) that the first contemporaneous report of lower back symptoms was made by Dr Rankin, who examined the appellant on 12 October 2009 at the request of the respondent’s insurers. Dr Rankin reported that the appellant complained of lower back pain, pain down the back of both her legs and paraesthesia of both legs. Dr Rankin was unable to offer any useful opinion as to the appellant’s actual diagnosis.

23. The primary Judge concluded (at [19]) as follows:

“It is clear from the evidence that the [appellant] does suffer chronic back pain with leg symptoms and that her back condition appears to be getting worse. The only diagnosis which emerges from the evidence appears to be strain injury. The court has considered carefully the evidence in relation to the [appellant’s] back. She bears the onus in relation to causation and the court is not persuaded that in the accident she injured her back principally because of the late onset of symptoms.”

The Appellant’s Neck Injury

24. The primary Judge then dealt with the injury to the appellant’s neck. Her Honour found (at [20]) that although the appellant’s symptoms in her back were considerably more severe than in her neck, she also suffered constant pain in her neck, with restriction of movement and pins and needles in her right arm.

25. The primary Judge referred again (at [23]) to Dr Lowy’s report of 12 April 2010. Dr Lowy concluded on the basis of his examination on that day that the appellant had suffered a whiplash type injury which had resolved within a matter of weeks. When Dr Lowy re-examined the appellant on 3 June 2013, he recorded that the appellant emphasised her neck and trapezius region pain and discomfort more than in April 2010. Dr Lowy concluded that any work incapacity or reduced capacity to engage in domestic duties was due to the appellant’s back problems which, in his view, were unrelated to the accident (at [24]).

The Appellant’s Psychological Condition

26. The primary Judge then turned to the appellant’s case that she had suffered a post traumatic stress disorder with a pain syndrome and depressive features in consequence of the accident. The primary Judge said (at [25]) that there was no dispute that the appellant had suffered a psychological injury arising from the accident, although there had been various opinions as to its nature. Her Honour accepted (at [26]) that the appellant was a different person at the date of the trial than she had been before the accident.

27. The primary Judge summarised (at [28]) the assessment prepared on 20 October 2010 by Mr Glancey, a psychologist, at the request of the appellant’s solicitors. Mr Glancey:

“accepted that the [appellant] had been traumatised by the accident and fears that her car had collided with nearby pedestrians contributed to the trauma of the accident. He also noted that she had reported suffering chronic pain since the accident and observed that pain as reported serves to reinforce memories of the accident. Her history did however suggest to him that the incidents of mental activity associated with the accident had declined with the passage of time and that at the time of the consultation the pain and physical restrictions appeared to be the greater source of stress in her life. In his view the diagnosis adjustment disorder with anxiety and depressed mood was supported by symptoms of mental disturbance as reported to be evident at the time of the consultation. He recommended a course of treatment by a psychologist.”

In a subsequent report, Mr Glancey concluded that the appellant suffered from a chronic pain condition with associated physical restrictions (at [29]).

28. The primary Judge referred to reports prepared by two psychiatrists, Dr Williams and Dr Smith. Dr Williams saw the appellant on six occasions between September and November 2011. According to the primary Judge (at [30]), Dr Williams considered that:

“the most appropriate psychiatric diagnosis was a chronic post traumatic stress disorder and that whilst her depressive symptomology is part of such disorder and secondary to it he was not persuaded that it warranted a co-morbid diagnosis of major depression although he said this could develop if this treatment was not successful”.

29. The primary Judge quoted (at [32]) Dr Williams’ opinion in a report of 13 December 2011:

“In relation to her capacity to return to her pre-accident employment, I believe it is unlikely that she will get back to the performance of which she was capable pre-accident, even if the treatment of the psychiatric problems is 100% successful. I am sure that she will be able to continue working, but probably shorter hours, and less efficiently. In the even[t] that I am unsuccessful in restoring her to a functional state with her psychiatric problems, there would be permanent impairment, but I am sure that she will continue working in some capacity, since she is a most resourceful and self motivated woman”.

30. Dr Smith assessed the appellant, at the request of the respondent’s solicitors, on 18 July 2013. The primary Judge recorded (at [36]) Dr Smith’s diagnosis that the appellant was suffering from an adjustment disorder with mixed depressed and anxious mood, chronic in duration. In Dr Smith’s opinion, the appellant was focussed on her pain and significant psychological factors were playing an important role in the severity, exacerbation and maintenance of her pain (at [37]). However, Dr Smith expressed the opinion that from a psychiatric point of view the appellant was not incapacitated for work (at [38]). He reported that her main restrictions had been physical and these had caused her to delegate to others tasks that she could previously perform. He also expressed the opinion that, from the psychiatric point of view, there was no requirement for any restrictions to be placed on the appellant in regard to her capacity to work and that she did not require care or domestic assistance as the result of psychological injuries she sustained in the accident.

Economic Loss

31. The primary Judge referred (at [43]) to the appellant’s evidence that following the accident she needed assistance to conduct her business. That assistance was provided for a time by her partner, who helped her with lifting and sorting pamphlets and doing some deliveries. The appellant then engaged Ms Barton to assist her on a part time basis. Ms Barton’s evidence was that she started to assist the appellant because she (the appellant) found the physical aspects of the business too difficult for her (at [43]).

32. The primary Judge rejected (at [47]) the appellant’s claim that the fixed term contract with Spectrum would have been renewed but for the health issues and that she had suffered economic loss in consequence. Her Honour said that:

“the difficulty with the [appellant’s] submissions is that the contract was clearly stated to be a fixed term contract and there was no corroborative evidence from Spectrum Sales to the effect that but for the [appellant’s] health she would have been offered a further contract. In any event to the extent to which her work capacity with Spectrum Sales was affected by her back symptoms, which on the [appellant’s] evidence appeared to be the major issue at the time, that is not compensable in these proceedings.”

33. The primary Judge referred (at [50]) to the appellant’s evidence that after her employment at Spectrum Sales had come to an end, she tried to return to her business but had difficulty doing the heavy lifting and was not very well emotionally. The business had continued, with Ms Barton effectively running it, apart from the administrative tasks performed by the appellant.

34. The primary Judge set out (at [42], [52]) a schedule of the appellant’s earnings before and after the accident. Her Honour said it was curious (at [53]) that the appellant’s earnings for the year ended 30 June 2010 were similar to those of the previous financial year (in which the accident occurred) and that the moneys paid to contractors were more or less the same in each year.

35. The primary Judge approached the assessment of past economic loss as follows:

“[55]   In determining economic loss the court accepts that so far as conducting her business is concerned the plaintiff’s capacity was reduced as a consequence of her neck especially in the early stages although the evidence suggests that over time this incapacity was eclipsed by the plaintiff’s back problems which now appear to be the major factor given the physical aspects of the business. To this needs to be added the incapacity flowing from her psychological condition which has been addressed by the medical practitioners in the defendant’s case.

[56]   Quantifying the plaintiff’s economic loss is not an easy task. The plaintiff’s net earnings for the year before the accident were $784 and $818 for the following year. The court proposes the proper amount to be awarded to be:

On the basis of an average of $200 net per week for the first twelve months until the plaintiff commenced with Spectrum Sales	$10,400
For the period where the plaintiff was employed by Spectrum Sales	Nil
For the period February 2011 to date at the rate of $150 net per week for 2.75 years taking an average figure to reflect the fluctuations in the figures of the business and the more significant incapacity due to her back	$21,450
Total	$31,850

[57]   Past loss of superannuation at 11% is $3,503.”

36. Her Honour dealt with future economic loss as follows:

“[58]   The court considers that the plaintiff is entitled to an award for future loss of earning capacity although quantifying this on the basis of a weekly amount is extremely difficult. The evidence does not in the court’s view support the assessment advanced by the plaintiff’s counsel, namely $850 per week to age 67 discounted.

[59]   It is now four and a half years since the accident and it is necessary to have regard to the fact that the neck injury was of a soft tissue nature. The plaintiff’s psychological condition could not be regarded as permanent and in any event the evidence as to any incapacity flowing from such condition is scant. What also needs to be factored in is the incapacity flowing from the plaintiff’s back condition.

[60] Section 126 requires the court to have regard to the plaintiff’s most likely future circumstance but for injury.

[61]   In cross-examination the plaintiff accepted that the taxation records suggest that the business has been doing as well as before the accident but asserted that it would otherwise have grown more. There was however no evidence from the plaintiff as to how the business was likely to grow and what her plans for expansion were before she had the accident.

[62]   For these reasons the court concludes that future economic loss ought to be awarded on the basis of a cushion and that the proper amount is $45,000. This is roughly based on an allowance of $150 per week for 6 years discounted, or a lesser amount for a longer period.

[63]   Future loss of superannuation at 14% is $6,300.”

Domestic Assistance

37. The primary Judge found (at [74]) that the medical evidence did not support any need for domestic assistance in the future because of the psychological injury, although she accepted that the [appellant] had become “somewhat pain focused”. Her Honour pointed out (at [78]) that the only diagnosis of the appellant’s neck injury was a soft tissue strain. However, her Honour found (at [76]) that the appellant had established a need for domestic assistance due to her neck restrictions and that the proper allowance was six hours per week for the first year after the accident.

Reasoning

Causation

38. Mr Sexton submitted that the primary Judge should have found that the appellant experienced lower back pain very soon after the accident. Mr Sexton contended that the primary Judge’s finding (at [19]), that the appellant had not discharged the onus of proving that her back condition was causally related to the accident, depended on her Honour correctly finding that there was a gap of at least some weeks between the accident and the onset of the appellant’s symptoms. If the appellant had in fact experienced lower back pain almost immediately after the accident, so Mr Sexton argued, the primary Judge’s reasoning could not stand.

39. Mr Sexton accepted that Dr Seville’s report gave no indication that the appellant had complained of back pain in any of the six consultations that Dr Seville had with her between 11 June 2009 and 16 July 2009. But he submitted that the appellant had given uncontradicted evidence that she had experienced back pain from the outset and that the primary Judge had failed to deal with this evidence.

40. Mr Sexton identified what he said was an internal contradiction in para [11] of the Primary Judgment (reproduced at [19] above). The contradiction was between the third sentence (the appellant developed pain in her back “some weeks later”) and the final sentence (she said that initially the neck pain was more severe and concerned her more than the back pain).

41. The passage of evidence on which Mr Sexton relied was in the appellant’s evidence in chief. The passage (including some preliminary questions) is as follows:

“Q.   You told [Dr Seville] about the accident?

A.   Yes.

Q.   What did he do for you, or what treatment did he provide?

A.   He gave me painkillers and said that I had a, like a whiplash.

Q.   I think he sent you off for some X-rays and you consulted him again?

A.   I had to go back to--

Q.   For the results?

A.   --see him again, yes, I did.

Q.   In those first days and weeks after that accident, how were you feeling?

A.   I was in pain and still in shock.

Q.   Where was the pain?

A.   Initially it was mostly in my neck and down my, down my right arm, but I also had pain in my back and down my leg.

Q.   I think there’s no secret in this case that the back problem doesn’t seem to have emerged for at least some weeks?

A.   Yes.

…

Q.   I don’t want to and I’m not allowed to cross-examine you, but are you able to explain why you didn’t tell Dr Sevill [sic] about the back, if it was a problem from the first?

A.   Because the neck the arm were concerning me more, there was more pain there than the back initially.”

42. It is difficult to see how the last question and answer in this passage can be read as asserting that the appellant experienced lower back pain more or less from the outset. The appellant’s counsel asked her to confirm that it was “no secret” that the back problem did not emerge “for at least some weeks”. She did indeed confirm that proposition. The next question and answer has to be understood in context. The fifth question in the passage directed the appellant’s attention to “those first days and weeks after the accident”. The appellant then accepted that the back problem did not emerge for several weeks after the accident. The final question and answer can only be understood as meaning that she did not complain about back pain during the period when she was seeking Dr Seville (a period that continued until five weeks after the accident), because she was more concerned about her neck pain than her back pain. The answer cannot be understood as a claim that, notwithstanding the previous question and answer, the appellant experienced lower back pain immediately or very shortly after the accident.

43. This interpretation of the appellant’s evidence is supported by a passage in her cross-examination as follows:

“Q.   See, what I want to suggest to you is the first complaint you made of back pain was on 12 October, that is, a bit over four months after the accident to your GP.

A.   I had mentioned it beforehand to my physiotherapist.

Q.   I’m suggesting to you that – and I have to do this because if I want to make a submission I have to ask you this – what I’m suggesting to you is that this problem that you say you have with your back is not consequent upon this motor vehicle accident and it’s unrelated to it. What do you say to that?

A.   You can suggest away. I had no back pain beforehand. Not like this.

Q.   So you disagree with that proposition, do you?

A.   I do disagree with that proposition.”

44. The appellant saw the physiotherapist on 17 occasions between 31 June 2009 and 22 September 2009. The physiotherapist’s report, referred to by the primary Judge, stated that after the sixth visit (which took place on 28 July 2009, some seven weeks after the accident) she noted that there was “pressure sensitivity” on the appellant’s lower back. In her cross-examination the appellant said that she mentioned her back condition to the physiotherapist, but she never specified when she did so. Leaving aside that the physiotherapist’s report does not record the appellant mentioning back pain, the appellant’s evidence is quite consistent with the primary Judge’s finding as to the delayed onset of symptoms.

45. There was other evidence supporting the primary Judge’s finding. Dr Lowy’s report of 12 April 2010 records that:

“[The appellant] cannot be specific about the onset of her experiencing low back pain, more on the right side with progressive buttock and right leg symptoms. She thinks it was some time in 2009 but cannot be specific.

This has become her dominant problem from that time in 2009 to the present time.

There is no record of any lumbar region pain or right leg pain in any of the abovementioned medical reports.”

Later in the report Dr Lowy records that the appellant thought that the onset of her back pain occurred in about August 2009.

46. Read in the light of the evidence, there is no inconsistency between the third and fourth sentences of para [11] of the Primary Judgment. The third sentence accurately summarises the appellant’s evidence as to the onset of symptoms. The fourth sentence accurately summarises her evidence as to the relative levels of pain from her neck and back, once the back pain manifested itself.

47. The difficulties facing the appellant’s argument seem to have been apparent to the appellant’s counsel at the trial. No submission was made to the primary Judge that her Honour should find that the appellant experienced back pain almost immediately following the accident. Counsel seems to have agreed with a comment made by the primary Judge during oral argument that the appellant’s back symptoms first appeared some weeks after the accident occurred.

48. Counsel submitted at the trial that the “temporal connection” between the appellant’s back condition and the accident was established “even if it’s down to some three or four months”. Counsel was apparently submitting that even though there was a delay between the accident and the onset of lower back symptoms, a causal link between the two could be established. The primary Judge did not accept the submission and Mr Sexton did not repeat it in this Court.

49. Mr Sexton correctly acknowledged that the appellant’s case on causation at trial rested principally on the evidence of Dr Woo, an orthopaedic surgeon. Dr Woo expressed the opinion that the appellant had suffered strain injuries to both her neck and back and that those injuries were consistent with the history of the accident. However, Dr Woo’s opinion assumed the accuracy of the information with which he was provided. He was informed that the appellant reported pain in her back within two hours of the accident. Mr Sexton accepted that once a finding is made that the appellant’s back symptoms did not appear until some weeks after the accident, no reliance can be placed on Dr Woo’s opinion as to causation.

50. For these reasons, the appellant’s first submission fails.

Psychological Injury

51. Mr Black SC, who appeared for the respondent, acknowledged that some aspects of the primary Judge’s reasoning are “expressed somewhat obscurely”. Her Honour’s reasons for rejecting the appellant’s claim that the failure to renew her fixed term employment contract was causally related to the accident are clear enough. It is also clear, despite suggestions in the appellant’s written submissions to the contrary, that the primary Judge found that the appellant suffered psychological injury as a consequence of the accident. (Her Honour’s award for future out of pocket expenses included an allowance for treatment in respect of her psychological injury.) But her Honour’s analysis of the relationship between the appellant’s psychological condition, insofar as it can be attributed to the accident, and her diminished earning capacity is not entirely clear.

52. One complaint by the appellant is that the primary Judge did not resolve the conflict between the opinion of Dr Williams and Dr Smith. Her Honour summarised the substance of the psychiatric reports, but did not expressly state which opinion she preferred. Her Honour accepted (at [55]) that in determining economic loss, it was necessary to take into account the incapacity flowing from the appellant’s psychological condition “which has been addressed by the medical practitioners in the defendant’s case”.

53. Mr Black interpreted the reference to the “defendant’s case” in [55] as a mistake for the “plaintiff’s case”. In any event, he did not submit that [55] should be read as expressing a preference for Dr Smith’s opinion over that of Dr Williams. The consequence is that Mr Sexton is correct to submit that her Honour did not resolve the difference of opinion between the psychiatrists.

54. Another apparent omission in the judgment, although Mr Sexton did not complain about it, is that the primary Judge referred (at [60]) to s 126 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act), but did not explain how the section operated in the present case. Section 126 provides as follows:

“126   Future economic loss—claimant’s prospects and adjustments

(1)   A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)   When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3)   If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

55. The authorities establish that a claimant must establish a diminution in earning capacity resulting from the injury he or she has sustained, but is not required to identify with precision the value of that loss: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [25] (Basten JA), referring to State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [70]-[71] per Heydon JA. It has been accepted since Penrith City Council v Parks [2004] NSWCA 201, that it is not inconsistent with legislation in the form of s 126 of the MAC Act in appropriate cases to award a buffer to compensate an injured person for the possibility that he or she may suffer economic loss in the future as the result of a loss of capacity to earn income: Allianz Australia v Kerr at [67] (Macfarlan JA); at [3] (McColl JA); at [30] (Basten JA)

56. Her Honour rejected (at [58]) the appellant’s submission that she should be awarded damages assessed at $850 per week until age 67, subject to the usual discounts. Instead her Honour considered (at [59]-[62]) that this was an appropriate case to award a buffer or “cushion” for future economic loss, which she assessed at $45,000. Her Honour’s reasons for doing so are expressed economically, but she took into account a number of matters:

• the appellant’s neck injury was of a soft tissue nature and over time had been eclipsed by the appellant’s back problems (at [55]);

• the appellant’s back problems were the major factor in limiting her involvement in the business, since they affected her physical capacity to perform tasks (at [55]);

• the back problems were unrelated to the accident and thus were not compensable (at [47]);

• the appellant’s psychological condition could not be regarded as permanent (at [59]);

• in any event, there was “scant evidence” relating the appellant’s psychological condition to any incapacity for work (at [59]);

• the evidence suggested that the business had been doing as well after the accident as before (at [61]); and

• while the appellant submitted that the business would have grown even more but for her injuries, there was no evidence as to how the business would grow or that the appellant had any plans for expansion prior to her accident (at [61]).

57. I did not understand Mr Sexton to dispute that it was open to the primary Judge to rely on the matters I have identified as supporting her decision to award a sum as a buffer, subject to one qualification. He submitted, however, that a passage in the appellant’s evidence established a link between the psychological condition and a diminished earning capacity. The passage is in the appellant’s examination in chief as follows:

“Q.   Very well, then, you stopped working with Yellow Pages at the end of February 2011?

A.   Yes.

Q.   Did you go back to your business, or try to?

A.   I tried to.

Q.   What happened when you tried? How did you get on?

A.   Struggling, struggling.

Q.   When you say struggling, just in detail, what were the problems?

A.   Just physically and emotionally.

Q.   Yes, physically first.

A.   Physically I, I just couldn’t do the heavy lifting. It was just – I was in too much pain, I couldn’t do the things that I used to do.

Q.   And emotionally how were you getting on?

A.   Not really well.”

58. This evidence is at a high level of generality and does not differentiate between the appellant’s physical difficulties (most of which her Honour found not to be causally related to the accident) and her emotional difficulties. Nor does it descend into particulars as to how her emotional state impaired her capacity to earn income. More specific evidence was important because the financial records, as the primary Judge found, did not suggest that her physical and psychological injuries (leaving aside her lower back condition) had a marked adverse effect on her earning capacity.

59. In these circumstances I do not think that the appellant has shown that the primary Judge was in error in awarding a buffer, nor that the sum awarded was outside the range having regard to the evidence before her.

60. Mr Sexton also challenged, albeit rather faintly, the primary Judge’s conclusion that she could not be satisfied that the appellant’s contract with Spectrum Sales had not been renewed because of health problems attributable to the accident. The primary Judge correctly recorded (at [47]) that the appellant believed that the failure to renew the contract was because she was experiencing physical and emotional difficulties associated with the accident. But her Honour was entitled to rely on the absence of evidence from the appellant’s employer and the general nature of the appellant’s evidence, which did not differentiate between her lower back condition and other problems that might have been causally related to the accident. The award for past economic loss has not been shown to be affected by error.

Domestic Assistance

61. The appellant’s challenge to the primary Judge’s rejection of the claim for damages for domestic assistance falls away with the rejection of her other arguments.

Orders

62. The appeal must be dismissed. The appellant must pay the respondent’s costs.

63. ADAMSON J: I agree with Sackville AJA.

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Decision last updated: 27 March 2015