Brown v Dato Pty Ltd
[2006] WASCA 170
•24 AUGUST 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROWN -v- DATO PTY LTD [2006] WASCA 170
CORAM: ROBERTS-SMITH JA
McLURE JA
BUSS JA
HEARD: 24 MARCH 2006
DELIVERED : 24 AUGUST 2006
FILE NO/S: CACV 37 of 2005
BETWEEN: MICHELLE LEIGH BROWN
Appellant
AND
DATO PTY LTD (ACN 009 165 879)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
Citation :BROWN -v- DATO PTY LTD t/as SHOW WEST [2005] WADC 50
File No :CIV 1375 of 2002
Catchwords:
Appeal - Assessment of damages for personal injuries - Finding by trial Judge that the plaintiff had deliberately exaggerated her account of the mechanics of the accident and her symptoms - Failure to confront plaintiff with alleged inconsistency between her evidence at trial and her prior medical history - Trial Judge's fact finding and reasoning erroneous - Functions of appellate court - Whether appellate intervention required - Whether retrial should be ordered or whether damages should be reassessed
Cross-appeal - Application by trial Judge of the rule in Sullivan v Gordon - Sullivan v Gordon subsequently overruled by CSR Ltd v Eddy
Legislation:
Nil
Result:
Appeal allowed and damages reassessed
Cross-appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr K J Bradford
Respondent: Mr D R Clyne
Solicitors:
Appellant: Bradford & Co
Respondent: Kott Gunning
Case(s) referred to in judgment(s):
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Browne v Dunn (1894) 6 R 67 (HL)
Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487
Commonwealth of Australia v Elliott [2004] NSWCA 360
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
CSR Ltd v Eddy (2005) 80 ALJR 59
Cullen v Trappell (1980) 146 CLR 1
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401
Fox v Percy (2003) 214 CLR 118
Griffiths v Kerkemeyer (1977) 139 CLR 161
Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Matthews v Sputore, unreported; FCt SCt of WA; Library No 920067; 5 February 1992
Pene v Murphy [2004] WASCA 103
Pledge v Roads and Traffic Authority (2004) 78 ALJR 572
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Purkess v Crittenden (1965) 114 CLR 164
Sticca v Jouvelet [1988] VR 899
Sullivan v Gordon (1999) 47 NSWLR 319
Thomas v Kula [2001] WASCA 362
Thomas v van den Yssel (1976) 14 SASR 205
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
Watts v Rake (1960) 108 CLR 158
Williams v Dawson (2000) 31 MVR 559
Wright v Shire of Albany (1993) A Tort Rep 81-239
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Case(s) also cited:
Australian Institute of Management v Rossi [2004] WASCA 302
Falcon Joinery Co v Maher [1963] NSWR 354
Gipson v Broken Hill Proprietary Company Limited (1985) A Tort Rep 80712
Hull v Nguyen Van Cang, unreported; FCt SCt of WA; Library No 940216; 27 April 1994
Husher v Husher (1999) 197 CLR 138
Nash v Berton [2001] SASC 94
Newman v Nugent (1992) 12 WAR 119
Skinner v Broadbent [2006] WASCA 2
Smith v New South Wales Bar Association (1992) 176 CLR 256
Van Gervan v Fenton (1992) 175 CLR 327
ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons of McLure JA and Buss JA. I agree with the reasons of each of them with respect to the outcome of the individual grounds of appeal. I agree with the disposition of the appeal which McLure JA would make, for the reasons given by her Honour.
McLURE JA: I have had the advantage of reading the reasons for judgment of Buss JA. I agree that the appeal should be allowed and the cross‑appeal dismissed.
The appellant appeals against an assessment of damages for personal injuries arising out of an accident on the "ghost train" at the Perth Royal Show on 4 October 2001. In particular, the appellant appeals from the award of damages for past and future economic loss, gratuitous services, future medical expenses and general damages.
The learned trial Judge made the following findings of fact. As a result of the accident, the appellant suffered a soft tissue injury to her lower back resulting in continuing pain symptoms attributable to a slight disc bulge or protrusion at L5/S1. The appellant would improve, particularly if she undertook a rigorous exercise regime. The appellant also had a pre‑existing annular tear and disc degeneration at L4/5 and L5/S1.
There was a conflict of expert medical evidence concerning the nature of the accident‑caused injuries, the appellant's prognosis and whether the injuries prevented the appellant from working full‑time. The appellant called Dr G Westhoff, her general practitioner, Mr B Slinger, an orthopaedic surgeon and Dr G Gee, an anaesthetist practising as a pain specialist. The respondent called Dr A Marsden, an occupational physician, Mr P Hardcastle, an orthopaedic surgeon and Mr S Brash, a retired orthopaedic surgeon.
The trial Judge said (at [26] ‑ [28]):
"There is encouragement for the [appellant] in the medical evidence. I accept and rely on Mr Hardcastle's opinion that she will improve as can be expected with a soft tissue injury. That opinion is supported by the evidence of Mr Brash as to the lack of any significant pathology. I also accept, based on the evidence of a number of the experts, that an annular tear will heal itself. I believe the [appellant] has a very promising
prognosis once she puts this case behind her and gets on with her recovery.
I also accept that this was the case where the forces involved in the accident were minimal – nothing like the forces at work in a motor vehicle collision at speed. I rely on Dr Marsden's opinion that it was the lightest, slightest injury to have ended in a long term back strain … Dr Westhoff described it as a 'low–velocity' injury. While that in itself does not exclude long term back pain, it does in this case support Mr Hardcastle's prognosis that the [appellant's] condition will improve.
I also accept Mr Brash's opinion that in this case litigation is itself playing a part in her symptoms. That is borne out by Dr Marsden's evidence that during his assessments in 2003 and in 2004 the [appellant] never described a 'ripping' sound in her back at the time of the accident and yet, the [appellant] gave that evidence at trial later in 2004. She has clearly exaggerated her account of the incident in order to bolster her claim."
The appellant had been in continuous employment since leaving school in 1985 at the age of 15. For the majority of that time she had been employed by Allianz Insurance (formerly MMI Insurance). The appellant had a young son who was born on 15 August 1999. At the time of the accident the appellant was working part‑time as a case manager. Her intention had been to return to full‑time employment with Allianz when her son was around 2 or 3 years old. The appellant recommenced full‑time employment with Allianz in April 2002 but because of back pain returned to part‑time employment, working 22½ hours per week from October 2002.
The appellant claimed past loss of earning capacity from 1 October 2002 to the date of trial which was held in December 2004. The trial Judge awarded damages of $28,201 for past loss of earning capacity calculated by reference to the difference between what the appellant would have earned as a full‑time employee of Allianz and what she actually earned in that period, reduced by 7 per cent for contingencies. The adverse contingencies to which the trial Judge had regard included the risk of the appellant's employment being affected by her pre‑existing degenerative condition becoming symptomatic; the slight risk of the appellant losing her job having regard to a negative work performance review; the larger risk the appellant would have reduced her work hours as a result of the stress from her marriage breakdown and maternal commitments to her young son; and other health problems. On the positive side, the trial Judge allowed for the possibility that the appellant may have been promoted to the position of technical officer.
The appellant contends the trial Judge erred in her award for past loss of earning capacity on the grounds that:
(a)it was wrong in principle to reduce past loss of earning capacity for contingencies;
(b)there was no evidence to justify making provision for an adverse contingency relating to the loss of job, marital and maternal stresses and other health problems; and
(c)the trial Judge used the incorrect rate of pay for a case manager, the correct rate being a minimum of $52,000 per annum which was $758.00 net per week.
As to the appellant's future loss of earning capacity, the trial Judge allowed an award based on three further years of part‑time work on the basis that the appellant's back symptoms would have improved and her maternal commitments diminished to the point where she would have regained her pre‑accident full‑time earning capacity. The trial Judge also reduced the amount by 7 per cent for contingencies, resulting in an award of $35,623.
In addition to the grounds set out in (b) and (c) above, the appellant challenges the award for future loss of earning capacity on the following further grounds:
(i)the appellant was not challenged on her inability to carry out full‑time work;
(ii)on the balance of probabilities the appellant had lost her capacity to work full‑time in the future; and
(iii)the trial Judge should have calculated future loss of earning capacity based on a total loss of earning capacity to age 65 with deductions to reflect contingencies for retained earning capacity and other relevant matters.
The appellant also claims that a number of findings were not open on the evidence, including that:
(a)the appellant had exaggerated and attempted to bolster her claim;
(b)the appellant had a very promising prognosis once she put the case behind her and got on with her recovery;
(c)the appellant's condition would improve with a vigorous exercise programme;
(d)the annular tear was not caused by the accident; and
(e)the appellant had future capacity to work full‑time after three years.
The appellant contends the trial Judge should have found that the accident‑caused injuries were permanent.
The appellant challenges the award for past and future loss of gratuitous services on the ground that the trial Judge erred in concluding that the appellant only required domestic and other assistance for 1 1/2 hours per week when the evidence was that 4 hours per week was reasonable.
The appellant challenges the award for future medical expenses on the ground that it was limited to three years. This is connected with the finding relating to loss of future earning capacity. Finally, it is contended that the award of $20,000 for general damages was outside the range of a sound discretionary judgment.
Past loss of earning capacity
The appellant contends the trial Judge erred in principle or in fact in making a deduction for contingencies in the award for past loss of earning capacity. The challenges to this award are unaffected by the trial Judge's credibility findings concerning the appellant.
Earning capacity, both past and future, must be assessed by reference to what the claimant would have been able to earn if she had not been tortiously injured. Where, as here, the Court is concerned with a hypothetical situation, it may, and often will, be appropriate to make a deduction for contingencies. However, in considering whether to make an allowance for contingencies and if so the quantum thereof, the individual circumstances of each claimant must be considered. That is particularly so in relation to past loss of earning capacity because there may be matters that are not uncertain as at the date of trial. In this case, the past loss of earning capacity was measured by reference to what the appellant actually received as a part‑time employee of Allianz and what she would have been paid as a full‑time employee of Allianz in the relevant period. There is no suggestion the appellant's earning capacity was greater or less than what she did or could earn with Allianz.
The trial Judge reduced both past and future loss of earning capacity by 7 per cent for contingencies. The adverse contingencies for past loss were the risk of job loss, marital and maternal stresses and other health problems. The trial Judge said there was a slight risk of the appellant losing her job. She relied on the evidence of Dianne Culley and the appellant for that conclusion. Ms Culley was formerly employed by Allianz and was the appellant's immediate manager until December 2002. Ms Culley had occasion to warn the appellant in April 2001 about "attendance issues". That was still a matter requiring further attention by the appellant as at September 2001. Ms Culley conceded that continuing problems with non‑attendance had the potential to result in lack of promotion or job loss. However, her evidence was that the appellant's attendance issues had resolved (AB 89). The appellant's current manager at Allianz (Gail Smith), described the appellant as having very sound technical knowledge with long experience in workers' compensation insurance and a conscientious employee. She was still employed by Allianz at the date of trial. There is no factual foundation for including the risk of job loss up to the date of trial as an adverse contingency when the appellant had been continuously employed by Allianz in the relevant period. The trial Judge erred in doing so.
As to "other" health problems, the appellant had a throat problem which required surgery in February 2003 when she took one months' leave and further surgery in February 2004 causing her to take two to three days off work. However, she took the time off work as annual leave. There were no other relevant health problems. There is no justification for including the risk of other health problems as an adverse contingency in the determination of past economic loss.
The appellant and her husband separated in May 2002 when their son Jayden was nearly 3 years old. At that time she was in full-time employment which continued until October 2002 when on medical advice relating to her back pain, she returned to part‑time employment. However, the attendance issues between April 2001 and September 2001 related to marriage and maternal stresses. I am not persuaded that the trial Judge erred in concluding there was a possibility that these matters would have resulted in the appellant continuing in part‑time employment. However, the risk would be relatively slight and taking into account my conclusion below that the award is conservative, there should be no reduction in the award for past loss of earning capacity: Griffiths v Kerkemeyer (1977) 139 CLR 161 at 186; Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487; Sticca v Jouvelet [1988] VR 899 at 901; Luntz, Assessment of Damages for Personal Injury and Death, 4th ed at 5.2.8. I would increase the award by 7 per cent.
The appellant also contends the trial Judge used the incorrect rate of pay in calculating what she would have earned if she had worked full‑time. The appellant's case at trial was that the Judge should assess damages on the basis that, but for the accident, the appellant would have worked full‑time as a technical officer earning $55,000 gross per annum. The trial Judge rejected this claim and used the figure of $1400 net per fortnight. The appellant's evidence was that when she was working full‑time, her take home pay was approximately $1400 per fortnight. I infer that is a reference to the period April 2002 to October 2002. The trial Judge calculated that $1400 net was $1840 gross per fortnight (which on my calculation is $47,840 gross per annum).
However, the appellant's evidence was that as at the date of trial, a full‑time employee in her position of case manager received "around $52,000 plus" gross per annum. There is no evidence as to when and by what amount the salary for a case manager changed in the relevant period. In the absence of relevant information, the trial Judge was required to do the best she could. I would dismiss this ground. However, it follows that the calculation of the loss is conservative.
For these reasons, I would set aside the award of $28,201 for past loss of earning capacity. In lieu thereof, I would order that the award be $30,324. Consequential adjustments would be required for interest and superannuation.
Future loss of earning capacity
The trial Judge found the appellant's injuries would improve and that by three years after trial she would have the capacity to undertake full‑time work. It is apparent from pars 26 ‑ 28 of the trial Judge's reasons (set out above) that these findings are based, in part, on the adverse credibility findings that the appellant "clearly exaggerated her account of the incident in order to bolster her claim" and that "the litigation is itself playing a part in [the appellant's] symptoms". It is implicit in these adverse findings considered together that the trial Judge concluded that parts of the appellant's evidence were intentionally false or misleading.
These matters were not put to the appellant in cross‑examination. Nor was it put to the appellant that she had given an inconsistent history of the accident to Dr Marsden. Indeed, there was no general challenge and no relevant specific challenge to the appellant's evidence‑in‑chief. The expert reports, including those relied on by the respondent, provided no notice of, or basis for, a challenge to the appellant's honesty or reliability. Further, the respondent did not challenge the appellant's credibility in its oral or written closing submissions. To the contrary, counsel for the respondent (quite properly in my view) conceded in closing that the appellant had the pain she described in her evidence and that the pain was not wholly or partly the result of her pre‑existing back condition. Implicit in this is a concession that the accident caused the symptoms. The matters on which the parties joined issue at trial were largely medical in nature, being the identification of the accident‑caused injuries and the likely prognosis. Moreover, the trial Judge failed to give notice to the appellant that she was considering such adverse findings or an opportunity to the appellant to answer them. Having regard to the way the trial was conducted, the trial Judge's failure constitutes a breach of the rules of procedural fairness: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580; Williams v Dawson (2000) 31 MVR 559; cfThomas v van den Yssel (1976) 14 SASR 205. As a consequence of the breach, the adverse findings and other findings affected by them, most particularly the findings relating to the appellant's condition improving, must be set aside.
The next question is whether it is open to this Court to proceed on the basis that the appellant's evidence should be accepted. If not, a retrial would be required: CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; Pledge v Roads and Traffic Authority (2004) 78 ALJR 572. In the rather unusual circumstances of this case in which the respondent did not challenge the appellant's evidence relating to the accident or her symptoms and went further and in effect conceded she had the symptoms of which she complained and that they were accident‑caused, the trial Judge acting reasonably was bound to accept the appellant's evidence on these matters: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370 ‑ 371 per Gibbs J; Williams v Dawson at 561. Further and in any event, the adverse findings are not reasonably open on the evidence. They were not based on the trial Judge's impression of the appellant's conduct or demeanour as a witness. They are based on the evidence of Dr Brash and the appellant's alleged failure to inform Dr Marsden of the ripping sound in her back at the time of the accident. The latter is itself an inadequate foundation for the adverse findings. As to Dr Brash, the trial Judge's findings as to the nature and effect of the accident‑caused injuries necessarily required the rejection of all his evidence for the reasons discussed below. That being the case, the appellant's evidence on significant matters is essentially uncontradicted. Her evidence being unchallenged and relevantly uncontradicted, it should be accepted.
The appellant's evidence was as follows. The accident occurred on a Thursday. The appellant took her son Jayden on the train ride. When the train stopped she picked up Jayden and stepped onto the platform with her left foot. At that moment the train went forward and the appellant hyper‑extended her back. She described a ripping sound in her back and immediately felt back pain. The pain continued and then worsened the following day and over the weekend. She consulted her general practitioner, Dr Westhoff, on the following Monday. He prescribed anti‑inflammatory medication and rest. On review two days later the pain in her lower back continued and she had numbness in her second left toe. By 16 October 2001 the appellant's pain was radiating down into her left buttock and she was experiencing numbness into her lateral foot. Dr Westhoff referred the appellant to Dr Gee and later to Mr Slinger. Between the accident and the time of trial the appellant had undergone a variety of treatments for her back pain including anti‑inflammatories, pain medication, exercise programmes to strengthen her abdominal muscles, rhizotomies and injections in the sacroiliac joint and the S1 root sleeve. The appellant's evidence was that she was in pain every day, the severity of which varied. The pain was in her lower left back area going down into the left buttock and her left leg on occasion. She gained some relief by walking or lying down.
The appellant had been a full‑time employee from the age of 15 until just before the birth of her son. She ceased work one month before his birth. She returned to work nine weeks after the birth on a part‑time basis (initially 5 hours per day, five days per week). By July 2000 her son was placed in day care, initially one day per week and subsequently three days per week. The appellant's former husband looked after Jayden on the two week days when he was not at day care. The appellant was still working part‑time when the accident occurred. After the accident, the appellant's working hours were changed to suit her condition. She worked a total of 22 ½ hours per week. She found those hours manageable but had to take pain medication to get through the day. Six months after the accident, Allianz requested that she work full‑time. She worked full‑time for about six months before returning to part‑time employment. She said the pain became unbearable by the end of the day and by Friday she was in great difficulty. Her manager suggested she return to part‑time work and she was advised by her medical practitioners that it would be better for her to do so.
Between 1986 and March 1995 the appellant was involved in four incidents involving her back. However, all symptoms quickly resolved and did not result in any, or any significant, time off work. She had no back‑related symptoms prior to the accident. The appellant's evidence was that but for the accident she would have been working full‑time. As to exercise, she said she tried swimming and other exercise as recommended and that she walked to keep up her fitness (at AB 65).
A large measure of the appellant's work with Allianz involved being seated and working at a computer. Gail Smith, a corporate account manager with Allianz, outlined the steps taken by Allianz to assist the appellant which included a full ergonomic assessment of her work station, the provision of an ergonomic chair, the adjustment of her days and working hours and freedom for her to move around at work.
I turn now to the challenged findings and the medical evidence on those issues. There was a suggestion by the appellant that the trial Judge erred in making a finding as to the accident‑caused injuries. As I understand this somewhat surprising submission, it is in substance a claim that the trial Judge should have found that the accident caused the appellant's degenerative condition to become symptomatic. That is against the weight of the evidence. It was reasonably open to the trial Judge to find that the appellant suffered a soft tissue injury to her lower back and that her continuing pain symptoms arose from a slight disc bulge or protrusion at L5/S1. Further, I agree with Buss JA for the reasons he gives that the trial Judge's finding that the annular tear predated the accident was reasonably open on the evidence.
The central challenge in the appeal is to the trial Judge's finding that the appellant's condition was not permanent and would improve to such an extent that, by three years from the date of trial, the appellant would have the capacity to work full‑time and the related finding concerning the need for rigorous exercise. The trial Judge found (at [24] and [26]) that the appellant "will improve, particularly if she follows medical advice and undertakes a rigorous exercise programme" and that the appellant "will improve as can be expected with a soft tissue injury".
There is no evidence to support a finding that rigorous exercise would assist. All the medical evidence was to the effect that a light exercise programme was recommended and that it should assist to some unspecified extent to moderate the appellant's symptoms. The trial Judge did not expressly consider or make a finding about the exercise undertaken by the appellant. Her uncontradicted and unchallenged evidence was that she did exercise, including swimming and walking, but without any material or permanent improvement in her symptoms. In the absence of any challenge to the fact or adequacy of the exercise undertaken by the appellant, there is no reasonable basis for a finding that exercise would now result in any material or permanent improvement in the appellant's condition.
However, the trial Judge's finding of improvement is not entirely dependent on exercise. She also relies on the nature of the injury. It is necessary to refer to the medical evidence. It should be noted at the outset that the trial Judge did not expressly or impliedly resolve the conflicts of medical opinion on the basis of credibility or the conduct or demeanour of the witnesses in Court. In my judgment, this Court has no relevant disqualifying disadvantage compared to the position enjoyed by the trial Judge. The basis for this judgment will appear in the course of considering the expert evidence on disputed issues.
The radiological evidence (from MRIs performed in July 2002 and August 2003) confirmed the appellant had degenerative disc desiccation at L4/5 and L5/S1 and a moderate disc bulge and annular tear at L5/S1.
Dr Westhoff, the appellant's general practitioner, had very regular medical consultations with the appellant from the date of the accident until trial. His assessment of the injury causing the appellant's symptoms was based in part on the opinions of specialists to whom he referred the appellant. His opinion was that the appellant's condition was permanent. Given the appellant's symptomology, he concluded she did not have the capacity for full‑time work.
Mr Slinger examined the appellant twice, first in July 2002 and again in October 2004. His evidence was that there was no progress in the appellant's condition over that period. Mr Slinger was not specific about the precise injury caused by the accident. His evidence as to cause and prognosis in cross‑examination was as follows (at AB 118):
" … what do you say is the cause of this lady's back pain? What is injured? What is damaged?‑‑‑Cause is the injury of 2002. The damage has been done to the soft tissue which include one or all of the disc, the facet joint, the muscles and the ligaments.
Are you not able to assist by saying which of those it is?‑‑‑No. The only imaging that we have at our disposal is an MRI which doesn't show up muscles and ligaments. It does show up discs and it does show up joints but that’s why we are limited in knowing which of these structures is causing her symptoms.
Without knowing that how is it possible to make a prognosis?‑‑‑Because by my clinic experience over a period of 25 or 30 years I know what happens to these sort of people – this sort of injury, I should say – and the fact that this lady has had symptoms now for two years. Again from my experience, [that] means that it's a stable situation; stable, at least from the injury in terms of probability that her present situation is likely to continue.
Is there no prospect that her situation could improve from this injury?‑‑‑I wouldn't say no. There's never such a word as no. If she gave up work I think her condition would improve."
Mr Slinger's opinion was that the appellant's accident‑caused disabilities were permanent and that she was only fit for part‑time work.
Dr Gee had been treating the appellant for her back pain from 4 April 2002. He came to the view that the appellant's symptoms were caused by a disc tear that was irritating the adjacent S1 nerve root. Her situation had continued for some while so his expectation was that it would probably continue in that way although everything was open to variation. In his opinion the appellant did not have the capacity for full‑time work.
Mr Hardcastle examined the appellant on one occasion in November 2003. In his opinion the accident resulted in an annular tear and subsequent central disc protrusion at L5/S1 which aggravated a pre‑existing degenerative condition. He states in his report that in the short to medium term, the appellant's symptoms were likely either to remain the same or slowly to improve and it was not possible at that stage to determine her long-term prognosis. According to Mr Hardcastle, other surgeons who had seen the appellant more recently would be in a better position than him in making a prognosis. He said that in the ordinary course, a disc protrusion gets smaller over time, in which event the symptoms would improve. However, Mr Hardcastle noted that there was a small percentage of patients where shrinking did not occur. He did not say, as the trial Judge states, that the appellant's condition "will improve".
Mr Hardcastle was also of the opinion that, but for her maternal commitments, the appellant as at November 2003 had the capacity for full‑time clerical work because it would not worsen her condition. However, he accepted that towards the end of the day it would be normal for a patient with disc problems to suffer increased stiffness and pain. When it was put to Mr Hardcastle that the appellant had unsuccessfully attempted to return to full‑time work, he responded:
"I would accept that but if I was treating her I would have then arranged for a work‑site visit and made perhaps some modifications that would allow her to work full‑time."
The modification he had in mind included modifications to her seating and the provision of short breaks. Mr Hardcastle was unaware of the steps taken by Allianz to accommodate the appellant's condition.
Dr Marsden examined the appellant twice, first in May 2003 and again in June 2004. In Dr Marsden's opinion, the appellant had a soft tissue injury of an ongoing nature with facetal involvement and possibly disc involvement. It is also apparent from his evidence that he had some difficulty correlating the forces giving rise to the injury and the long‑term symptoms suffered by the appellant. He recommended to the respondent's lawyers that the appellant's claim be settled because stress associated with the litigation may be contributing to the appellant's symptoms, a matter not put to the appellant. However, Dr Marsden accepted that the appellant (who he described as giving the picture of somebody who was being scrupulously honest) had variable back pain of differing degrees of severity. He also concluded that she had the capacity to work her normal pre‑injury part‑time hours in an office situation provided she could sit, stand and walk within her own time frame.
Mr Brash saw the appellant on one occasion in May 2003 shortly before he retired. His written report tendered in evidence gave no hint of the opinions he proffered in oral evidence. In his written report he said it would appear the appellant had persistent and consistent localised tenderness around the posterior superior iliac spine. He said he was at a loss to be precise as to what exactly the pathology was and continued:
"As far as management is concerned I would reassure [the appellant] that there is no significant pathology here. I do believe that she has symptoms here. Quite clearly she has not responded to the passage of time nor the treatment to date. The severity of her pain (4/8 out of 10) is now the same as it was one year ago."
By the time he came to give oral evidence, and with the same information he had in May 2003, Mr Brash opined that there was no anatomical or pathological reason for the appellant's pain, which he characterised as severe and constant. He disagreed "entirely and strongly" with Mr Hardcastle's opinion as to the nature of the injury. In particular, he rejected the proposition that the appellant's symptoms were linked to her disc protrusion, annular tear or degenerative change on the basis that such changes are commonplace in the population and do not always cause pain. I infer this is the basis for his conclusion as to the lack of any significant pathology. According to Mr Brash, a soft tissue injury always resolves within three to six weeks even if a pre‑existing condition is rendered symptomatic. Based on this belief, he concluded that the litigation played a very large part in the appellant's symptoms. The thrust of his oral evidence was that the appellant was a malingerer.
Mr Brash's oral evidence is inconsistent with his report. His opinion that soft tissue injuries always resolve quickly is also inconsistent with all the other medical evidence; it is unconvincingly categoric and absolutist. His evidence ought be given no weight. Further, his evidence and conclusions are interdependent. It is logically impossible to cherry pick parts of his evidence. The trial Judge's findings as to the nature and effect of the injury necessarily requires the rejection of all Mr Brash's evidence.
The overwhelming weight of the medical evidence supports a finding that the appellant's condition would not, on the balance of probabilities, materially improve in the future. That was the evidence of Mr Slinger and Drs Gee and Westhoff. As I understand the evidence, their conclusions were based on the fact that the appellant's condition had been stable for a considerable period. That is a rational and logical foundation for their opinion. Mr Hardcastle's evidence did not conflict with that of Mr Slinger and Drs Gee and Westhoff on this issue. He said it was not possible in November 2003 to determine the appellant's long‑term prognosis and that other surgeons who had seen the appellant more recently would be in a better position to do so. Although he noted that in the ordinary course, a disc protrusion gets smaller and the associated symptoms would improve, he accepted that did not occur in a small percentage of patients. Dr Marsden's evidence falls well short of supporting a finding that the appellant's condition would improve to a sufficient extent to alter his opinion that the appellant's capacity was for part‑time work.
I am satisfied that the trial Judge erred in finding that the appellant's condition would materially improve three years after trial. She should have found on the balance of probabilities that the appellant's condition would not materially improve in the future. However, this is not a finding about an event that has occurred (in which event it would be treated as certain) but a hypothetical future matter where allowance is made for possibilities: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642 ‑ 643; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485. In that context, a finding on the balance of probabilities means no more than that there is at least a 51 per cent probability that the condition is permanent. The possibility of improvement, the fact that relatively small forces caused the appellant's injuries and her pre‑existing degenerative condition are all relevant factors in determining the provision to be made for contingencies. This approach applies to other heads of damages involving a hypothetical or future matter: Malec at 645
The remaining issue is whether the appellant's condition rendered her unfit for full‑time clerical work. The appellant's evidence of her experience in April ‑ October 2002 supports a finding to that effect. It is also supported by the medical opinions of Mr Slinger and Drs Gee, Westhoff and Marsden. It is contradicted by the evidence of Mr Hardcastle. He was of the opinion that the appellant's condition (apart from maternal commitments) did not impair her capacity for full‑time clerical work. Mr Hardcastle discounted the appellant's previous post‑accident full‑time work experience on the basis that modifications to the workplace and work practices would improve the situation. That is contradicted by the evidence. Allianz had gone to significant lengths in this regard including the conduct of an ergonomic assessment of the appellant's work station, the provisions of an ergonomic chair and allowing her to take breaks as required. Further, Mr Hardcastle conceded that the appellant's symptoms would increase towards the end of a work day.
The strong weight of the evidence supports a finding that the appellant did not have the capacity for full‑time clerical work. That was her actual experience. Having regard to her work attitude and history, there was no reason to suspect the reasonableness of her experience. Her experience accorded with all the medical assessments save for that of Mr Hardcastle. Mr Hardcastle's assessment was based in part on the misunderstanding that her experience would be improved with changes to her workplace and conditions. Further, he conceded that full-time work would result in increased pain and other symptoms. I am satisfied that it was not reasonably open to find that the appellant had the capacity for full‑time clerical work. The trial Judge should have found that the appellant's condition was permanent and impaired her capacity for full‑time clerical work.
Accordingly, it is necessary to make a fresh assessment of the award for future loss of earning capacity. There is no merit in the appellant's contention that the trial Judge erred in failing to calculate future loss of earning capacity based on a total loss of earning capacity to age 65 with deductions to reflect contingencies: Pene v Murphy [2004] WASCA 103 at [5] per Miller J. The evidence in this case makes it appropriate to assess the loss based on the methodology approved in Cullen v Trappell (1980) 146 CLR 1 at 12. That is to ascertain the difference between the appellant's earning capacity as it would have been but for the accident and her earning capacity as it was at trial, then estimate the period over which the loss is likely to occur and finally to estimate the sum which, if paid at judgment, would compensate the appellant for that loss. It is appropriate to assess the appellant's future loss on the basis that she is only able to continue working part‑time in her present occupation to retirement at age 65 less a deduction for the usual contingencies and a special deduction on account of the possibilities that her condition may improve, that before retirement she may have been similarly disabled by her degenerative condition and the limited force that caused her current condition.
The difference in net earnings per week between working part-time and full‑time should be calculated by reference to the sum of $52,000 gross per annum which the appellant says is $758 net per week. I will use that figure on a provisional basis and hear from the respondent if the figure is contested. The appellant's net weekly earnings for part‑time work at the time of trial was $434. Thus, the difference in weekly net earnings is $324 per week. The appellant relies on a multiplier of 739.6 (to which the respondent made no express objection), resulting in a difference in net earnings of $239,630.
As to contingencies, the appellant contends that some positive allowance needs to be made for the appellant having the benefit of a sympathetic employer (Wright v Shire of Albany (1993) A Tort Rep 81-239). The evidence establishes that Allianz is a sympathetic employer however it is highly unlikely that the appellant's employment with Allianz would be involuntarily terminated. In any event, the risk of a person with the appellant's qualifications and experience being disadvantaged in the open labour market would be slight. However, on balance a modest positive allowance should be made.
As to the adverse contingencies, the evidence establishes that there is a significant possibility that the appellant's accident‑caused condition may improve. There is also a significant possibility that, but for the accident, she would have been relevantly disabled by her degenerative condition or another cause having regard to the limited force involved in producing the appellant's current injuries. I would reduce the difference in net earnings by 40 per cent and award $143,778.
Accordingly, I would set aside the award for future loss of earning capacity and provisionally award the sum of $143,778. I would hear from the parties as to the calculation of the amount. Consequential adjustments would be required for interest and superannuation.
Gratuitous services
The appellant's claim covered both services she required and services she had previously provided for her family. Referring to the relevant authorities including Sullivan v Gordon (1999) 47 NSWLR 319 and Thomas v Kula [2001] WASCA 362, the trial Judge provided for the services reasonably required for both. In CSR Ltd v Eddy (2005) 80 ALJR 59, the High Court held that the rule in Sullivan v Gordon was not part of the common law in Australia and that all Australian cases supporting that principle should be overruled. A plaintiff who is prevented by personal injury from providing gratuitous personal or domestic services to another person cannot recover damages calculated by reference to the commercial value of those services. A plaintiff's capacity to assist others before the tort can be regarded as an amenity and a plaintiff may recover compensation for loss or impairment of that amenity as part of general damages: CSR Ltd v Eddy at [71].
The trial Judge found that as a result of her back injury the appellant required 1 1/2 hours per week of assistance with heavy cleaning and gardening. The rate was agreed at $15 per hour. In my assessment, the application of current law would not materially alter the figure of 1 1/2 hours per week or the resulting award in which event the cross‑appeal should be dismissed.
The appellant's claim of 4 hours per week is based on household duties undertaken by the appellant's sister when she cohabited with the appellant for six months and household duties undertaken by her former husband when looking after his son Jayden. I agree with the respondent's characterisation of these as services provided on the basis of shared occupation and services provided in assisting the household for the benefit
of his son respectively. I would dismiss the appellant's claim to increase the gratuitous service hours from 1 1/2 to 4 hours.
The award for future gratuitous services was calculated on the basis that the appellant's condition would improve at the end of three years by which time she would no longer need assistance with heavy housework. As that finding has been set aside, it is necessary to recalculate the award. The appellant's life expectancy was 48 years, multiplier 841. The award is $11,353 (841 x $15 x 1 1/2 hours less 40 per cent).
Medical expenses
The trial Judge allowed $14 per week for future medical costs for three years. That now needs to be adjusted. I would allow $7064 (841 x $14 less 40 per cent).
General damages
The trial Judge's error in finding that the appellant's condition was temporary enlivens this Court's jurisdiction to set aside the award of general damages. The evidence established that the appellant experienced a good deal of pain following the accident and would continue to do so. She suffered pain whilst working and carrying out her other activities. It limits her capacity to walk long distances, sit for extended periods and affects her sleeping. On the other hand, the trial Judge was correct to note that there is little evidence that her condition prevents her from engaging in her pre‑accident activities. I would award $40,000 in general damages.
Conclusion
I would allow the appeal and set aside the awards for past loss of earning capacity and interest thereon, past loss of superannuation, future loss of earning capacity and interest thereon, future loss of superannuation, future gratuitous services, future medical expenses and general damages. I would hear from the parties as to the calculation of the substitute awards in accordance with these reasons.
BUSS JA: On 4 October 2001, the appellant was involved in an accident at the Perth Royal Show. She had ridden on an amusement ride, known as a "ghost train", with her 2‑year‑old son, Jayden. The train was stationary at a platform. When the appellant was alighting from the train with her son, whom she was carrying, the train moved forward suddenly. The appellant alleged that this movement caused her back to hyperextend and, in consequence, she suffered pain and injury.
The appellant commenced proceedings against the respondent in the District Court. The respondent was the owner and operator of the ghost train. It admitted that the sudden forward movement of the train was caused by its negligence, but denied that the appellant had suffered pain or injury, as alleged or at all. The respondent pleaded, in par 6 of its amended defence, that if, which it denied, the appellant had suffered pain and injury, as alleged by her, then the pain and injury was caused, further or alternatively contributed to, by:
"(a)An incident that occurred approximately 16 years ago when the [appellant] was sitting on a chair, rolled backwards and in the process of wheeling backwards the wheels jammed and the [appellant] fell over. The [appellant] at that time experienced low back pain and received medical treatment;
(b)An incident that occurred approximately 15 years ago when the [appellant] slipped and fell when the [appellant] was walking down stairs. Following this incident the [appellant] experienced bruising in the area of her lower back and low back discomfort;
(c)An incident that occurred in or about February 1995 when the [appellant] lifted heavy files and felt pain in the lower back radiating to the left buttock;
(d)An incident that occurred in or about March 1995 when the [appellant] fell in the bathroom and experienced lumbar pain;
(e)The normal, naturally occurring, age related, progressive degenerative changes in the [appellant's] lumbar spine;
(f)The strain placed on the [appellant's] lumbar spine as a result of her previous pregnancy;
(g)The strain placed on the [appellant's] lumbar spine as a result of lifting and caring for her son."
On 13, 14 and 15 December 2004 the appellant's action was tried before Yeats DCJ. On 16 March 2005 the learned Judge entered judgment for the appellant in the sum of $111,456.
The witnesses at trial
The witnesses called by the appellant at trial comprised:
(a)the appellant herself;
(b)Dianne Culley, who, at material times, was a claims manager for Allianz Insurance, the appellant's employer;
(c)Deanne Coates, the appellant's sister;
(d)Michael Brown, the appellant's former husband;
(e)Gail Smith, who, at material times, was a corporate account manager for Allianz Insurance;
(f)Dr Gerald Westhoff, the appellant's general medical practitioner;
(g)Mr Barrie Slinger, an orthopaedic surgeon; and
(h)Dr Geoffrey Gee, an anaesthetist.
The respondent called the following witnesses:
(a)Dr Andrew Marsden, an occupational physician;
(b)Mr Philip Hardcastle, an orthopaedic surgeon; and
(c)Mr Stewart Brash, an orthopaedic surgeon.
The appellant's relevant personal circumstances and employment history
The appellant was born on 7 August 1969. She completed Year 10 at school. In 1985, at age 15, she commenced employment with an insurance company, MMI Insurance, which is now called Allianz Insurance. She worked for Allianz Insurance for approximately two years, then for a Perth law firm as a law clerk for approximately two and a half years, and then as a receptionist in Exmouth for approximately one and a half to two years. In approximately 1991, the appellant commenced employment as a claims clerk with a firm of insurance brokers. She worked for them for approximately two years. The appellant then worked briefly for an insurance company, CE Heath. Since 1993, the appellant has been employed by Allianz Insurance. She has never been unemployed.
On 29 January 1999 the appellant married Michael Brown. On 15 August 1999 Jayden was born. The appellant had maternity leave for one month before Jayden's birth, and for nine weeks after his birth. In May 2002 the appellant and Mr Brown separated.
Before Jayden's birth, the appellant's ordinary hours of work with Allianz Insurance were 37.5 hours per week. After his birth until approximately July 2000, her ordinary hours of work were 25 hours per week, being Monday to Friday from 7 am to noon. In approximately July 2000 the appellant changed her hours of work. She commenced working on Monday, Tuesday and Wednesday only, and for 7 1/2 hours per day.
The appellant's evidence as to her injury and symptoms arising from the accident
The appellant said that as she was alighting from the ghost train, with Jayden in her arms, the train suddenly went forward, and she "hyperextended back". She heard a "ripping sound" in her back and felt pain there. The appellant had attended the Royal Show with her sister. After the accident they remained at the show for a short period, but the appellant's pain became "increasingly worse" and, in consequence, they went home.
The accident occurred on a Thursday and, at that time, the appellant did not work on Thursday or Friday. She went to work on the following Monday, 8 October 2001, for a short period. The pain in her back had become "increasingly worse" over the weekend. On the Monday she consulted her general medical practitioner, Dr Westhoff. He prescribed Vioxx, an anti‑inflammatory medication, and she did not return to work that week. The appellant consulted Dr Westhoff again, on the Wednesday or Thursday after her initial consultation, as the pain in her back had become "increasingly worse". The anti‑inflammatory medication prescribed by Dr Westhoff did not relieve her symptoms.
In a report dated 26 March 2002, Dr Westhoff described the appellant's condition, as revealed from numerous consultations between 8 October 2001 and 13 March 2002, as follows:
"When first seen, [the appellant] described significant pain with restriction of movement in her lower back Clinically at the time she had substantial tenderness over the L4/5, L5/S1 and also L3/4 vertebral areas with tenderness in her left para‑vertebral region. She had a straight leg raise to 90o bilaterally. A diagnosis of facet joint pain was made at that time, and she was prescribed an anti‑inflammatory medication.
She was reviewed two days later, when [the appellant] described numbness into her left second toe. Clinically, she had decreased sensation at the distal end of her left second toe, but the rest of her foot had normal sensation. She had a decreased straight leg raise bilaterally to 70o and a positive stretch test on the left. Her reflexes were normal at that stage. She continued anti‑inflammatory medication [at] that stage.
She was reviewed on October 16th, when her back symptoms were persisting and her pain now radiated into her left buttock. She also described some numbness into her left lateral foot and described being unable to sit for more than 30 minutes at a time.
Clinically she still had tenderness over her left facets in the L5/S1 region and was asked to continue anti‑inflammatory medication.
She was seen on October 24, 2001, at which time she described some improvement in her back symptoms, but was still in significant pain. She had less leg pain, but was unable to sit for more than 20 minutes at a time. She had some improvement clinically in her straight leg raising to 80o.
She was subsequently seen on November 13, 2001, and described ongoing daily pain. She described that at times the pain was much worse than others and still noted substantial difficulties both with sitting for any prolonged period of time, together with difficulties in being able to pick up her child or perform general household duties. At that time her straight leg raise was normal, with a negative stretch test, and her reflexes were symmetrical bilaterally. She still had marked restriction of flexion and extension of her lumbar spine, with tenderness over her L4/5 facets, worse on the left.
At that time she was prescribed physiotherapy, with daily anti‑inflammatory, but at an increased dose.
[The appellant] was seen again on December 5, 2001, when she described slowly improving back symptoms. She had commenced a gym programme at this stage in an effort to strengthen her back and reduce her symptoms. She continued on the anti‑inflammatory Vioxx.
At review on January 21, 2002, she described a stabilisation of her symptoms in that she still had some substantial problems, but was resolved to continue to try and get better. She found the symptoms were better if she moved around, but still had low back pain. She no longer experienced any pain into her leg.
Clinically at that stage, she had tenderness bilaterally over her sacro‑iliac joints, with tenderness over her left L3/4 and L4/5 region. This pain was worse with extension, and was also noted by the patient to be much worse at work. She still had substantial restrictions of movement of her lumbar spine, but had improved in terms of her ability to flex in her lumbar spine since her first review.
She was seen again on February 12, 2002, when she described resolution of her toe numbness. She had stopped going to the gym and was unable to do all her day to day activities. The pain was, however, persistent in her low back and into her left buttock. She was asked to increase her exercise regime and was seen again on March 13, 2002.
At this time she described still persistent, significant pain. She was unable to sit or walk for more than 20 minutes at a time and had been unable to carry her child for the entire duration of her injury. At this stage, given the recalcitrant nature of her symptoms, she was referred to see a pain specialist."
Dr Gee was the pain specialist to whom Dr Westhoff referred the appellant. Dr Gee initially examined her on 4 April 2002. In a report dated 23 June 2004, Dr Gee described his initial clinical findings in relation to the appellant, as follows:
"She had significant tenderness through her cervical muscles and she was tender over her left greater occipital nerve. I noted at the time that she was experiencing headaches.
Her lumbar assessment revealed localised tenderness over her L5/S1 centrally extending over the left sacroiliac joint. She was also tender through the left buttock particularly in relationship to her piriformis muscle. Her straight leg raise reached 90 degrees without restriction. Her active straight leg raise which was an assessment for sacroiliac joint dysfunction seemed more easily performed on the right. The importance of this related to the potential of her sacroiliac joint to be a source of her pain.
Her neurological assessment at the time revealed normal power and reflexes through her lower limbs. At her initial assessment I referred her to Nola Pericles, physiotherapist with special interest in the assessment for sacroiliac joints. Shortly after [the appellant] had bilateral sacroiliac joint injections. Initially there was some improvement."
The appellant had extensive consultations with Dr Gee in 2002, 2003 and 2004. In October 2002, January 2003, July 2003, January 2004 and April 2004 she had root sleeve injections for her left S1 nerve root. In April 2003 she underwent a left sacroiliac radiofrequency rhizotomy. According to Dr Gee, the appellant's progress was disappointing. She gained short‑term relief for four‑six weeks from the root sleeve injections, but there was no lasting benefit.
In a report dated 22 July 2004, Dr Westhoff summarised the appellant's treatment and progress, as follows:
" … [the appellant] has been treated with various nerve stabilising medications and analgesics. She has tried Tramadol as a pain killer, Epilim as a nerve stabiliser, Nurofen as an anti‑inflammatory and Mersyndol as a pain killer. She has tried non‑medical and non‑interventional techniques such as physiotherapy, together with treatment and assessment by a clinical psychologist, and exercise physiologist.
Throughout this period, I have noted that [the appellant] has done her very best to maintain as high a level of function as possible, and has done her best not to be restricted by her pain. Nevertheless, she regularly experiences severe exacerbations of her pain and frequently, when seen by myself, she demonstrates substantial restriction and tenderness of her spine and para‑spinal areas."
The appellant said in evidence that the injections she received from Dr Gee had minimal effect. They reduced her pain for between two to four weeks, but she was not "totally pain‑free" during those periods. According to the appellant, her pain was of a continuing nature. She described it as follows:
"Where is your pain mainly? Can you describe to her Honour?‑‑‑Yes. It's on my lower left‑hand side of my back. I had it on the right side as well but that - the right side seems to have improved. It's my left side. I get pain going down to my left buttock into my left leg on occasion. Sometimes I have pins and needles at the bottom of my foot, also referring pain going up my back also on the left‑hand side.
Does that pain always remain the same?‑‑‑The severity of it does vary but I'm in a lot of pain constantly every day.
Are there some thing [sic] you do that make it better or worse?‑‑‑Making better would be, if I'm sitting down, walking around would make it better. If it's quite severe I lay [sic] down - try and lay [sic] down to help that.
Were you able, following the accident, to deal with your son as a toddler?‑‑‑Yes, I did. I managed most things but I was doing that in pain."
When the trial occurred, the appellant was still consulting Dr Westhoff in relation to the injury and symptoms arising from the accident, on, usually, a monthly basis. He was prescribing Tramal, a pain medication, and Mertizon, an anti‑depressant. The anti‑depressant was prescribed in consequence of the appellant's depressed mood, which she attributed to her "continual pain". The appellant said in evidence that, in addition to taking the prescribed medication, she endeavoured to relieve her pain by swimming. She added:
"I've tried to do a little bit of exercise and I do walking to try and keep up my fitness."
The appellant was cross‑examined in relation to her capacity to carry out her work at Allianz Insurance. The following exchange occurred:
"Now, Allianz have been a good employer?‑‑‑Yes, very good.
In your job, you have an ability to get up and move around from your workstation?‑‑‑Yes, as much as I can, yes.
If your back is stiff, you have got an ability to get up and move around and free it up?‑‑‑Yes.
It's a paperless office, you don't have heavy files any more?‑‑‑No, I don't.
In terms of your work performance, your symptoms don't affect your ability to perform your work, do they?‑‑‑No, but at times I'm in a lot of pain. I have to take pain medication to get through the day which doesn't always work.
But you are still performing your work satisfactorily, don't you think?‑‑‑Yes. I'm - - -
Professionally?‑‑‑Yes."
Previous incidents affecting the appellant's back
The appellant gave evidence in relation to incidents which occurred some years prior to the accident and which affected her back. The incidents were these:
(a)In approximately 1986 an incident occurred at work which the appellant described as follows:
"I was sitting in my chair. I wheeled my chair back. It got caught in a hole that was in the carpet and my chair tipped over with me on it."
The appellant did not have any sick leave from work as a result of that incident.
(b)In about 1987 the appellant slipped on some steps at the Australia Place building. She suffered some bruising to her back, but did not have any sick leave from work.
(c)Another incident occurred in February 1995. The appellant could not recall the incident, but there was evidence that she injured her lower back while lifting files at work.
(d)In approximately March 1995 the appellant fell in the bathroom at home. She was unable to recall this incident, but there was some evidence that she may have taken sick leave from work for one day.
The expert evidence in relation to the nature of the appellant's injury and the cause of her pain
The medical experts who gave evidence expressed different opinions in relation to the nature of the appellant's injury and the cause of her pain. It is necessary to summarise the relevant evidence.
The appellant underwent an MRI scan of her lumbar spine in July 2002, and again in August 2003. In a letter dated 26 July 2002, Dr McAuliffe, a radiologist, reported to Mr Slinger, in relation to the first scan, as follows:
"Alignment is normal.
L1/2:Normal.
L2/3:Normal.
L3/4:Normal.
L4/5: Disc desiccation is present with minimal loss of disc height. A mild global disc bulge is associated with a small central and right paramedian annular tear. Superimposed upon this is a very shallow broadbased disc protrusion in the right paramedian position. This approaches the axilla of the right L5 nerve root without displacement. The spinal canal dimensions are still within normal limits. The facet joints are normal.
L5/S1: Disc desiccation is present with moderate loss of disc height. A moderate global disc bulge is associated with central annular tear and disc protrusion. This enters the prethecal fat plane and just displaces the axilla of the left S1 nerve root minimally. The facet joints are normal. The foramina are widely patent.
The spinal canal dimensions are normal on the lower thoracic cord, conus medullaris and cauda equina are normal.
Impression: Central disc protrusion at L5/S1 which just touches the axilla of the left S1 nerve root.
Moderate global disc bulge and very shallow broadbased right paramedian disc protrusion at L4/5 without nerve root impingement."
In a letter dated 27 August 2003, Dr Ives, a radiologist, reported to Dr Gee, in relation to the second scan, as follows:
" … The discs above L3 have normal appearances.
The L3/4 disc shows mild desiccation of the nucleus and slight circumferential annulus bulging without impingement on the nerve roots.
The L4/5 disc is mildly narrowed and moderately desiccated. There is a mild broad‑based posterior annulus bulge with a small focal tear. There is only minor indentation on the thecal sac. There is no nerve root impingement.
The L5/S1 disc is narrowed and desiccated. There is a generalised posterior annulus bulge with a mild left posterolateral focal accentuation where there is an annulus tear. There is no significant impingement on the thecal sac or evidence of nerve root compression.
No abnormality is seen in the vertebral structure or marrow signal. Alignment is normal. There is no facet arthropathy. The lower spinal cord and cauda equina appear normal. No paraspinal soft tissue lesion is seen.
Conclusion: Degenerative changes in the lower three lumbar discs, as described. The left lateralised annulus tear and focal accentuation of the disc bulge at L5/S1 may be of symptomatic significance. There is no nerve root compromise."
According to Dr Westhoff:
(a)The appellant "has had predominantly discogenic pain where the actual intravertebral disc between her two vertebrae has been damaged and that has caused ongoing levels of pain".
(b)The appellant suffered a "low velocity injury".
(c)The appellant's condition is permanent.
(d)Prior to 8 October 2001 the appellant had not consulted him in relation to low back pain. The doctor/patient relationship commenced not earlier than 1997 (being the year in which he qualified as a medical practitioner).
(e)It is "possible" that the earlier incidents in relation to the appellant's back could have caused some of her disc desiccation.
(f)The references in the letters reporting on the MRI scans to "disc desiccation" are to degenerative changes in the discs. A large proportion of people of the appellant's age or older suffer from degenerative changes to the spine. Those people do not necessarily develop pain.
(g)It is usually the case that, to some degree, a disc tear will repair itself.
(h)If a person suffers from "pure disc‑related pain" there will usually, but not always, be an improvement over time in the level of pain.
(i)The appellant suffers "moderately severe low back pain of musculo‑skeletal origin".
(j)At least part of the appellant's pain is "facet joint pain".
(k)Facet joint pain usually improves over time, but some people have long‑term chronic pain emanating from facet joints. The appropriate treatment for facet joint pain is as follows:
"The best long‑term cure is time and generally if it's going to heal, it will heal in time. Beyond that, then the options become very limited. Facet joint injections can sometimes provide long‑term relief of pain but not always. If that's not the case, then anti‑inflammatory painkilling medication can … ameliorate the symptoms to a point where people are functional. The most … radical option is a spinal fusion … "
(l)The appellant has remained "as active as possible": Dr Westhoff's report dated 26 March 2002. She has tried "non‑medical and non‑interventional techniques such as physiotherapy, together with treatment and assessment by a clinical psychologist, and [an] exercise physiologist": Dr Westhoff's report dated 22 July 2004.
Medical records referred to in the cross‑examination of Dr Westhoff (but which were not made by him) indicated that in February 1995 the appellant sought treatment after she had "lifted heavy files and felt pain in lower back radiating to left buttock". The records also stated that the pain was "worse on bending down and on coughing or sneezing". Dr Westhoff said that the symptoms of which the appellant complained in February 1995 were in a "similar area" to the location of the symptoms of which she complained after the accident.
According to Mr Slinger:
(a)The accident caused a soft tissue injury to the appellant's lumbar spine and her symptoms of pain.
(b)The accident rendered symptomatic previously asymptomatic changes in her lumbar spine (that is, the degenerative changes or disc desiccation revealed by the MRI scans).
(c)Between July 2001 and 14 October 2004 there was no progress in the appellant's condition in that "her symptoms and situation" when Mr Slinger reviewed her on 14 October 2004 were comparable to those which existed when he saw her in July 2001: Mr Slinger's report dated 6 December 2004.
(d)Her disabilities, as a result of the accident, are permanent.
(e)If the accident had not occurred, the degenerative changes to the appellant's lumbar spine may well have remained asymptomatic.
(f)There is no way of knowing, however, whether, if the accident had not occurred, the appellant would ever have suffered symptoms from the degenerative changes in her lumbar spine.
(g)"It is most unlikely that the accident of 2001 will produce any additional problems in the future or be associated with any premature degenerative change, and whilst there may be progression in that degenerative change in the lumbar spine in the future, that progression, or increase of symptoms in the future, is as a result of the natural history of that condition and not as a direct result of the accident of 2001": Mr Slinger's report dated 6 December 2004.
(h)The earlier incidents suffered by the appellant did not cause or contribute to the disc desiccation or degenerative changes in the appellant's lumbar spine.
(i)In November 2001 the appellant was referred for a gymnasium program which she attended for four weeks. The program included treadmill, fit ball, weights and sit‑ups, but that was not associated with any improvement and she has confined her exercise recently to regularly walking: Mr Slinger's report dated 4 August 2002.
(j)The appellant should exercise in a swimming pool, preferably under supervision. The exercises will be "limited by the potential aggravation produced": Mr Slinger's report dated 6 December 2004.
(k)The importance of exercise was referred to by Mr Slinger in cross‑examination, as follows:
"[Increased mobility] is a sort of treatment to manage her symptoms; not necessarily reduce [her symptomatology] permanently but help her to manage it, to have stronger muscles to support her back better and in so doing, get through the day without so much pain."
(l)Spinal fusion should not be considered in a person of the appellant's age.
(m)The tissues which may be damaged in the type of accident suffered by the appellant are any or all of the muscles, the ligaments, the discs and the joints. The discs are part of the soft tissues.
(n)A disc tear can be caused by:
(i)an incident or injury to the back; or
(ii)degenerative change.
(o)If a disc has a tear it does not necessarily rectify itself, but it is established that acute disc tears can heal.
(p)A disc tear causes backache, but does not, in itself, cause sciatica. If, however, a disc tear is associated with a disc bulge, the disc bulge may cause sciatica if it protrudes beyond the confines of the disc and presses against the adjacent nerve.
(q)Degenerative changes are common in the community, but not all degenerative changes are symptomatic. An incident can render symptomatic a previously asymptomatic degenerative change, and upon being rendered symptomatic the symptoms can last indefinitely.
Mr Slinger examined the appellant on two occasions; first, in July 2001, and secondly, on 14 October 2004.
In a report dated 14 November 2003, Mr Hardcastle asserted:
(a)The accident "most likely resulted in an annular tear and subsequent central disc protrusion at L5/S1. This has aggravated a pre‑existing degenerative condition".
(b)The appellant should undertake "a very light isometric exercise program, particularly for the abdominal muscles and continued use of intermittent medication".
(c)The appellant should be treated with either epidural or nerve sleeve injections and her response to those injections should be assessed.
(d)Surgical treatment was not appropriate at that time.
(e)Generally, disc protrusions improve over a long period of time and reduce in size, but there is a small chance of the protrusions increasing in size.
(f)In the short to medium term, the appellant's symptoms were likely either to remain the same or slowly to improve. It was not possible at that stage to determine her long‑term prognosis.
Mr Hardcastle said in evidence:
(a)He was unable to say whether the disc protrusion was caused by the accident or whether it was attributable to natural degeneration. (This evidence should be compared to and contrasted with Mr Hardcastle's assertion in his report dated 14 November 2003 that the accident "most likely resulted in an annular tear and subsequent disc protrusion at L5/S1" and that this "aggravated a pre‑existing degenerative condition".)
(b)As to the medical records relating to the symptoms experienced by the appellant in February 1995, upon lifting some heavy files:
"That particular presentation is … consistent with a disc tear situation where you bend forward, stretch a degenerate disc, it tears. The nerve root is lying fairly close by so the coughing and sneezing will generally aggravate pain that has been caused by a nerve or one of the bigger nerves. So that's consistent with, say, a disc tear and perhaps even a small … protrusion as well."
(c)He could not anticipate "what's going to happen with [the degeneration which occurred prior to the accident] or her back [generally] over a long period, but in the medium‑term, short‑term, I would expect the symptoms to remain the same, if not get better with a good structured exercise program".
(d)If a disc protrusion gets smaller then the symptoms which it causes should improve. Sometimes a disc protrusion will calcify. He said, in examination‑in‑chief:
"Usually in the long term I think it does calcify in the majority of cases but there is a small percentage of patients where it doesn't and it goes on giving problems, and that's the sort of group that we're looking at doing something more definitive surgically if it's a clinical problem for them."
If the disc calcifies then the disc itself is stabilised and the patient's symptomatology generally decreases.
(e)The degeneration in the appellant's lumbar spine was not "accident‑related", and had existed for "a long time".
(f)He had examined the appellant on one occasion only (on 11 November 2003, which was 13 months prior to the trial), and if other surgeons had seen her more recently then they would be in a better position than him in expressing a prognosis.
(g)Degeneration of the lumbar spine is found in the majority of the population by a certain age.
(h)Degeneration of itself is not indicative of the existence of pain.
As to Dr Marsden:
(a)In a report dated 9 May 2003, Dr Marsden expressed the opinion that the appellant had "a permanent 5% loss of efficient function of her lumbosacral spine due to this jerking strain injury". He added that the appellant needed to "keep herself fit and active as she can" and he was "sure she will very gradually settle".
(b)In a report dated 9 June 2004, Dr Marsden said that the appellant had suffered "a simple jerk strain injury". He also said that he had "significant difficulties with a simple jerk strain of this nature … causing such apparent discomfort or soft tissue injury which could be reasonably … extant two and a half years later".
(c)Dr Marsden said in evidence that the appellant's injury was "probably the lightest, slightest injury that I have seen … in someone … ending up with a long‑term back strain out of it. The physics of it were extraordinarily light".
(d)Dr Marsden gave this evidence in cross‑examination:
"Did you get a history from her … that she felt a ripping sensation in her spine when she jerked backwards?‑‑‑No."
(e)Dr Marsden admitted in cross‑examination that the appellant did not tell him that she "jerked back slightly" when the accident occurred. The word "slight" was his interpretation of the description of the accident which she gave him.
(f)Dr Marsden accepted in cross‑examination that the appellant had a soft tissue injury of an ongoing nature with facetal involvement and, possibly, disc involvement. The relevant question and answer were as follows:
"So do you accept that she has a soft tissue injury of an ongoing nature with disc involvement and facetal involvement?‑‑I'd be happy with the facetal involvement and I think overall, yes, the disc may have been involved as well."
(g)Dr Marsden said in cross‑examination that he was surprised that the appellant had "so much of a problem from simply jerking backwards like that two and a half years ago", but he conceded that he did not doubt that "she has got problems with her back".
(h)Dr Marsden also said in cross‑examination that he was not "one of those doctors who believes that if you settle the claim it will fix their problems". He thought that settlement or resolution of the appellant's claim would reduce her stress and thereby relieve her symptoms, to some extent, but:
"I don't think her back is going to settle down enormously."
(i)He agreed with Mr Slinger that "hyperextension injuries of this nature cause damage".
(j)He disagreed with Mr Hardcastle's statement, in his report, that the mechanisms of the appellant's injury caused a disc tear.
Dr Marsden examined the appellant twice; first, in May 2003 and, secondly, on 8 June 2004.
According to Dr Gee:
(a)The appellant's symptoms were caused by an annular disc tear and a focal accentuation of the disc which were irritating the adjacent S1 nerve root.
(b)The annulus is the rim of a disc. A focal accentuation of a disc refers to an area of the disc which is bulging.
(c)It is "possible" that the appellant's disc tear may have existed prior to the accident.
(d)In his report dated 23 June 2004, the appellant's prognosis was "to experience continuing symptoms" and, "[based] on her current status her condition … is permanent".
(e)There is always the potential for a disc tear to become less symptomatic.
(f)Many people have disc tears, but not all of those people will suffer symptoms.
In his reports, Dr Gee refers to various forms of exercise undertaken by the appellant. His report dated 22 August 2002 mentions that he had requested her to consult an exercise physiologist to obtain details of exercises which she could carry out on a regular basis at home, and notes that she is "clearly motivated to get her physical fitness up and improve her structural muscles". In his report dated 3 October 2002, Dr Gee notes that the appellant was initially "doing hydrotherapy, together with pool activities" and has started "exercise with Guardian". In his report dated 28 November 2002, Dr Gee expresses the opinion that it would be reasonable for the appellant to "continue with … her exercise". His report dated 27 June 2003 states that:
"[The appellant] has clearly lost considerable weight and I am sure that is helping her back, but obviously her back hasn't allowed her to return to an appropriate level of exercise at this stage."
In a report dated 29 January 2004, Dr Gee states that the appellant is "making efforts to increase her activities with walking and swimming".
Mr Brash said in evidence:
(a)The appellant probably suffered a minor soft tissue injury in the accident, but there was no doubt in his mind that "the body … would have been able to deal with that very quickly, within a few short weeks".
(b)He disagreed "entirely and strongly" with Mr Hardcastle's statement, in his report dated 14 November 2003, that the accident caused an annular tear and disc protrusion which aggravated an existing degenerative condition.
(c)An annular tear may cause pain for a short period of time, but cannot cause severe, constant, increasing pain lasting so many years.
(d)A soft tissue injury superimposed on an asymptomatic degenerative condition can render that condition symptomatic, but only for a short period of time.
(e)There was no anatomical cause for the appellant's pain.
(f)He dismissed the view that the disc bulge evident on the MRI scans was probably causing the appellant's symptoms:
"In that case you would have a hundred per cent of people over 50 would all have back pain. I do not agree with that at all, by any means."
(g)He examined the appellant only once, on 29 May 2003 (about 17 ‑ 18 months prior to the trial).
(h)Medical practitioners who had examined the appellant more often had an advantage over him.
(i)He believed that it was open for the learned Judge to find that "litigation is playing a large part in [the appellant's] symptoms".
(j)Pain is an emotion, and there is no doubt that litigation plays a large factor in the reporting of a patient's subjective symptoms.
A review of Mr Brash's evidence, at trial, indicates that he believed the appellant was a malingerer. This is to be compared to, and contrasted with, the following passage in his report dated 29 May 2003:
"I am somewhat at a loss to be precise as to what exactly is the pathology here. It would appear that [the appellant] does have persistent and consistent localised tenderness around the posterior superior iliac spine.
As far as management is concerned I would reassure [the appellant] that there is no significant pathology here. I do believe that she has symptoms here. Quite clearly she has not responded to the passage of time nor the treatment to date. The severity of her pain [4-8 out of 10] is now the same as it was one year ago. The only recommendations I would have would be for her to be:
•Reassured that there is no untoward pathology here.
•That she should increase and maintain a higher level of aerobic fitness …"
In the present case the respondent, in its amended defence, denied that the appellant had suffered pain or injury as a result of the accident. It was also pleaded that if, which was denied, the appellant did suffer pain or injury then it was caused or contributed to by the earlier incidents. Damages were put in issue. Notwithstanding those allegations in the pleadings, however, the appellant's credit was not challenged in the course of the trial. In particular, it was not suggested to the appellant that she had deliberately exaggerated her account of the mechanics of the accident or her symptoms in order to bolster her claim. Further, it was not put to the appellant that she did not inform Dr Marsden (or, for that matter, any of the other experts) that she felt a "ripping" sensation in her back when the accident occurred. The following exchange occurred between the learned Judge and counsel for the respondent during the respondent's closing submissions at trial:
"CLYNE, MR: … my friend has said on a couple of occasions we haven't challenged the plaintiff's credibility or habit [sic].
YEATS DCJ: Beyond suggesting that she doesn’t have pain.
CLYNE, MR: I am not suggesting that she hasn't got pain.
YEATS DCJ: So I have a plaintiff with pain - - -
CLYNE, MR: You have got a plaintiff with pain but we have got a plaintiff whose pain should get better. The level of pain is as described by her. That is subjective, but you are entitled to look at the conflicting medical evidence in respect of that, and many of the doctors - our doctors, certainly - say that the pain ought not be constant. The fact that she has described fluctuating periods to some doctors is a good prognostic indicator. Dr Marsden and, I think, Mr Hardcastle said that. So she has had pain until now, but you also have to look at the other factors that I will come to in a moment, if I can."
The substance of those oral submissions by the respondent were reflected in its written outline of submissions at trial. For example, in par 7 of the written submissions, it is said:
"The [respondent] recognises that the symptoms from those prior injuries abated and whilst the present symptomology [sic] has been more protracted, there is the very real potential that these symptoms may also abate."
In par 20 of the written submissions, reference is made to "the difficulty in knowing just what is the cause of the present pain state".
In my opinion, in the present case, the observations of Mason P in Davis v Council of the City of Wagga Wagga are in point and those of Bray CJ in Thomas v van den Yssel are to be distinguished. First, the parties conducted the trial on the basis that the appellant's credit in relation to her account of the accident and her symptoms was not in dispute. As counsel for the respondent said, in his closing submissions, the level of the appellant's pain "is as described by her". See also the respondent's written submissions in closing which I have mentioned. Counsel for the respondent's cross‑examination of the appellant, and the expert witnesses which she called, was consistent with the appellant's credit in relation to those matters not being in dispute. Secondly, the evidence of Dr Marsden was not used by the learned Judge merely to discount the opinions of any experts who may have relied on the appellant's account of the accident and her symptoms, but for impeaching the appellant's credit generally in relation to her account of those matters. Thirdly, and in any event, her Honour should have determined for herself, on the evidence, whether the appellant was deliberately giving false evidence, and not accepted the view of an expert witness, Mr Brash, on the point (who adopted an extreme position, compared with the other experts, in relation to the diagnosis, assessment and prognosis of the appellant's injury and symptoms).
In my opinion, in the circumstances of the trial which I have described, it was not fairly open to the learned Judge, on the basis of Dr Marsden's evidence as to the history which the appellant gave him and of Mr Brash's opinion, to conclude that the appellant had deliberately exaggerated her account of the mechanics of the accident and her symptoms. Her Honour's reasons do not record any other basis for impeaching the appellant's credit.
I should refer to the principle in Watts v Rake (1960) 108 CLR 158 as explained in Purkess v Crittenden (1965) 114 CLR 164. In Watts, the plaintiff sued the defendant for damages for injuries he suffered in a motor vehicle accident caused by the defendant's negligence. The plaintiff suffered from a pre‑existing condition. The trial judge determined that the injuries which the plaintiff suffered in the accident had accelerated the development of the pre‑existing condition and that the pre‑existing condition would, in any event, have caused a deterioration in the plaintiff's condition. The trial judge held that the award of damages should, in consequence, be reduced. In the High Court, Menzies J (with whom Dixon CJ and Windeyer J agreed) said, at 163 ‑ 164:
"It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health. Such a case is not unlike that of a defendant in a defamation action proving in reduction of damages that the plaintiff had a bad reputation. It should also be observed that a negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling--e.g., the loss of an only eye--does not mean that damages are not to be assessed according to the circumstances of the particular case."
In Purkess, Barwick CJ, Kitto and Taylor JJ explained, at 168, that the statement of Menzies J in Watts that "it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post‑accident state of health" must be understood as referring merely to an evidential onus. Their Honours said:
"We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre‑existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre‑existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."
See also the observations of Windeyer J at 171 ‑ 172.
In Commonwealth of Australia v Elliott [2004] NSWCA 360, Giles JA, (with whom Hodgson and Tobias JJA agreed) referred to Watts and Purkess, and said, at [81], that the observations in those authorities must be reconciled with an allowance for contingencies, including the contingencies of accident and ill health, in the assessment of damages. After referring to the principles discussed in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, his Honour said:
"If a contingency is known to be greater than normal, that should be taken into account. Applied to allowing for contingencies, the appellant's [defendant's] evidential burden required that it lead evidence capable of establishing the respondent's [plaintiff's] pre‑existing condition and that its ordinary progression and impact may have brought or may yet bring his incapacity. Thus in Wilson v Peisley (1975) 50 ALJR 207, Barwick CJ said (at 209) that there was no Watts v Rake question because "[t]he existence of pre‑existing condition and of its propensity for harm to the plaintiff was fully made out."
The learned Judge, in the present case, referred to Watts and Purkess, at [38], and noted:
" … this is not a case where the defendant suggests that the plaintiff's incapacity was wholly or partly the result of her pre‑existing back condition. Instead of that the defendant suggests that the evidence shows advanced disc degeneration in the plaintiff's lower spine at L4/5 and L5/S1 … and the defendant suggests that such disc degeneration can be taken into account as an adverse contingency when assessing loss of earning capacity."
Appeal: did the learned Judge err, as alleged, in her findings as to the extent to which the appellant's injury has diminished or otherwise adversely affected her past and future earning capacity (including her capacity to work full‑time in her existing employment)?
The learned Judge made findings of fact in relation to the appellant's past earning capacity, as follows:
(a)Her Honour found, at [32], that a number of expert witnesses considered "the [appellant] capable of working full‑time". Certainly, Mr Hardcastle and Mr Brash gave evidence to that effect. However, Dr Westhoff, Mr Slinger, Dr Marsden and Dr Gee disagreed.
(b)Her Honour found, at [35], that "[the appellant] is capable of full‑time employment but subject to her maternal commitments" and that those "maternal commitments will, of course, lessen as Jayden commences school". This finding was said to be based on Mr Hardcastle's evidence.
(c)Her Honour found, at [36], that the back pain experienced by the appellant "would have made it more difficult for her to juggle a full‑time job with her other responsibilities as a mother raising an active small son" and in consequence she awarded damages for past loss of earning capacity based on "[the appellant] returning to part‑time duties on 1 October 2002 after an attempt at full‑time duties from 1 April 2002".
The learned Judge referred, at [42], to the prospect that the appellant's advanced disc degeneration at L4/5 and L5/S1 "would have limited her employment in any event if she had not been injured in the accident". Her Honour accepted that there was a risk of this occurring and that it should be taken into account as an adverse contingency. After referring to other contingencies, her Honour concluded, at [47], that, after taking all contingencies (both adverse and favourable) into account, the award of damages for past loss of earning capacity should be reduced by 7 per cent.
The learned Judge made findings of fact in relation to the appellant's future earning capacity, as follows:
(a)Her Honour found, at [51], purportedly in reliance on Mr Hardcastle's opinion, that, "subject to her maternal commitments, the [appellant] is capable of full‑time employment despite her back injury".
(b)Her Honour awarded the appellant damages for future loss of earning capacity "based on another three years of part‑time work". She said, at [52], that by that time Jayden will be nine years old and she expected "[the appellant's] back symptoms will have improved and her maternal commitments will have diminished to the point where she will have regained her pre‑accident full‑time earning capacity".
The learned Judge reduced the award of damages for future loss of earning capacity by 7 per cent for contingencies, but, as I have mentioned, her Honour found that at the expiration of three years after the trial the appellant "will have regained her pre‑accident full‑time earning capacity".
The learned Judge's findings in relation to the appellant's claim for past and future loss of earning capacity depended on:
(a)her finding that the symptoms arising from the injury caused by the accident were not permanent;
(b)Mr Hardcastle's opinion that the appellant was fit for full‑time work; and
(c)her adverse findings in relation to the appellant's credit.
If those findings were not reasonably open, then her Honour's determination of that part of the appellant's claim cannot be sustained.
Mr Hardcastle examined the appellant once, approximately 13 months before the trial. At that time he was unable to form a view as to her long‑term prognosis. Similarly, at trial, Mr Hardcastle said he could not anticipate the appellant's prognosis over a long period. His view in relation to the appellant's short to medium‑term prospects were, in substance, that she was likely either to remain the same or slowly to improve. Mr Hardcastle's opinion appears to have been that, despite the symptoms of which the appellant complained, she was capable of full‑time work. Mr Hardcastle's opinion, in his report dated 8 April 2004, as explained in his report dated 22 April 2004, was that:
" … [the appellant's] present part‑time work duties combined with the out‑of‑work activities [including her maternal commitments] … give her no opportunity to work on a full‑time basis. In my opinion, she has not been compromised for full‑time work by the injury sustained on 4 October 2001, but she does have maternal commitments which she must keep." [emphasis added]
Plainly, therefore, Mr Hardcastle's opinion was that the appellant had the "capacity" for full‑time work, but did not have the "opportunity" to work full‑time in consequence of her maternal and other out‑of‑work commitments and activities.
The learned Judge did not accept Mr Hardcastle's evidence in this respect in that she awarded the appellant damages for past loss of earning capacity and also damages for future loss of earning capacity in respect of a three‑year period after trial. The basis for those awards was her Honour's finding that the appellant's symptoms, arising from the injury caused by the accident, had compromised her capacity both to work full‑time and discharge her maternal commitments.
As to the findings, referred to in par 165 above, which underpin the learned Judge's determination of the appellant's claim for past and future loss of earning capacity:
(a)In my opinion, it was not reasonably open to her Honour to find that the symptoms arising from the injury caused by the accident were not permanent. As I have mentioned in pars 136 and 142 above, subject to any adverse findings that were reasonably open to her Honour in relation to the appellant's credibility, the only conclusions reasonably open to the learned Judge, on the evidence, were that:
(i)if the appellant undertakes, on an ongoing basis, an exercise programme of the kind recommended by Mr Hardcastle and Mr Slinger, her symptoms should be relieved to some extent, and, in that sense, her condition should improve; and
(ii)otherwise, it is more probable than not that the appellant's condition is permanent.
(b)In my opinion, her Honour did not accept Mr Hardcastle's opinion that the appellant was fit for full‑time work. If her Honour had accepted Mr Hardcastle's opinion, she would not have made any award for future loss of earning capacity and would have made a more limited award for past loss of earning capacity. Mr Hardcastle's opinion was that the appellant had the capacity for full‑time work, but did not have the opportunity to work full‑time.
(c)As I have mentioned in par 157 above, in the circumstances of the trial which I have described, it was not fairly open to her Honour, based on the matters she mentioned, to find that the appellant was an unreliable witness.
I am therefore of the opinion that the learned Judge's findings, on which her determination of the appellant's claim for past and future loss of earning capacity was based, were not reasonably open. It follows that her Honour's determination of that part of the appellant's claim cannot be sustained.
Appeal: did the learned Judge err, as alleged, in her award for:
(a) past and future loss of earning capacity (including past and future loss of superannuation benefits)?
(b) past and future gratuitous services?
(c) general damages for pain and suffering and loss of amenity of life?
(d) future medical expenses?
In my opinion, the errors which I have identified in the learned Judge's reasons affected, to a significant extent, her assessment of the appellant's claim for future loss of earning capacity (including future loss of superannuation benefits), future gratuitous services, general damages for pain and suffering and loss of amenity of life, and future medical expenses.
I agree with McLure JA's analysis and conclusions relating to the challenges made to the award of past loss of earning capacity (including past loss of superannuation benefits).
I also agree with McLure JA, for the reasons she gives, that the appellant's challenge to the learned Judge's award for past gratuitous services should not succeed.
The errors which McLure JA and I have found in the learned Judge's reasons require that her award of damages for past loss of earning capacity and interest thereon, past loss of superannuation benefits, future loss of earning capacity and interest thereon, future loss of superannuation benefits, future gratuitous services, general damages for pain and suffering and loss of amenity of life, and future medical expenses, be set aside.
Should there be a retrial or is this Court able to reassess the appellant's damages?
The critical issue, in relation to those components of the learned Judge's award of damages which should be set aside, is whether, by reason of:
(a)the frequency, duration and degree of the appellant's symptoms arising from the injury she sustained on 4 October 2001; and
(b)the means available to her, by medication and exercise, to relieve those symptoms,
her capacity to work on a full‑time basis has been compromised or adversely affected, and, if so:
(i)the probable duration of her incapacity; and
(ii)the extent to which, if at all, provision should be made for the possibility that, in the future, her condition may improve or deteriorate.
I agree with McLure JA, for the reasons she gives, that, in the unusual circumstances of the present case, the critical issue I have just mentioned, and related issues, may be determined by this Court. I also agree with the manner in which McLure JA has reassessed the appellant's damages and the amount of those damages (both the total award and its individual components).
Cross‑appeal: did the learned Judge err in her award for past and future gratuitous services?
The learned Judge awarded the appellant $7,222 in respect of past and future gratuitous services and interest on past gratuitous services.
Her Honour's award for gratuitous services included an allowance for the reasonable cost of services required for the appellant's family which the appellant had previously provided, but was unable to continue to provide in consequence of the injury caused by the accident. The authorities relied on by her Honour included Sullivan v Gordon (1999) 47 NSWLR 319 and Thomas v Kula [2001] WASCA 362.
In CSR Ltd v Eddy (2005) 80 ALJR 59, the High Court held that the rule in Sullivan v Gordon was not part of the common law in Australia. Where a personal injury prevents a plaintiff from providing gratuitous personal or domestic services for another person, the damages recoverable cannot include an amount calculated by reference to the commercial value of the services. The High Court overruled Sullivan v Gordon and all Australian cases supporting the rule in that case including Thomas v Kula.
The learned Judge did not distinguish between services required by the appellant for herself on the one hand, and services required for her family on the other. Her Honour awarded damages for the reasonable cost of past and future gratuitous services on the basis of a need for one and a half hours per week of assistance. I am not satisfied that the damages awarded by her Honour, on this part of the appellant's claim, were excessive, even if, as the decision in CSR Ltd v Eddy requires, the damages are calculated solely by reference to the reasonable cost of one and a half hours per week of assistance for services which the appellant (as distinct from her family) required prior to trial and will require for some period after trial in consequence of the injury caused by the accident.
I would dismiss the cross‑appeal.
Summary
In my opinion, the appeal should be allowed, and the cross‑appeal dismissed. Counsel should be heard as to the calculation of the substitute award of damages, including its individual components, in accordance with McLure JA's reasons.
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
Legal Concepts
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Appeal
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Assessment of damages for personal injuries
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Admissibility of Evidence
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Expert Evidence
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Compensatory Damages
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