BROADHURST -v- DEL PINO [2005] WASCA 82

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 82
Court:	THE FULL COURT (WA)
Case No:	FUL:184/2003	Heard:	11 NOVEMBER 2004
Coram:	MALCOLM CJ MCLURE J SIMMONDS J	Delivered:	5/05/05
No of pages:	48	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	ANDREW FREDERICK BROADHURST ANDRES JONATHON DEL PINO
Catchwords:	Negligence Motor vehicle accident Liability admitted Causation Whether injury was accident related Assessment of damages Whether a reduced capacity for manual work Past economic loss Future economic loss Adequacy of reasons Failure to resolve conflicts of evidence Error of law Whether appeal court can resolve matter
Legislation:	Nil
Case References:	Baum v Greenhalgh [2003] WASCA 62 Bennett v Minister for Community Welfare (1992) 176 CLR 408 Jones v Dunkel (1959) 101 CLR 298 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 Tran v Claydon [2003] WASCA 318 Westrac Equipment Pty Ltd v King [2004] WASCA 188 Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 Dessent v Commonwealth of Australia (1977) 51 ALJR 482 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Mifsud v Campbell (1991) 21 NSWLR 725 Pettitt v Dunkley [1971] 1 NSWLR 376 Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Wright v Shire of Albany (1993) Aust Tort Reports 81-239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BROADHURST -v- DEL PINO [2005] WASCA 82 CORAM : MALCOLM CJ

MCLURE J

SIMMONDS J

HEARD : 11 NOVEMBER 2004 DELIVERED : 5 MAY 2005 FILE NO/S : FUL 184 of 2003 BETWEEN : ANDREW FREDERICK BROADHURST

Appellant

AND

ANDRES JONATHON DEL PINO

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : HH JACKSON DCJ

Citation : DEL PINO -v- BROADHURST [2003] WADC 268

File No : CIV 1058 of 2001

Catchwords:

Negligence - Motor vehicle accident - Liability admitted - Causation - Whether injury was accident related - Assessment of damages - Whether a reduced capacity for manual work - Past economic loss - Future economic loss

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Adequacy of reasons - Failure to resolve conflicts of evidence - Error of law - Whether appeal court can resolve matter

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr J R Brooksby

Respondent : Mr B G Bradley

Solicitors:

Appellant : Greenland Brooksby

Respondent : Vertannes Georgiou

Case(s) referred to in judgment(s):

Baum v Greenhalgh [2003] WASCA 62
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Jones v Dunkel (1959) 101 CLR 298
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Tran v Claydon [2003] WASCA 318
Westrac Equipment Pty Ltd v King [2004] WASCA 188

Case(s) also cited:

Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500

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Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65
Dessent v Commonwealth of Australia (1977) 51 ALJR 482
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Mifsud v Campbell (1991) 21 NSWLR 725
Pettitt v Dunkley [1971] 1 NSWLR 376
Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Wright v Shire of Albany (1993) Aust Tort Reports 81-239

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1 MALCOLM CJ: This is an appeal from a judgment of his Honour H H Jackson DCJ in the District Court on 2 December 2003 by which the respondent was awarded damages of $130,150 and costs to be taxed arising out of a head-on motor vehicle collision at Gidgegannup on 30 August 1998. In the collision, the respondent and his wife were trapped in the front seat of their motor vehicle for more than an hour until they could be freed. The vehicle caught fire and the respondent feared for himself, his wife and their children. He was taken to hospital by ambulance. He had numerous injuries. The respondent admitted liability and the trial was limited to the assessment of damages. The trial Judge found that neck and other pain suffered by the respondent was caused by the accident which rendered him unfit for manual labour. His Honour awarded damages of $55,000 for past economic loss and $50,000 for future loss of earning capacity. The principal issue raised on the appeal is whether the trial Judge supported his findings of fact and conclusions with sufficient reasons so as to identify the process of reasoning by which such findings and conclusions were reached.

Grounds of Appeal

2 In summary, the grounds of appeal are that:

1. The learned trial Judge erred in making no or no proper findings of fact to support the conclusions which he reached.

2. In awarding damages for economic loss, his Honour failed to set out any reasons or justification for the figure chosen of $55,000.

3. Further or in the alternative his Honour awarded damages for past economic loss in the sum of $55,000 having wrongly identified the respondent's earnings for the financial years 1996 to 2003.

4. As a result of his failure to properly identify the respondent's earnings, the figures awarded for past economic loss, superannuation and interest have no true basis in the evidence.

5. In awarding damages for future economic loss on the basis of:

(a) loss of overtime; and

(b) loss of offsite work (if indeed anything has been awarded)

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the trial Judge offered no or no sufficient reasons for his award and, in any event, the figure awarded was tainted with error by reason of his Honour's miscalculation of the past losses.

The respondent's employment history

3 The respondent came to Australia as a teenager with his family. After learning English and working as a cleaner, he was employed as a trades assistant by Transfield under its former name in Osborne Park in 1981. Since that time the firm has changed names, merged with other firms and been reorganised internally. The learned trial Judge commented that, in addition, various witnesses used different names from those used by others for the same sections, although the general position was found by his Honour to be fairly clear.

4 The respondent later married and had four children. His work as a trades assistant involved the cleaning and spray painting of heavy equipment. After two years, he moved to the manufacturing section as a coil shaper and was later promoted to a leading hand position and, finally, as a supervisor in about 1987. He was then no longer involved in heavy manual work, but more technical and design areas.

5 In 1991 at the age of 30 or 31, he applied for and obtained a four-year apprenticeship as an electrical fitter with Transfield. This involved two years working in the manufacturing section and two years in the winding and fitting sections. During the first three years he also studied at TAFE, becoming Apprentice of the Year. Although he is a small man and some of the winding section work is heavy manual work, he coped without difficulty. After the completion of his apprenticeship, he qualified as an electrical fitter with an "A" grade licence. He was placed in the traction and motor section, working on motors for railways in early 1995. In 1996, the respondent purchased a property at Gidgegannup where he went to live. In 1997 and 1998, prior to the accident, he worked on jobs for Transfield in Sydney, Mount Isa and Dubai for periods totalling more than three months. This work earned him additional income.

Medical and employment history after the accident

6 Following the accident, the respondent's vehicle was cut open in order to remove him from the vehicle. He was then taken by ambulance to Royal Perth Hospital. He was given pain relief and x-rays were taken. His hands and knuckles were swollen and painful. His ankles and neck

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were in pain and were x-rayed. His left ankle was broken and his leg was placed in plaster. He discharged himself the following day to attend to family matters, as both his wife and his daughter were in hospital. He was on crutches and stayed with relatives for a period, making several out-patient visits to Royal Perth Hospital. After six or seven weeks, the leg plaster was removed.

7 He consulted his general practitioner, Dr Kyi. He had pain and swelling in the left knee and an ulcer on the right foot, which required daily dressing. He received acupuncture and then a soft collar for neck pain. The left little finger was stiff and in pain and the knuckle swollen. The right index finger and knuckle were swollen and painful. He had ongoing pain in both ankles. As a consequence, he used a variety of pain-killing medications over time and received physiotherapy at Royal Perth Hospital and privately.

8 He returned to work at Transfield on 12 January 1999 after an absence of 135 days, or some 19 weeks and two days. His sick leave had run out, but he still suffered ankle, knee and neck pain. Neck pain radiated from the back of the neck down between the shoulder blades and down the left arm into the hand and fingers with intermittent numbness. His little finger was stiff and painful and so was the right index finger knuckle. He suffered constant dull headaches with severe headaches three or four times each week. He arranged to be placed on light duties in the coil manufacturing section.

9 In October 1999, as work in the coil section had lessened, the respondent asked for and was relocated to the traction and motor section. He found the work there very heavy and struggled to do it. He remained in the section for some eight months, but his ankles worsened and he was referred to Dr Sneddon whom he saw in February 2000. An MRI was arranged as a result of which Dr Sneddon suggested surgery to remove a bone fragment found "floating" inside the left ankle. This was performed in June 2000. The respondent was hospitalised overnight and sent for intensive physiotherapy on the ankle. He returned to work on 27 July 2000. Because of the lifting involved, the respondent also had neck problems.

10 As a result of Dr Kyi moving his practice to Northam, the respondent saw a Dr Beinart instead.

11 The respondent then spoke to the Manager at Transfield and was returned to the coil section where the work was much lighter and where he

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remained at the time of trial. In the meantime, on 14 September 2000 he saw Dr Galton-Fenzi. He continued with pain-killing medications. The surgery of his ankle produced no improvement.

12 At the time of trial, the respondent said he suffered mild pain in the back of the neck, between the shoulder blades, left shoulder, arm and hand, which increased with certain activities and with numbness in fingers on the left hand, constant pain in the front of both ankles and headaches, mainly triggered by neck pain, probably three times per week, depending on his activity. His evidence was that he was very irritable and short-tempered. He had suffered one very frightening nightmare, reliving the events and continued to have nightmares of feeling trapped and helpless. He became very anxious in traffic.

13 He was fitted with orthotics about 12 months before the trial because of his ankle problem. They will require replacement every 18 months to two years. He now finds sleeping difficult and suffers severe teeth grinding. He had previously been heavily involved in sport and recreational activities with a church youth group, but his injuries do not allow that. The Gidgegannup property had a cow and vegetable garden, but he has had to cease tending these because of his injuries. His wife has not been able to return to work.

14 Before the accident, he had been very positive, ambitious and happy. His marital relationship has been affected. He becomes irritable, frustrated and has reduced libido. For a period, he took anti-depressants which also helped with sleep, but they interfered with his driving the following morning. At the time of trial, he was taking about six Prodeine tablets, which is a pain-killing medication, each week.

Work history since returning to work

15 There was evidence that since returning to work in the coil section, the respondent had undertaken work for his employer in Singapore, China and Chile. The work in Chile lasted for some four months. His Spanish language skills were useful. The work was done at 3000 metres' altitude. None of these assignments, however, involved him in heavy physical work.

16 At the time of trial, his evidence was that he worked eight-hour days, five days per week, plus an occasional Saturday morning. He said he coped reasonably well, but on some days it was difficult and he was tired after each day with sore ankles. He was not keen to undertake extra

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overtime, notwithstanding the family's financial difficulties, and believed that he could not cope with a return to the traction section.

Cross-examination of the respondent

17 In cross-examination, it was put to the respondent that based upon the history recorded in April 1999 by Mr Edibam, the respondent's neck pain, stiffness and headaches developed about five weeks after the accident and the left arm pain and paresthesia in the fingers more recently. The respondent stated that he was unable to recall when the symptoms had begun, due to the time elapsed since the accident. The record made by Dr Rosenthal in April 1999 was that the respondent was not then using medications. The respondent's evidence was that the latter evidence was misleading and that he had used pain-killing medication constantly. In this respect he referred to earlier medical records.

18 The respondent agreed that it suited his employer to have him working in the coil section where he was on hourly rates and the highest paid fitter in the section. He thought, however, that he worked less overtime than others. He did not think he had passed a full medical examination before being approved to work in Chile, or that he had told Dr Kruger that his ankle problem had resolved. He was not sure whether he had mentioned other medical problems. He had medical tests for lung capacity, blood pressure and a cardiogram. He had also been tested in relation to drug and alcohol, cholesterol and glucose issues. He had previously expressed concerns to Mr Parker and, more recently, to Mr Lowcock. He had not made a major issue of the matter because of concern that it might affect his employment, although he had applied for positions of a higher nature recently as a purchasing officer. He agreed that he would also like to acquire a supervisor's position.

Evidence of respondent's wife

19 The respondent's wife gave evidence which confirmed the evidence of the respondent. She said that prior to the accident, the respondent had been strong, happy and positive and their relationship good. Since the accident, he had become more aggressive and moody. His sleep had been disturbed and he had lost libido.

Evidence of Transfield employees

20 Witnesses who were employed by Transfield described the respondent as a capable electrical fitter. The respondent's evidence was that he was given lighter work in the coils manufacturing section when he

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returned to work after the accident. At one stage when work was short in that section, the respondent was returned to the locomotive section rather than being put on leave. Evidence was given that electrical fitters employed at the company in 2001 to 2002 earned an average of $59,000 per annum, the range being from $43,000 to more than $100,000. The top six earned more than $80,000, all of them taking on-site work outside the Osborne Park premises away from home. These figures were gross and included travelling allowances. In May 2003, the top hourly rate was $19 plus per hour gross, which was what the respondent earned. Overtime and travelling allowances were additional and allocated so that all were given an opportunity to earn them.

21 A Mr Lowcock, a health and safety co-ordinator and quality manager at Transfield, was called to give evidence for the respondent and confirmed the respondent's work history. Transfield wanted the respondent to work in the wire and coil branch regardless of the accident. While off-site work was more likely to go to the generator section, he did not think that the respondent had lost opportunities to work off-site since the accident. The company was happy for him to work off-site given the recent medical report received from Dr Kruger. There was at the time of trial more opportunity for overtime work. The respondent was shown as having earned what was a virtually average figure. He was paid the top hourly rate which, at the time of trial, was $19.70 per hour gross. Variables included hourly rates, off-site work and overtime. Superannuation was paid under the compulsory legislative scheme. According to Mr Lowcock, the respondent had:

"… a strong future with the company and there's no reason for him to be concerned in that manner. With his background, he's got good qualifications and experience… He has good standing with the company."

22 The manager of Transfield's wire and coil department at Osborne Park since 1 April 2000, Mr Baldwin, who had been employed by Transfield since 1987, gave evidence for the respondent. His evidence was that the respondent was transferred to the wire and coil department in July 2000 where he has worked since. He was described as a good worker in a very busy department. The respondent had previous experience in the department and was "a very good employee". He confirmed that the respondent had worked off-site twice in Singapore and also in China and Chile. There was nothing that would prevent him being offered further site work. Overtime was readily available, usually for two hours on work days at time-and-a-half and eight hours on Saturdays, the first two hours

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at time-and-a-half, and the last six hours at double time. It was said that the respondent worked overtime, but not as much as others.

23 In April 1999, Dr Kyi referred the respondent to Mr Edibam, who arranged an x-ray of the neck. The respondent was also receiving acupuncture and physiotherapy.

Evidence of Mr Edibam

24 Mr Edibam is an orthopaedic surgeon. He prepared five reports based on consultations with the respondent. He first saw the respondent in April 1999, some seven or eight months after the accident. The symptoms he described to Mr Edibam were consistent with those he described to Dr Kyi. In particular, about five weeks after the accident, he developed soreness in the neck and headaches. More recently, he also got headaches associated with the neck symptoms and had developed pain going down his left arm with parasthesia in the ring and little finger which was intermittent. He had received physiotherapy for the cervical spine without any relief of symptoms.

25 Mr Edibam noted that, clinically, the respondent had a fully mobile cervical spine with little or no tenderness over the posterior aspect of the cervical spine. Neurological examination showed normal motor power throughout and some minor sensory change in the ulna nerve distribution of his left hand. X-rays of his cervical spine were "within normal limits and certainly show no evidence of any bony injury". His disc heights were well maintained. There were no degenerative changes, and flexion extension views showed no instability.

26 Mr Edibam recommended that in view of the parasthesia in the ulna nerve distribution, the respondent should be seen by a neurologist to see whether the respondent was getting compression of the ulna nerve or has compression of the lower cord of the brachial plexus at the thoracic outlet.

27 So far as the neck pain was concerned, Mr Edibam recommended that he should stop physiotherapy as that in itself would relieve the respondent of his symptoms.

The respondent's evidence about Mr Edibam's Report

28 Mr Edibam provided five reports in all to the appellant's solicitors. In a report dated 4 July 2003, he appears to have queried the accuracy of the history previously recorded regarding the onset of soreness in the neck when he first saw the respondent in April 1999. In his report dated 4 July 2003, he noted that the respondent:

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"… was unsure as to when his neck symptomatology occurred. He agreed that he had undergone X-rays of his cervical spine at the Royal Perth Hospital, but he was not quite sure as to whether he experienced any neck pain at that time."

29 At a subsequent time, he had given a history of noticing neck symptoms some five weeks after the accident. Mr Edibam said that the information in his report in April 1999 had been provided by the respondent. Mr Edibam also said in his 2003 report that the information in his April 1999 report had been based on what the respondent told him. He did not give any oral evidence about the statements in his July 2003 report and was not cross-examined about the statements in that report.

30 Counsel for the appellant cross-examined the respondent regarding the history as noted by Mr Edibam and asked whether he confirmed that the report was the history he gave to Mr Edibam. At the time, the respondent replied, "That's what's written in the report". He agreed that Mr Edibam had clarified the position with him when he saw him in July 2003 saying:

"… I did explain to him that obviously it's been quite a few years since – has gone by since that report and that the best thing was to go to the medical records and see when I actually complained about my neck."

31 The respondent accepted that he said to Mr Edibam that because it had been a long time since the initial report:

"… the best thing was to go back to their medical records from the hospital. That's what I did say to him, yes, to confirm that issue, that particular issue that he was questioning."

32 It follows that the respondent was saying that Mr Edibam had not correctly recorded what he had said. There was no further cross-examination on the point. It is also relevant that the respondent's unchallenged evidence was that he had not suffered any neck pain before the accident. This evidence was supported by the evidence of Dr Kyi who administered acupuncture for the neck pain reported after the accident and recorded that there was evidence of the neck and associated pain continuing. The respondent was asked in examination-in-chief what his recollection was of the injuries he noticed at the time he was admitted to Royal Perth Hospital. The relevant evidence is as follows:

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"I remember my hands being swollen and my knuckles being swollen and in pain; obvious pain on my ankles and pain on my neck, that it was sore; pain all over, you know. I was just under a lot of pain at the time.

You say you underwent x-ray at the Royal Perth Hospital?---That's correct, yes.

What treatment can you recall getting?---Well, after they took the x-rays, they actually put my left leg in plaster. They plastered it up and [I] was given obviously painkillers to numb the pain and then I was taken up to a ward.

Can you remember which parts of your body were x-rayed?---Yes, the x-rays - my ankles and they did quite a few x-rays on my neck."

33 It is apparent that the respondent did not agree that Mr Edibam had correctly recorded what the respondent had told him.

Evidence of Dr Beinart

34 Dr Beinart, a general practitioner specialising in occupational health and management of work-related injuries, first saw the respondent in March 2000, when he noted the injuries, including the blisters to the right foot which became infected. In September 2000, the respondent complained of bilaterial ankle pain and stiffness, neck pain and stiffness extending into the suboccipital region, parasthesia of the fourth and fifth fingers of the left hand, as well as dizziness and headaches. There was pain in the neck and suboccipital area, accompanied by stiffness which often radiated down into the fingers of his left hand. He was then "just coping" with his work, able to do the physical activity but paid for it afterwards.

35 The problem with his ankles persisted in October 2000 making it difficult to stand for extended periods, work in awkward positions or repetitively squat and kneel. The neck pain, headaches, dizziness and tingling in his left hand was continuing. Dr Beinart reported in October 2000 that as a result of the injuries sustained in the motor vehicle collision, particularly the injury to his left ankle, the respondent would not be capable of returning to his pre-accident occupation in an unrestricted full-time capacity. Two years later, the position was substantially the same, although he was still working full-time, performing modified duties. His ankles remained painful. The pain was worse on the left then

(Page 13)

the right ankle. The prognosis was bleak, including continuing pain in the jaw, left upper limb and grinding his teeth as well as continuing sexual dysfunction and lack of libido.

36 In his latest report dated 24 July 2003, Dr Beinart noted that the respondent continued to report significant emotional and physical symptoms and difficulties. All aspects of his life and those of his family had been affected. The physical symptoms continued unabated in terms of neck pain, stiffness, headaches, bilateral jaw pain and grinding his teeth as well as pain down the outer aspect of the left arm into the ulna of two fingers. The ankle pains persisted, being more pronounced on the right than on the left. These were aggravated by standing or placing the ankle joints under strain, particularly by heavy lifting. The pain level fluctuated and was worse on cold mornings. The diagnosis and prognosis provided by Dr Beinart were as follows:

"Diagnosis

• Soft tissue neck injury (whiplash and associated disorder, grade 3). This involves recurrent inflammation of the zygo-apophyseal joints and musculo-ligamentous structures of the neck. This results in recurrent muscle spasm to the neck muscles resulting in local areas of myotendonitis, particularly in the trapezius muscle on the left, irritation of the exiting suboccipital neurovascular bundle resulting in his complaint of headaches and jaw grinding. There is radiological evidence of cervical intervertebral disc disease as well as osteophytic encroachment of the exiting left nerve root at the C6/7 level, which may be a factor in his reported left upper limb symptoms.

• Bilateral ankle injuries, with persisting reported pain. In addition to the bony injuries, he has likely suffered chondral damage and musculo-ligamentous injury.

• Minor deformity to the left little finger and right index finger with normal function.

Prognosis

It is now approaching 5 years after the initial accident and Mr Del Pino continues to report significant persisting symptoms in his neck and left arm and ankles as a result of the injuries

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sustained in the traffic accident of 1998. Mr Del Pino reports that he is physically limited, with persisting fluctuating symptoms.

In my opinion, Mr Del Pino is left with a permanent residual disability in his neck, as well as his left and right ankles."

37 It was noted that the respondent was reliant on Prodine as an analgesic, primarily for headaches. A physical exercise programme was difficult. There was a prospect of decompressive surgery if pressure on the existing cervical nerve root became permanent. It was noted that the respondent was a "stoic who had displayed a good work ethic by remaining at work with the support of his employer". The respondent was diagnosed as unfit to work in any job that required him to be on his feet for any length of time; work above shoulder height, particularly in awkward positions; do repetitive upper limb movements, such as hammering; or undertake repetitive lifting.

Evidence of Mr Sneddon

38 Mr D G Sneddon, an orthopaedic surgeon, first saw the respondent in February 2000 concerning his ankle injuries. He removed a bone fragment from the respondent's left ankle in June 2000. The symptoms then worsened, although the fracture had healed and could now be regarded as permanent. There was an issue whether certain activity, such as returning to his previous work caused increased pain symptoms in the ankle. It would not cause damage. There was no measurable disability in the right ankle, but loss of movement in the left. Mr Sneddon described the symptoms of which the respondent complained on 5 November 2001, which were in similar terms to those recorded by Dr Beinart. It was noted that the respondent recently had a bone scan on 23 October 2001 which showed synovitis, especially on the medial aspect of his left ankle, with perhaps a degree of degenerative change in the right posterior facet of the subtalar joint.

39 There was a diagnosis of soft-tissue injury to the cervical spine, with evidence of underlying degenerative change involving the disc at the C4/5 level, and mild left C6/7 foraminal narrowing. There were also injuries sustained to his ankles. The left ankle fracture had since healed. Mr Sneddon considered that the respondent had been left with a permanent residual disability in relation to his left ankle assessed as being 10 per cent disability below the level of the knee. Mr Sneddon believed that the respondent had a continuing capacity for work and reaching normal retirement age. He would not impose any restrictions on him, but

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noted that the respondent was aware of what activities increased his symptomatology and would need to work within those limitations. He did not believe that his neck and lower limb injuries were likely to deteriorate further.

40 In December 2001, Mr Sneddon noted that some aspects of the respondent's work did seem to aggravate his symptoms. As far as his neck was concerned, the neck pain was present every day irrespective of the activities he was engaged in, apart from, perhaps hammering while he was at work. His bilateral ankle symptoms were aggravated with twisting movements. These activities exacerbated his accident-related symptoms. In June 2003, Mr Sneddon reported that there had been basically no change. So far as the neck pain was concerned, this was diagnosed as caused by degenerative arthritis of the cervical spine which was present but asymptomatic before the motor vehicle accident. Subsequently, as a result of the soft-tissue injury to the same region, it had become symptomatic. Mr Sneddon was unable to explain the left upper limb symptoms.

41 As to the right ankle, the respondent had a sprained ankle and in relation to the left ankle, he also had a sprain injury associated with an avulsion of a small piece of bone from the lower end of the left fibula. The prognosis in relation to his ankles was good. In the absence of any demonstrable pathology affecting the nerves of the left upper limb, Mr Sneddon considered that the prognosis in relation to the left arm symptoms was also good. The prognosis in relation to his cervical spine symptoms was that of the prognosis of osteoarthritis or degenerative arthritis of the spine in general, with the expectation that there would be some symptomatic deterioration with the passage of time. Mr Sneddon reiterated that he considered that the respondent would be left with a permanent residual disability in relation to his left ankle as being 10 per cent below the level of the knee. The respondent remained fit to work as he had done for several years since the motor vehicle accident and he would not impose any restrictions on him in relation to his capacity to work.

42 He noted that it was possible that the respondent's neck symptoms may deteriorate further, not so much as a result of the motor vehicle accident, but due to the presence of pre-existing and demonstrated underlying degenerative changes. He did not believe that the respondent was likely to produce such deterioration in neck function that he would be further reduced in relation to his work capacity. There were no demonstrable signs of ankle instability, so that Mr Sneddon did not

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believe that restrictions would be imposed upon the respondent's ability to stand for any length of time in the future in the workplace. His comments in relation to the left ankle were identical to those for the right. The reason for not imposing any restrictions on the respondent's work, was that:

"… his work will not cause him any physical harm or damage and therefore I would not place any restrictions upon him. However, if he were to find, for instance, that certain types of work caused him increased pain, then [the respondent] himself might self-impose restrictions in relation to his capacity to work but I, as a treating Orthopaedic Surgeon, have not imposed any restrictions on him."

Evidence of Dr Harper

43 Dr A C Harper, an occupational physician, first saw the respondent in August 2001, when the respondent was working on light duties full-time. It was noted that the respondent was coping satisfactorily although he did experience fatigue at the end of the week, but he had to transfer from electrical fitting work to lighter work due to his symptoms. The symptoms described by the respondent to Dr Harper were substantially in the same terms as previously described in these reasons. According to Dr Harper, the prognosis was for continuation in susceptibility to neck pain and ankle pain particularly on the left. There may be deterioration in neck symptoms in the long term, but this was not particularly likely. The respondent was left with a permanent mild residual disability of the cervical spine and left ankle with a slight residual disability of the right ankle. Some three years since the accident, no further improvement was occurring. Dr Harper made no specific recommendations with regard to any particular medical treatment. His advice was that the respondent should avoid aggravating circumstances. This was the position in August 2001. A further report in July 2003 indicated that the symptoms previously described continued without significant alteration. It was noted that the respondent had discontinued work in the youth group at his church. Sexual activity was being affected more than previously. Otherwise, there was no change in his daily living from the description in the initial report. Dr Harper said, however:

"… I would advise against endeavouring to work as an electrical fitter. I would advise against a physically demanding job and specifically I would recommend adhering to the following restrictions. Restrictions are to avoid heavy lifting,

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prolonged standing, repetitive physical work, the prolonged head down position, repetitive vibration such as hammering and repetitive pivoting on the ankles.

You make reference to Mr Del Pino currently working in the manufacturing section doing lighter work than he was previously doing as an electrical fitter. I feel this has been an appropriate change. However symptoms continue to be aggravated through his physical work and prolonged standing. As he is only 42 and is interested in working until the age of 65, I feel it would be advisable for him to pursue work as a supervisor or manager if the opportunity arises.

Future work capacity will continue to be compromised. While he is capable of continuing in his present position in the manufacturing section he is only capable of doing this with aggravation of symptoms. ... I do not anticipate his injuries causing early retirement.

I feel deterioration in symptoms is unlikely. I feel it is improbable that his work capacity will deteriorate. However at this stage I do not expect improvement in his work tolerance.

I do not feel that physical work will cause further injury but working as an electrical fitter would probably produce regular aggravation of symptoms which could subsequently force him to pursue alternative employment."

Evidence of Mr Crockett

44 Mr J E Crockett, a consultant orthopaedic surgeon, first saw the respondent in January 2002. The symptoms he described in his report dated 22 January 2002 were consistent with the symptoms described in other reports, including, in particular, the problems with his neck and associated pain. It was noted, however, that in January 2002, the respondent reported that there was no instability of the right ankle and the respondent was fine on rough ground, going up and down steps and stairs, or squatting, but swimming aggravated it. Both ankles throbbed when he went to bed in the evening and put his feet up. The left was worse than the right. While the left ankle was not a problem at night, it was stiff and uncomfortable first thing in the morning, so that he hobbled for the first few steps as he did after he had been sitting for any length of time, such as in a car. He had problems, particularly with vacuuming, which irritated his back and upper back. He had no problems hanging clothes on the

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washing line. Neck pain was easily triggered by driving. Sometimes discomfort started after half an hour or an hour. This progressed to a headache and discomfort down his arms. He sometimes had discomfort in the left ankle using the clutch, but this was not a big problem.

45 The respondent reported that he was more tense than he used to be and had a problem with grinding his teeth. He had been fitted with a dental splint for night-time. He reported that his left ankle was deteriorating.

46 Mr Crockett's report dated 22 January 2002 noted that an MRI of the respondent showed that there was a 5 x 10 mm bone fragment at the anterior aspect of the lower end of the fibular in the left ankle which was probably related to injury caused by the accident, resulting from the avulsion injury of the fibular end of the anterior talo-fibular ligament. X-rays of the right ankle showed no abnormality.

47 In particular, x-rays of the respondent's cervical spine on 29 April 1999 showed spinal degenerative changes at C5-6, C6-7 disc spaces and posteriorly at C5-6. MRI of the cervical spine on 15 March 2000 showed a focal disc protrusion at C4-5. There was a mild C6-7 foraminal narrowing which may have been compromising the C7 root.

48 In Mr Crockett's opinion, the respondent, as a direct result of the accident had sustained:

"A sprain of the C4-5-6-7 posterior facetal joints, which has initiated discomfort in pre-existing minor degenerative change in these joints, particularly the lower ones, which is giving him some radiating symptoms into his C7 distribution in his arm.

He had no pre-existing problems in the area of his neck, but the degenerative change would have increased his liability to such an injury and will slow and render less than complete, his recovery.

I believe the continuing problem is due to the accident and is consistent with his explanation of events."

49 In his examination-in-chief, Mr Crockett was asked whether, if the respondent had no significant history of neck pain before the accident and five or six weeks after the accident, was there probably a causal link. His answer was, "Yes , it is probable". He also said that the symptoms would come on some time afterwards, and that it:

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"… may be a matter of even weeks because that joint has to be initiated for a reasonable length of time before the nerve starts to give symptoms."

50 Mr Crockett's conclusion was that the respondent was left with a permanent loss of efficient function of his cervical spine of 15 per cent; of his left leg below the knee of 15 per cent, due to his problems with his left ankle; and of his right leg below the knee of 5 per cent due to the problems with his right ankle.

51 Mr Crockett provided a further report dated 15 July 2003. The respondent reported no change or improvement in his neck. He was having headaches two or three times a week. He felt pain coming down the outer left side of his arm from the shoulder. He still had numbness of his ulnar fingers. While his neck movements were not really limited, he did have some grating noises when he turned his head from side to side. He also had discomfort when he lifted up his left arm and turned his head.

52 In particular, his left ankle was the same as previously reported. It was painful anteriorly and laterally. It was easily irritated, even by a sudden twist with the weight on that foot. It was sometimes swollen in the evening after work, but he did not limp. He avoided running because it irritated the ankle and caused pain. He could run, but even going for a long walk could irritate his ankle. While the right ankle caused some discomfort, it was not as bad as the left ankle. X-rays of the ankles showed some calcification, but no other abnormality. Mr Crockett considered that the accident involved considerable force and the ankles had been "trapped in rotation", which suggested that the injuries were more severe than appeared on the x-ray. He went on to say that:

"It was not uncommon for joints to sublux, or dislocate, and re-seat themselves spontaneously, leaving very little in the way of radiological findings. The diagnosis is often easier to be made retrospectively, mainly because the recovery period is more drawn out than one would expect from the radiological changes. This is a not uncommon trauma problem …

I believe this is the reason Mr Del Pino is having more continuing problems than one would expect by simply looking at the x-rays.

I believe my assessment of his disabilities in all three areas stand."

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53 Mr Crockett reported that from a clinical point of view, the respondent's neck and ankles had improved since early in 2002. Mr Crockett described the injuries and the respondent's condition, when he examined him in 2003, in terms similar to other reports. He said in evidence that the accident may have caused neck pain, even if the respondent had not noticed it for five or six weeks after the accident. In turn, the neck pain might have been associated with the symptoms radiating into the left arm. The trauma may also have rendered symptomatic the pre-existing degenerative change at C7 in the spine.

54 In cross-examination, Mr Crockett agreed that the onset of pain five or six weeks after the accident was not consistent with his original diagnosis of strain of the C5-6 and C7 facet joints. His opinion, however, contrary to the views of Dr Rosenthal and Mr Edibam was that the radiological finding of left foraminal narrowing at C6-7 was significant, and might explain the left arm symptoms. He disagreed with Dr Rosenthal and Mr Edibam also in respect of the respondent's left ankle symptoms, and with them and Mr Sneddon as to right ankle disability.

55 Mr Crockett said that the "C6-7 foraminal narrowing is the most important thing". He considered that this could be consistent with a normal EMG because there can be initiatives of the nerve, but no neurological signs on conduction studies. He was then referred to Dr Rosenthal's report dated 15 February 2002 in which it was said that:

"With reference to the matter of permanent disability in the cervical spine I do not consider this exceeds 10%. You will be aware he does not have any clinical or electrophysiological evidence of cervical radiculopathy. The MR scan shows a very slight disc bulge at C4/5. This can be a frequent finding in asymptomatic individuals. He does have a mild degree of left C6/7 foraminal narrowing but this is degenerative and pre-existing. In any event, his upper limb complaints are contralateral. That is to say, there is no clinical or radiological evidence of him having compressive cervical pathology of current clinical relevance.

It is on this basis that I could not support a disability quotient of 15% in the cervical spine."

56 When this was put to Mr Crockett, he disagreed partly because of the opinion of Dr Rosenthal that the respondent's upper limb symptoms were contralateral. Mr Crockett pointed out that the respondent had C6-7

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posterior facet joint and foraminal narrowing as well, as left root discomfort which was ipsilateral. He agreed that the respondent's neck function was satisfactory with full range of movement. He did, however, disagree with Mr Edibam's opinion that:

"No pathology could be demonstrated in [the respondent's] cervical spine apart from a minor central disc protrusion at C4-5 which I consider was an incidental finding."

57 Asked whether he did not think there was anything of significance at C7, Mr Crockett replied that:

"[Mr Edibam] didn't, yet it's in the MRI report and I think that it's the most significant …"

58 Counsel for the respondent then interrupted, as appears from the following passage:

"Well, the question is whether or not on a clinical finding it's relevant – on the clinical assessment?---Symptomatically; symptomatically, yes. You can't pick it up on clinical examination.

And if [sic it] came on in March or April of 1999, 8 months after the accident, you couldn't relate it to the accident?---8 months after?

Yes?---No. No.

No, you couldn't?---Not 8 months after, no."

59 Shortly after that exchange, the cross-examination was completed and re-examination commenced when counsel for the appellant sought leave to re-open the cross-examination because there was one further question he had failed to ask. There being no objection, leave was granted.

60 Mr Crockett was referred to the following passage in his report dated 22 January 2002:

"He used to, in his full job as an electrical fitter, travel quite a lot but he found he could not cope with this. In his job as a coil manufacturer he is not involved in travelling at all. This has helped to reduce his income significantly."

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61 The cross-examination then proceeded as follows:

"You say he found he could not cope with this. What are we talking about, at the time prior to the accident or are you talking about post-accident?---Post-accident.

Well, you saw him on 17 January, didn't you, 2002?---Yes.

Would it surprise you to know that on that day he actually had a medical carried out by Prime Occupational Health to assess his fitness for travelling for a 4-month trip to Chile?---Well, it wouldn't surprise me that he had it carried out.

It would surprise you, given the history he gave you, would it?---That he was fit to travel, that he – was he certified fit to travel?

He was fit to travel to Chile for a 4-month stint and the medical which he had was on the same day as he saw you?---Yes. No, I find that very surprising."

62 In re-examination, Mr Crockett was taken back to the MRI scan of 15 March 2000 and his finding that the mild left C6-7 foraminal narrowing was significant in this case and that this could explain the left arm symptoms. It was explained by Mr Crockett that in the present case there was a lesion on the left side which was symptomatic on the right side. The re-examination then continued as follows:

"Now, an accident, which the foramenal narrowing you have explained is a degenerative sign - - -?---Yes.

- - - an accident which stirs it up, if there was a delay of 5 or 6 weeks before the onset of neck pain, is that out of the ordinary?---Not for degenerative change. It is long, but on the other hand the pain, the discomfort starts off in a relatively minor way and if there are other detractions such as ankle injuries or other family injuries, then sometimes that discomfort is ignored. Gradually, as time goes on, the irritation becomes more, the pain becomes more. There is a delay in the onset of symptoms from irritation of degenerative change. A simple sprain discomfort is usually immediate, but in the onset – the initiation of discomfort in degenerative change, there is usually a delay of it; quite often at least 10 days.

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Then the development of arm pain, could that come yet later?---Weeks - - -

Weeks later after the neck pain?---- - - later. Yes, I would have thought not months but weeks."

63 The reference to "sprain discomfort" was a reference to pain in a facet joint, which explained why pain might not be experienced until five or six weeks after the neck pain had been suffered, although both were consequences of the one accident.

64 Mr Edibam was of the opinion that Mr Crockett's diagnosis was inconsistent with a five-week delay in the onset of symptoms because pain is felt immediately following a joint being sprained. Mr Edibam, however, was unable to offer any explanation for the onset of the relevant symptoms. The trial Judge concluded that Mr Edibam's evidence was such that he was unable to identify any physical explanation for the symptoms. Mr Edibam was not aware of the MRI scan in March 2000 or the report prepared by Dr Ives. The latter referred to "minor left C6-7 foraminal narrowing which may be compromising the left C7 root". His view remained unaffected by those facts.

65 Mr Crockett's evidence, however, was to the effect that the left arm symptoms were the result of the condition of the respondent's neck as a result of the strain suffered in the accident and consistent with the MRI scan which identified degenerative change in the spine at C7.

66 His opinion was that, given that there was no significant history of neck pain before the accident and five or six weeks later the respondent experienced neck pain, there was probably a causal link with the accident. He said that the left arm symptoms would tend to come on probably following the onset of neck pain, which could be a matter of weeks "because that joint has to be irritated for a reasonable length of time before the nerve starts to give symptoms".

67 When cross-examined, Mr Crockett accepted that his diagnosis that there was a strain of the C5-6-7 facet joints was inconsistent with the onset of pain some five or six weeks after the accident. His opinion was, however, that the nerve conduction studies were not determinative of the cause of the left arm pain. He accepted that there could not be a gap of five weeks where there was a significant injury to the facet joints, particularly the ligaments on the capsula. He was also aware that the respondent had an EMG study of the nerves from the neck to the left arm which found they were normal. It was put to Mr Crockett that the only

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significant finding on the MRI was a mild disk bulge at C4-5 which was not consistent with any left arm symptoms. Mr Crockett agreed with that, but pointed out that that was not the only finding on the MRI. His opinion was that the C6-7 foraminal narrowing was the most important thing. It was then put to him that that was not consistent with a normal EMG. Mr Crockett's response was:

"It can be, yes. There can be irritation of the nerve but no neurological signs on conduction studies."

68 The topic was the subject of further evidence by Mr Crockett in re-examination by counsel for the respondent.

69 Mr Crockett disagreed with the evidence of Mr Edibam that no pathology could be demonstrated in the respondent's cervical spine, apart from a minor central disk protrusion at C4-5 which he considered an incidental finding. He noted that Mr Edibam did not think there was anything of any significance at C7, whereas Mr Crockett thought it was "most significant". In re-examination, Mr Crockett confirmed that he thought the MRI scan finding of a mild left C6-7 foraminal narrowing to be significant in this case. What was meant was that the pathology on the MRI was noted on the left side. That meant that there was a left-sided pathology and left-sided symptoms which were consistent with the pathology being left-sided. Significantly, Mr Crockett said that the foraminal narrowing he explained was a degenerative sign if an accident stirred it up, a delay of five or six weeks before the onset of neck pain would not be out of the ordinary for degenerative change.

70 Mr Crockett went on to say that the development of arm pain could come yet later, namely, in a matter of weeks but not months.

71 In my opinion, the evidence of Mr Crockett was compelling and the learned trial Judge was entitled to prefer the evidence of Mr Crockett on this issue.

Adequacy of the reasons

72 Ground 1 of the grounds of appeal contended that the learned trial Judge erred in making no or no proper findings of fact to support the conclusions which he reached. That ground was supported by the following particulars:

"(a) in finding that the respondent … 'has lost capacity for heavy manual labour' the trial Judge gives no reason for

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his findings nor any indication of what evidence he accepts or what evidence he rejects in reaching his conclusion;

(b) in finding that all the respondent's disabilities were accident caused the learned trial Judge gives no reasons for his findings nor an indication of what evidence he accepts and what evidence he has rejected;

(c) the only medical evidence in which a history of the onset of neck pain had been taken suggested it came on many weeks after the motor vehicle accident;

(d) there was evidence that he worked in the traction section doing heavy work for many months subsequent to his accident when work in 1999 and 2000 was slow."

73 The trial Judge found that the neck and associated pain was caused by the accident and that it prevented the respondent from carrying out heavy manual labour. The damages for past economic loss were assessed in the sum of $55,000 and the amount for future loss of earning capacity resulted in a reward of a further $50,000. It was contended by the appellant that these conclusions were not supported by proper findings of fact to support the conclusions reached. In particular, it was contended that in finding that the respondent "has lost capacity for heavy manual labour", the trial Judge gave no reason for his findings, nor any indication or what evidence he accepted or what evidence he rejected in reaching that conclusion. It was also contended that in finding that all the respondent's disabilities were accident caused, the learned Judge gave no reasons for this finding, nor any indication of what evidence he accepted and what evidence he rejected. It was also contended that the only medical evidence in which a history of the onset of neck pain had been taken, suggested it came on many weeks after the motor vehicle accident, and that there was evidence that the respondent worked in the traction section doing heavy work for many months subsequent to his accident, when work in 1999 and 2000 was slow. Further, it was contended that in awarding damages for economic loss, the learned Judge awarded $55,000 for past economic loss and $50,000 for loss of earning capacity without stating any reasons and findings of relevant facts.

74 In Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 Steytler, Templeman and Simmonds JJ said at [26] – [29] that:

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"Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment … The requirement also furthers judicial accountability …

Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.

Reasons need not be lengthy and elaborate: Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1 at 5; Beale, at 443; nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial Judge should set out findings sufficient to explain why: Beale, at 443. Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side', the Judge 'must enter into the issues canvassed before him and explain why he or she prefers one case over the other': Flannery, at 382.

Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice: Beale, at 444. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Beale, at 444."

75 The reasons for judgment of the learned trial Judge in this case occupy some 76 pages of typescript of which 65 pages comprise a record of the evidence. Large portions of the medical reports have been copied

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into the reasons. Less than two pages deal with the findings and conclusions. There is, however, no analysis of the issues, no identification of the areas where there is conflicting evidence or any attempt to analyse the evidence and explain the process of reasoning which led to the conclusion that the accident caused or contributed to the neck and associated pain of which the respondent complained.

76 With all due respect, the reasons of the trial Judge so far failed to comply with the judicial duty to provide reasons for decision as to constitute an error of law. Regrettably, this is the fourth recent case in which there has been a breach of the duty of a trial Judge to provide adequate reasons for decision following Tran v Claydon [2003] WASCA 318, Mount Lawley Pty Ltd v Western Australian Planning Commission (supra) and Westrac Equipment Pty Ltd v King [2004] WASCA 188. In each of those cases, the failure by the Judge to provide adequate reasons for the decision resulted in the decisions being set aside and the cases remitted for rehearing. Against this background, it was made clear by both parties in this case, that they wished to avoid the significant time, money, personal inconvenience and anxiety associated with a rehearing.

The respondent's evidence

77 The respondent's evidence that he was not suffering any neck or associated pain before the accident was uncontradicted. It is significant that Dr Kyi gave him acupuncture for his neck pain shortly after the accident and the fact was that his neck and associated pain was continuing. The radiological evidence showed degenerative change involving the disk at C4-5 and mild C6-7 foraminal narrowing. Dr Beinart considered that the neck and associated symptoms resulted from accident-caused whiplash and accident-precipitated onset of symptoms from an existing degenerative condition. Mr Sneddon considered that the respondent had suffered a "soft-tissue injury to the cervical spine, with evidence of underlying degenerative change involving the disk at C4-5 level and mild left C6-7 foraminal narrowing".

78 While Dr Rosenthal initially diagnosed a cervical strain injury, he ultimately concluded that the neck and associated pain was as a result of litigation-related stress. In the end, however, the issue between the parties was joined on the evidence of Mr Crockett and Mr Edibam which I have described.

79 In this context, I had the advantage of reading in draft the reasons of McLure J. I agree with her Honour that the only reasonable inference available on the evidence is that the neck and associated pain was caused

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by the accident. I also agree with her Honour that the same conclusion can be reached on the basis of the acceptance of the respondent's evidence regarding the time of the onset of symptoms. As her Honour has pointed out, there is no dispute that, if the respondent suffered a soft-tissue injury, it would manifest itself at or around the time of the accident. I agree that the weight of the evidence strongly supports a finding that the neck symptoms occurred shortly after the accident.

80 The history given by the respondent to other medical practitioners called to give evidence was generally consistent with his evidence at the trial. In this context, I agree with McLure J that the history, recorded by Dr Rosenthal in his report dated 28 April 1999 in which he described the reported accident-caused injury as including a "painful stiff neck" was of particular significance. As against this, as McLure J has pointed out, Mr Edibam's reliability in recording the history given by the respondent was cast into doubt when he mistakenly noted that the respondent's vehicle was struck in the rear.

81 The respondent gave evidence that the relevant statements in Mr Edibam's report did not accurately record what the respondent had said. I agree that this was not a case in which the respondent might have reasonably been expected to call Dr Kyi. He was not a relevant expert and the only purpose to be served by calling him would be to give evidence of a prior consistent statement by the respondent, which evidence would be inadmissible.

82 In my opinion, it was open on the evidence for the trial Judge to accept the medical opinion of Mr Crockett that the delay in the onset of, and gradual increase in the neck pain, or delay in recognition of the neck pain symptoms was consistent with the respondent's existing degenerative changes becoming symptomatic in the manner previously described.

Capacity of manual labour

83 I agree with McLure J that the finding that the respondent had lost the capacity for heavy manual labour necessarily followed from the acceptance by the trial Judge of the respondent as an honest witness and the finding that the neck injury and associated pain were accident caused.

Past and future economic loss

84 I agree with McLure J, for the reasons stated by her Honour, that it has not been demonstrated that the total amount awarded for past and

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future loss of earning capacity was outside the range of a sound discretionary assessment.

Conclusion

85 I agree, for the reasons I have stated, together with the reasons of McLure J, that notwithstanding the deficiencies in the reasons of the trial Judge, the findings of fact were open to the learned Judge on the evidence before him and no error of fact or assessment of damages has been demonstrated. For these reasons the appeal should be dismissed.

86 MCLURE J: The appellant appeals from an assessment of damages for personal injuries suffered by the respondent in a motor vehicle accident on 30 August 1998. The learned trial Judge was H H Jackson DCJ. The appellant's primary complaint is that the trial Judge erred in law in failing to:

(a) make any, or any proper, findings of fact to support his conclusions; and

(b) provide any, or any sufficient, reasons for his findings and conclusions.

87 The respondent was the driver of a vehicle involved in a head-on collision with a truck at Gidgegannup. The respondent's wife and four children were also in the vehicle at the time. The respondent and his wife were trapped for an hour or more before they were freed. The vehicle caught fire and the respondent feared for himself, his wife and their children.

88 The respondent was taken by ambulance to Royal Perth Hospital. He suffered, inter alia, a fractured ankle. His leg was placed in plaster. The day after admission, the respondent discharged himself from the hospital in order to be with one of his children who was being transferred from Princess Margaret Hospital to Shenton Park Rehabilitation Hospital. The respondent made several outpatient visits to Royal Perth Hospital and after six or seven weeks the plaster was removed. After discharge he consulted his general practitioner, Dr Kyi, until Dr Kyi moved his practice to Northam.

89 The respondent is a qualified electrical fitter and at the time of the accident was working for Transfield. He returned to work at Transfield on 12 January 1999. He did so because his sick leave had run out and notwithstanding that he was still suffering ankle, knee and neck pain. The

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neck pain radiated from the back of the neck down between the shoulder and down the left arm into his hands and fingers. He also suffered constant dull headache with severe headaches three or four times weekly.

90 The questions in issue at trial included whether the neck and associated pain was accident caused and, if so, whether the respondent was unfit for heavy manual work. Each of the parties relied on expert medical evidence. The respondent called, inter alia, Mr J E Crockett (an orthopaedics and trauma specialist), Dr M A Beinart (general practitioner) and Mr G Sneddon (orthopaedic surgeon). The appellant called, inter alia, Mr R C Edibam (orthopaedic surgeon) and Dr G Rosenthal (physician in rehabilitation medicine).

91 The trial Judge concluded that the neck and associated pain was accident caused and that it prevented him from carrying out heavy manual labour. The respondent was awarded damages of $55,000 for past economic loss and $50,000 for future loss of earning capacity. These are the conclusions the appellant contends are not supported by sufficient findings and reasons.

92 This Court has recently had to consider the nature, extent and rationale of the judicial duty to provide reasons for decision. Two cases involved a breach of the duty by the trial Judge: Tran v Claydon [2003] WASCA 318 and Westrac Equipment Pty Ltd v King [2004] WASCA 188. In both cases, the breach resulted in the decisions being set aside and the matters remitted to the District Court for rehearing. Both parties in this case are anxious to avoid the very significant time, money and personal costs associated with a rehearing.

93 The relevant legal principles are conveniently summarised in the judgment of the Court in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 at [26] - [29] as follows:

"… Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment … The requirement also furthers judicial accountability … .

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Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.

94 In order to determine the matters in issue in the appeal it is necessary to identify the live factual issues at the trial which was conducted in late July 2003.

The Cause of the Neck and Associated Pain

95 The respondent's evidence was that he first noticed his neck problems at Royal Perth Hospital following his admission after the accident. His evidence-in-chief was as follows:

"What is your recollection of your injuries you were noticing at the time you were admitted to the Royal Perth Hospital?---I remember my hands being swollen and my knuckles being swollen and in pain; obvious pain on my ankles and pain on my

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neck, that it was sore; pain all over, you know. I was just under a lot of pain at the time."

96 He returned to that matter later. He was asked what were the problems he was noticing four or five weeks after the accident and he responded:

"Well, even before that I was noticing neck pain. I had neck pain and Dr Kyi was treating that as well with acupuncture at the time. He also later on told me to wear a soft collar."

97 The appellant relied on statements allegedly made by the respondent to Mr Edibam. Dr Kyi referred the respondent to Mr Edibam in April 1999. Mr Edibam reported to Dr Kyi in a letter dated 29 April 1999. In the opening paragraph of the letter Mr Edibam notes the respondent informed him that he was the driver of a car which was hit from the rear by a semi-trailer. It is common cause that the respondent was involved in a head-on collision. The letter also records:

"Approximately five weeks after the accident he developed soreness in his neck associated with stiffness and he told me that he also gets headaches associated with the neck symptoms and recently he has developed pain going down his left arm with paraesthesia in the ring and little fingers which is intermittent."

98 Mr Edibam subsequently provided four further reports in writing, all of which were to the appellant's solicitors. In a letter dated 4 July 2003, the doctor states that he questioned the respondent concerning the accuracy of the history he had previously recorded. The letter states:

"On re-questioning, Mr Del Pino was unsure as to when his neck symptomatology occurred. He agreed that he had undergone X-rays of his cervical spine at the Royal Perth Hospital, but he was not quite sure as to whether he experienced any neck pain at that time. …

At this time I could not obtain a definite statement from Mr Del Pino as to when his neck symptoms came on. He remains unsure as to whether he had noticed any neck symptomatology initially and he stated that in view of the time that has elapsed he could not confirm whether he had noticed any neck symptoms at the time or whether he had developed

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symptoms later on as he had given me a history of noticing neck symptoms five weeks after the accident."

99 Mr Edibam said in evidence at trial that the information in his April 1999 letter had been provided by the respondent. He was not asked, and did not give evidence, about the statements in his July 2003 letter.

100 The respondent was cross-examined on both matters. He confirmed he went to see Mr Edibam in late April 1999 and was referred to the history recorded by Mr Edibam as follows:

"I just quote what Mr Edibam says, Mr Del Pino:

'Approximately 5 weeks after the accident he developed soreness in his neck associated with stiffness and he told me that he also gets headaches associated with the neck symptoms and recently -'

and we're talking of April 1999 -

'he has developed pain going down his left arm with paraesthesia in the ring and little fingers which is intermittent.'

Have you see [

sic

] that report?---Yes, I have. Yes.

And do you confirm that was the history you gave Mr Edibam at that time?--- That's what's written in the report.

And I think Mr Edibam clarified it with you when you recently saw him on 4 July?---Yes, and I did explain to him that obviously it's been quite a few years since - has gone by since that report and that the best thing was to go to the medical records and see when I actually complain about my neck.

'In view of the time that has elapsed he couldn't confirm whether he had noticed any neck symptoms at the time or whether he had developed symptoms later on, as he had given me a history of noticing neck symptoms 5 weeks after the accident.'

Correct?---Could you read that again for me please, sir? I didn't quite get it.

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Well, he merely confirms that you weren't sure when your neck symptoms had come on. I will just read it again, if you like:

'He couldn't confirm whether he had noticed any neck symptoms at the time or whether he had developed symptoms later on'?

---What I did say to him was that because it has been a long time since that initial report, that the best thing was to go back to their medical records from the hospital. That's what I did say to him, yes, to confirm that issue, that particular issue that he was questioning.

But you would accept that if Mr Edibam made those notes, that's what you would have told him on 29 April 1999?---That's what he wrote, not exactly what I said. That's what he has recorded in his report, yes."

101 Thus, the respondent did not agree that Mr Edibam had correctly recorded what the respondent had said. Further, this is the full extent of the cross-examination on that issue.

102 The respondent's unchallenged evidence was he was not suffering any neck or associated pain before the accident; Dr Kyi gave him acupuncture for his neck pain; and his neck and associated pain were continuing.

103 The timing of the onset of the symptoms is relevant to the identification of the medical explanation of the cause of the symptoms. Mr Edibam had ordered x-rays of the respondent's cervical spine in April 1999 and there was an MRI of his cervical spine dated 15 March 2000. The radiological evidence disclosed degenerative change involving the disc at the C4-5 and mild C6-7 foraminal narrowing.

104 In Dr Beinart's opinion the neck and associated symptoms resulted from accident caused whiplash and accident-precipitated onset of symptoms from an existing degenerative condition. Mr Sneddon's diagnosis was that the respondent had suffered a "soft tissue injury to the cervical spine, with evidence of underlying degenerative change involving the disc at C4/5 level, and mild left C6/7 foraminal narrowing". Dr Rosenthal's initial diagnosis was of a cervical strain injury. His final opinion was that the neck and associated pain was as a result of litigation-related stress. However, both parties were content to focus their submissions on the evidence of Mr Crockett and Mr Edibam.

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105 Mr Crockett provided written reports dated 22 January 2002, 25 February 2002 and 15 July 2003. In his first report Mr Crockett records the respondent's symptoms of left-arm pain with associated paraesthesia in some fingers and the headaches as related to the neck pain; says the April 1999 x-rays showed some degenerative changes at the C5-6, C6-7 disc spaces and posteriorly at C5-6; the MRI showed a focal disc protrusion at C4-5 and mild C6-7 foraminal narrowing, which may be compromising the C7 root; and notes that nerve conduction studies carried out by Dr Ross Goodheart (neurologist) showed no abnormality in the left arm. Mr Crockett's opinion was that as a direct result of the accident the respondent sustained:

He had no pre-existing problems in the area of his neck, but the degenerative change would have increased his liability to such and [sic] injury and will slow and render less than complete, his recovery.

I believe the continuing problem is due to the accident and is consistent with his explanation of events."

106 In his report of 15 July 2003 Mr Crockett recorded that the respondent had no change or improvement in his neck and associated symptoms and confirmed his opinion that the respondent sustained soft tissue injuries to the posterior facetal joints which initiated discomfort in the pre-existing degenerative changes with some minor radiating symptoms into his C7 distribution secondary to irritation of the relevant posterior facetal joints.

107 Mr Edibam stated in his reports and confirmed in his evidence at trial that Mr Crockett's diagnosis is inconsistent with a five-week delay in the onset of symptoms because if a joint is sprained, pain is immediately felt. His assessment was as follows:

"Although Mr Del Pino suffers from significant symptomatology in his neck associated with headaches, as well as aching which spreads into his upper thoracic spine and into his left upper limb, there is no evidence, either on clinical examination or as a result of the exhaustive investigations

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which have been undertaken, of any significant abnormality or [

sic

] his cervical spine which could account for his symptoms."

108 The thrust of Mr Edibam's evidence is that he is unable to identify any physical explanation for the symptoms. It falls short of an opinion that the accident had no connection with the symptoms. It is clear from Mr Crockett's oral evidence at trial that he attributes the left arm symptoms to C7 root irritation resulting from constrained positions of the neck. He regarded that diagnosis as consistent with the MRI showing degenerative change to the C7 joint.

109 He was also asked in examination-in-chief about the cause of the neck problem:

"… if he had no neck pain before the accident, no significant history of neck pain before this accident - - -?---Yes.

- - - and 5 or 6 weeks later he is noticing neck pain, is there probably a causal link?---With the accident?

Yes?---Yes, it is probable.

The left arm symptoms that he reports, would they necessarily have their onset with the accident or associated with the development of neck pain?---They would tend to come on probably following the onset of the neck pain. It may be some time; may be a matter of even weeks because that joint has to be irritated for a reasonable length of time before the nerve starts to give symptoms."

110 In cross-examination, Mr Crockett agreed that his diagnosis of a strain of the C5-6-7 facet joints was inconsistent with pain coming on five or six weeks after the accident. However, he did not regard the nerve conduction studies as determinative of the cause of the left arm pain. It is appropriate to set out the relevant part of the cross-examination in full:

BROOKSBY, MR:

Your diagnosis in relation to the neck, Mr Crockett, was of a strain of the C5-6 and 7 facet joints, wasn't it, if I can find your report?---Yes, when I saw him initially. Page 17, page number 6 of my report of 22 January 02.

Yes. That's inconsistent with pain coming on 5 or 6 weeks post-accident, isn't it?---Yes.

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I just quote from Mr Edibam's report where he suggests that, and I understand you to agree with - you've said you agree with it, but I quote:

'There simply cannot be a gap of 5 weeks where there is a significant injury to the facet joints, particularly the ligaments on the capsular.

So you agree with that proposition?---Yes.

Are you aware that Mr Del Pino has had an EMG study of the nerves from the neck to the left arm?---Yes.

And they were normal?---Yes.

You're aware that the - well, let me put it this way: the opinion that I understand to be the case is that the only significant finding on the MRI is a mild disc bulge at C4-5 which is not consistent with any left arm symptoms?---No, but that's not the only finding on the MRI.

You think there's - - -?---I believe that that C6-7 foramenal narrowing is the most important thing - - -

That's not consistent with a normal EMG?---It can be, yes. There can be irritation of the nerve but no neurological signs on conduction studies."

111 These matters were further explored in re-examination. Mr Crockett was asked a number of questions concerning the left arm leading to the following exchange:

"Now, an accident, which the foramenal narrowing you have explained is a degenerative sign - - -?---Yes.

- - - an accident which stirs it up, if there was a delay of 5 or 6 weeks before the onset of neck pain, is that out of the ordinary?---Not for degenerative change. It is long, but on the other hand the pain, the discomfort starts off in a relatively minor way and if there are other detractions [sic] such as ankle injuries or other family injuries, then sometimes that discomfort is ignored. Gradually, as time goes on, the irritation becomes more, the pain becomes more. There is a delay in the onset of symptoms from irritation of degenerative change. A simple sprain discomfort is usually immediate, but in the onset - the

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initiation of discomfort in degenerative change, there is usually a delay of it; quite often at least 10 days.

Then the development of arm pain, could that come yet later?---Weeks - - -

Weeks later after the neck pain?--- - - - later. Yes, I would have thought not months but weeks."

112 Mr Crockett's evidence in re-examination is unambiguous. It is that there can be delayed onset, or build up, of accident related symptoms associated with degenerative change. Further, it emerged in the course of cross-examination of Mr Edibam that he had not seen the March 2000 MRI scan or the accompanying report of Dr Ives which referred to "minor left C6-7 foraminal narrowing which may be compromising the left C7 root". However, the MRI findings did not cause him to alter his previously formed opinion.

113 That is the evidence relevant to this issue. I go now to the trial Judge's reasons. They exceed 70 pages. All but five pages are devoted to the evidence. In the case of the medical evidence, large portions of the reports are reproduced verbatim. One and a half pages is devoted to the respective submissions of the parties. Less than two pages are devoted to the findings and conclusions. All of the trial Judge's findings leading to his damages assessment are contained in one paragraph in the following terms:

"The [respondent] is an honest and hardworking man whose ongoing problems are limited despite the horrific immediate consequences of the collision and his significant injuries therefrom. He has little ankle disability but, because of neck and associated pain, has lost capacity for heavy manual labour. I am satisfied these are genuine and accident caused. He is, however, genuinely concerned and, to a degree, depressed as to his future, perhaps unnecessarily. I did not, however, find him to be obviously distressed or depressed at trial."

114 The trial Judge did not identify and resolve the relevant conflicts in the evidence or explain how and why he reached the conclusion that the accident caused or contributed to the neck and associated pain. That is what the duty required in the circumstances of this case. It is clear the trial Judge's reasons fall so far short of what is required as to constitute an error of law. The remaining question is whether this Court is entitled to

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resolve the matter; it can do so if only one conclusion is reasonably open on the available evidence.

115 In my view, the only reasonable inference available on the evidence is that the neck and associated pain was accident caused. There are a number of routes to that conclusion. The first depends on the legal principles relating to causation. The starting point is the trial Judge's unchallenged finding that the respondent was an honest and hardworking man. Secondly, there is the respondent's unchallenged evidence that he did not suffer any neck or associated pain before the accident but has done so following the accident. Only the time of onset is in dispute. Thirdly, on any view the accident was serious and substantial and the nature of the symptoms are within the area of foreseeable risk. An x-ray of his cervical spine was performed after his admission to Royal Perth Hospital. Having regard to these matters, Mr Crockett's general conclusion that the accident was probably the cause of the symptoms even if they manifested themselves five or six weeks after the accident is in accordance with the law: Bennett v Minister for Community Welfare (1992) 176 CLR 408 at 420 - 421 per Gaudron J.

116 The second route depends on acceptance of the respondent's evidence as to the time of onset of the symptoms. There is no dispute that if the respondent suffered a soft tissue injury, it would manifest itself at or around the time of the accident. The clear weight of the evidence supports a finding that the neck symptoms occurred shortly after the accident. The respondent's evidence was that he had neck pain while he was in Royal Perth Hospital. The trial Judge assessed the respondent as an honest man. The real question goes to the reliability of his recollection. The history given by the respondent to other medical practitioners called to give evidence in the case was generally consistent with his evidence. Of particular significance is a history recorded by Dr Rosenthal in a report dated 28 April 1999 in which he describes the accident-caused injuries as including a "painful stiff neck". Mr Edibam's reliability in recording the history given by the respondent is cast into doubt when he noted that the respondent's vehicle was struck in the rear. It is highly unlikely that is an accurate record of what the respondent said. The respondent's evidence was that the relevant statements in Mr Edibam's letters did not accurately record what he said.

117 The appellant submits the Court should have drawn a Jones v Dunkel inference from the respondent's failure to call Dr Kyi. An unexplained failure by a party to call witnesses or to tender documents may in appropriate circumstances lead to an inference that the uncalled evidence

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would not have assisted that party's case:

Jones v Dunkel

(1959) 101 CLR 298 at 308, 312 and 320 - 321. However, the rule does not apply to the non-calling of a witness unless the party might reasonably be expected to call the witness. I am not persuaded that is the case here. Dr Kyi was not a relevant expert and could not (in the absence of a clear allegation of recent invention) give evidence of a prior consistent statement by the respondent. In any event, the appellant would be expected to subpoena medical records both from Dr Kyi and Royal Perth Hospital and, if the records did not support the respondent's evidence, to cross-examine him on those matters. There was no such cross-examination. The appellant was content to rely solely on Mr Edibam's evidence.

118 The third route is based on acceptance of Mr Crockett's medical opinion that delay in the onset of and gradual increase in the neck pain (or a delay in recognition of the separate neck symptoms) is consistent with the respondent's existing degenerative changes becoming symptomatic.

119 Further, the matters to which I refer in the discussion of the first route support an inference that there is a medical explanation for the neck and associated pain. Whether that be the second or third route is of no consequence as they both lead to the conclusion that the only reasonable inference is that the symptoms were accident caused.

Capacity for Manual Labour

120 The ground of appeal is to the effect that the trial Judge gives no reason for finding the respondent had lost capacity for heavy manual labour, nor any indication of what evidence he accepts or what evidence he rejects in reaching the conclusion. The appellant relies on evidence that the respondent worked in the traction section doing heavy work for many months subsequent to his accident (ground 1(a) and (d)).

121 At all material times there were (at least) two sections at Transfield variously identified but which will be referred to in these reasons as the "traction section" and the "coil section". Work in the traction section is heavier than that in the coil section. On his return to work in January 1999 the respondent was placed on light duties in the coil section. In October 1999 there was a downturn of work in the coil section and rather than be placed on leave the respondent asked to be, and was, transferred to the traction section. The respondent remained in the traction section for some eight months, but his ankle worsened and he was referred to Mr Sneddon whom he saw in February 2000. Mr Sneddon recommended surgery to remove a bone fragment inside the left ankle. The surgery was performed in June 2000. The respondent returned to work on 27 July

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2000. He returned to the coil section. Since that time, the respondent has undertaken offsite work for Transfield in Singapore, China and Chile.

122 The trial Judge, in his reasons, linked the respondent's neck and associated pain with his incapacity for heavy manual labour. The trial Judge said, "He has little ankle disability but, because of neck and associated pain, has lost capacity for heavy manual labour." The reasons are on their face deficient. However, having concluded that the only reasonable inference from the evidence was that the neck and associated pain was accident caused, the additional finding concerning the effect on his capacity for manual labour is in substance consequential.

123 The respondent's evidence was that the heavy lifting involved in work in the traction section adversely affected his neck and associated symptoms. When asked whether he felt he could return to work in the traction section, he said no because he had found it very difficult to cope. This is supported by those medical experts who accepted that there was an accident related physical cause for the neck and associated symptoms. Mr Crockett's evidence was that the respondent would continue to have some difficulty with repeated heavy lifting and working with his neck in constrained positions. Mr Harper, an occupational physician, concluded that he had a permanent mild residual disability of the cervical spine and left ankle and felt it was improbable that he would be capable of returning to work in the traction section. Mr Sneddon concluded that his work would not cause any further harm or damage to his ankle, but stated that "if he were to find, for instance, that certain types of work caused him increased pain, then Mr Del Pino might himself impose restrictions to his capacity to work".

124 Dr Anton Kruger undertook two medical examinations of the respondent at Transfield's request. The first was in July 2002 and the purpose of the examination was to ascertain whether the respondent was fit to work in Chile. In approaching his task, Dr Kruger worked on the basis that the respondent would be doing the same type of work in Chile as he did with the company in Perth, that is, in the coil section. He saw him again in July 2003. The purpose of the review was to see if the respondent was fit to do the duties he was then carrying out (that is, in the coil section). Dr Kruger's evidence is of no relevance to the question in issue.

125 The finding that the respondent has lost the capacity for heavy manual labour necessarily follows from the trial Judge's acceptance of the

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respondent as an honest man and the finding that the neck and associated pain was accident caused.

Past and Future Economic Loss

126 It is convenient to commence with the trial Judge's reasons. They are as follows:

Economic loss - past

…

102 In 1996 to 1997, his taxable income was $59,590.

103 The figures for past earnings can be tabulated thus:

Year ending

Net income

30 June 1998 $47,255

30 June 1999 $34,592

30 June 2000 $31,079

30 June 2001 $31,576

30 June 2002 $45,022

30 June 2003 $36,619

producing a total loss, comparing subsequent years with 1998, of $61,691.

104 These figures, though, do not include offsite travelling allowances. Work was quiet in 1999 and 2000 also.

105 The plaintiff also claims $4,177 in respect of the period 30 June 1998 to 31 July 2003 for past loss of superannuation benefits.

106 The evidence is otherwise sparse, however, as to his post-accident losses. It seems he used up his sick leave credits, but the end result of that is not clear. It is to be inferred, I think, that he probably received superannuation benefit payments during this period. His principal claim, though, is loss of overtime and offsite work. I accept that he has lost some overtime work.

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107 I allow $55,000. I allow interest thereon for five years at 4 per cent, $11,000.

108 Economically, he has, Mr Bradley argues, lost capacity to work offsite except on specialist light work and to obtain offsite work and to work overtime. Of 18 hours per week in available overtime, he works only about four hours. That loss extends from 12 January 1999 to trial and thereafter for a reasonable period.

Future loss of earning capacity

109 Mr Bradley accepts, I think, that the plaintiff's original claims under this head must be modified to reflect the fact that the plaintiff has both maintained steady employment at his full hourly rate and has improved physically and mentally over time. I accept, though, that the plaintiff is entitled to damages for some loss of future overtime and offsite work and for a limitation of his capacity for heavy manual work. I allow $50,000."

127 As appears from his conclusions, the trial Judge awarded $55,000 for past loss of earnings and $50,000 for future loss of earning capacity.

128 The appellant's complaints are as follows:

(1) The trial Judge failed to set out any reasons or justification for awarding $55,000 for past economic loss when,

inter alia

, there was no evidence of any significant loss of overtime, he had worked in the traction section for eight months, his earnings were at a similar level to his peers; and there was no finding as to whether the Judge accepted or rejected the evidence of Messrs Baldwin and Lowcock concerning offsite work and overtime;

(2) The trial Judge wrongly identified the respondent's taxable income for the financial year 1996-1997 and the respondent's net earnings for the financial year 1997-98 (ground 3);

(3) As a result of the errors, the figures awarded for past economic loss superannuation interest have no true basis in the evidence;

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(4) In awarding damages for future economic loss for loss of overtime and loss of offsite work (if that is what he did), the Judge offered no or no sufficient reasons for awarding such damages and has failed to identify why he has not accepted the evidence of Baldwin and Lowcock.

129 As I understand the oral submissions on behalf of the appellant, the suggestion is the respondent's transfer from the traction section to the coil section was not related to his accident-caused injuries, but rather to Transfield's workforce requirements. This requires consideration of two periods. The first relates to the respondent's return to work in January 1999 and the second to his return in July 2000 following ankle surgery.

130 At all times up to the accident, the respondent worked in the traction section. As to his return on 12 January 1999, the respondent's evidence was that following discussion with Mr Gregory Parker, Transfield's then workshop superintendent, it was agreed that he could work in the coil section on light duties. Mr Parker's duties included the allocation of resources in the workshop division (ie, the traction section). Mr Parker's evidence was that some time before the respondent returned to work in January 1999 he had asked him whether he was fit to resume work and the respondent replied he did not think he was fit to resume work in the traction section. Mr Parker asked whether, if they could find lighter duties in other areas, would the respondent resume work and he said he would. Mr Parker described the respondent as a capable fitter and there was no other reason for him to be removed from the traction to the coil section, adding, "The company is very fluid with its resources and will move people from areas from time to time."

131 The respondent said that on the second occasion he spoke to Mr Parker before the ankle operation and informed him that he was not going to be able to come back to heavy work. Mr Parker informed him he would arrange for the respondent to return to the coil section. Mr Parker was not asked questions about this occasion.

132 Mr Lowcock, Transfield's Health and Safety Co-ordinator, gave evidence about the respondent's return to the coil section on the first and second occasions. At the material times he was the production manager of the coil section. His evidence concerning the placement of the respondent in the coil section in January 1999 suggests the move was dictated by Transfield's need. He was then asked general questions as follows:

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"And again I think he has been in wire and coils for the last approximately 3 years?---Yes.

And as far as you were concerned in terms of the allocation of the company's resources, where does the company want Mr Del Pino to work?---In wire and coils.

And would that have been the same irrespective of his accident?

---Yes."

133 It is clear the respondent's discussions were with Mr Parker, not with Mr Lowcock. Mr Lowcock's understanding of the basis for the respondent commencing in the coil section in January 1999 is clearly wrong. Otherwise, his evidence is in very general terms. Further, Mr Lowcock does not state that the respondent's preference would be ignored. Indeed, that is inconsistent with the flexibility identified by Mr Parker in his evidence. Mr D Baldwin was the manager of the coil section at the time of trial but not in January 1999. His evidence generally supports Mr Parker's evidence of flexibility; he said the first consideration in placement of employees is the needs of the company and the second is where the employee wants to be.

134 In my view, the only reasonable inference is that the respondent returned to the coil section in January 1999 because of his accident-caused disabilities. The evidence also clearly establishes that he returned to the coil section in July 2000 because that was in line with the respondent's assessment of his capacity and it coincided with Transfield's interests. Further, the clear weight of the evidence is that, but for the accident, the respondent would have continued working in the traction section as he had done at all times before the accident.

135 I turn now to issues of offsite work and overtime. The uncontradicted evidence is that the opportunities for offsite work were greater in the traction section than the coil section and that offsite work was financially advantageous for employees. It appears a reason for that is the employees receive a non-taxable travelling allowance.

136 The respondent's evidence was that he occasionally worked overtime on Saturdays. That appears to be no more than twice per month. He said he did not feel physically able to take on more overtime. Although he was the highest paid fitter in the coil section, he worked the least amount of overtime in that section.

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137 Mr Baldwin's evidence was that there was approximately 18 hours of overtime available each week for electrical fitters in the coil section. As a general rule that would be working two hours a day overtime and eight hours on a Saturday.

138 Mr Parker had been involved in enterprise bargaining on behalf of Transfield. His unchallenged evidence was there were four levels or grades of fitters at Transfield. The level allocation depended upon, among other things, a fitter's experience and length of service. Each level had a different hourly rate of pay. At all material times the respondent was in the top level and was paid the highest hourly rate. In 2001-2002 an electrical fitter at the lowest level earned $43,000 and the top six earned in excess of $80,000. The average was approximately $59,000 per annum. These are gross figures.

139 Mr Lowcock gave evidence in relation to a table showing three-year earnings for the respondent and five other fitters at Transfield in the financial years ending 2001, 2002 and 2003. In the financial year 2000/01 the table showed the respondent earned around $9000 less than the top earner and around $5300 less than the average earnings. In the financial year 2001/02 the respondent earned around $15,000 less than the top earner, but $11,300 more than the average earnings. It was in this financial year that the respondent travelled to Singapore, China and Chile. In the year 2002/03 the respondent earned around $16,000 less than the top earner and around $6600 below the average earnings.

140 Mr Lowcock did not know the hourly rates for all of the fitters listed in the table and confirmed he did not look at the hourly rates when selecting them for inclusion included in the table. He thought there was probably one or two fitters in the top rate. Mr Baldwin's view was that the other five workers represented in the table were on a lower hourly rate than the respondent. This table supports the respondent's claim that his incapacity is productive of financial loss. The next matter is the quantification of the loss.

141 There are a number of errors in pars 102, 103 and 104 of the trial Judge's reasons. Firstly, the taxable income in the financial year 1996-1997 was $40,934 and not $59,590. The figure of $59,590 is the respondent's gross income from Transfield in the financial year 1997/98. Secondly, the trial Judge records that the net income in the financial year ending 30 June 1998 is $47,255. That figure is taken from the respondent's schedule of his claimed economic loss and includes non-taxable travel allowances associated with offsite work. Thirdly, the

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Judge says that the comparison of the net figures for past earnings in the period 1998/99 to 2002/03 inclusive compared with 1997/98 produced a total loss of $61,691. In fact, the total figure is $57,387. The figure of $61,691 has been taken directly from the respondents economic loss schedule. The difference in the figures can be explained as follows. As the respondent had offsite work in 2002, no loss is claimed. However, for the year ending 30 June 2003 the respondent (relying on Mr Parker's unchallenged evidence) adopted a gross income of $80,000 per year which after tax is reduced to $53,792 rather than the 1997/98 net income. On that basis the loss in the year ending 2003 is $17,173.

142 A further error is the trial Judge's statement that the figures do not include offsite travelling allowances. In fact, the calculation of the net figure for the year ending 30 June 1998 which was the yardstick for determining the losses included travelling allowance totalling $6180. Accordingly, the figure of $55,000 compensates for reduction in overtime and offsite work.

143 The Judge's reasons in relation to future economic loss also have to be seen in the context of the respondent's economic loss schedule. The respondent was 42 years of age at the time of trial. The diminution in his earning capacity would affect him for a period exceeding 20 years. The respondent's calculation of future economic loss was based on earnings of $80,000 gross per annum (relying on Mr Parker's evidence) and a retained earning capacity of $50,000 gross per annum. Applying a six per cent discount multiplier for 22 years to age 65, the respondent calculated the loss at $196,041. The respondent acknowledged there would have to be a discount for contingencies. It is apparent from the trial Judge's reasons that he was of the opinion that the respondent's claimed figure should be reduced because the respondent had maintained steady employment at his full hourly rate and had improved physically and mentally over time. He awarded $50,000.

144 Although the trial Judge's reasons relating to the assessment of the past and future loss of earning capacity fall short of the ideal, they are, when examined as a whole and in the context of the respondent's economic loss schedule, sufficient for the purpose of assessing whether there is appealable error.

145 On a challenge to quantum of damages, it is not enough that an appellant may be able to point to some mathematical or other error affecting the calculation or one or more of the elements of the award of damages. An appellant must go further and demonstrate that, by virtue of

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those errors, the resulting award he made is wrong, in the sense of it being outside the range of a sound discretionary assessment:

Baum v Greenhalgh

[2003] WASCA 62 at [92] per Parker J.

146 The uncontradicted evidence is that there was less opportunity for electrical fitters in the coil section to do offsite work which is financially advantageous to employees, if only because of the travel allowance. Further, the trial Judge accepted the respondent's evidence that, because of his residual disabilities, he worked the least amount of overtime of the fitters in the coil section. This is supported by the appellant's table of three-year earnings. However, the table is not an accurate guide on quantum because at least some of the other fitters were on a lower hourly rate than the respondent. The respondent earned above average income in the year in which he worked offsite. Otherwise, his annual income was significantly below that of other electrical fitters, notwithstanding that he was on the top hourly rate and many of the others were not. These findings compel the conclusion that the accident-caused limitation on his capacity for heavy manual work has affected his past and future earning capacity. The appellant did not in the appeal challenge the correctness of the general methodology used by the trial Judge to calculate past economic loss which is based on the respondent's economic loss schedule. It was open on the evidence for the trial Judge to take that course. The amount awarded for future loss of earning capacity is adequately explained and also open on the evidence.

147 I am not satisfied that the total amount awarded for past and future loss of earning capacity is outside the range of a sound discretionary assessment.

Conclusion

148 Notwithstanding deficiencies in the trial Judge's reasons, the findings of fact stand. Accordingly, the appeal should be dismissed.

149 SIMMONDS J: I have had the advantage of reading the judgment in draft of McLure J. For the reasons her Honour gives, I too would dismiss this appeal.

Broadhurst v Del Pino

[2005] WASCA 82

5 MAY 2005

BROADHURST -v- DEL PINO [2005] WASCA 82