Butcher v Australian Tartaric Products Pty Ltd

[2009] VSCA 303

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3856 of 2008

DAVID BUTCHER	Appellant
	v
AUSTRALIAN TARTARIC PRODUCTS PTY LTD	Respondent

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JUDGES	BUCHANAN, ASHLEY and WEINBERG JJA
WHERE HELD	MILDURA
DATE OF HEARING	7 May 2009
DATE OF JUDGMENT	18 December 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 303
JUDGMENT APPEALED FROM	Cummins J (Judgment in accordance with jury verdict, 8 September 2008)

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Courts – Damages – Personal injury – Damages for pain and suffering and pecuniary loss – Whether jury assessment manifestly inadequate – Appeal allowed – Matter remitted for re-trial.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T J Casey QC with Mr A Keogh SC	Ryan Legal
For the Respondent	Mr J Ruskin QC with Mr J P Gorton	Hall and Wilcox

BUCHANAN JA:

1. I agree with Ashley JA, for the reasons he has stated, that the appeal should be allowed and the proceeding retried.

ASHLEY JA:

1. The appellant, David Butcher, brought a proceeding for damages for personal injuries against his former employer, Australian Tartaric Products Pty Ltd (‘Tartaric’).  He relied upon an incident which had occurred at his workplace on 24 November 2003.  At trial in the Supreme Court at Mildura in 2008, it was admitted by Tartaric that the incident had occurred and that the appellant had suffered injury in consequence.  The live issue was the quantum of damages. 

1. The trial was by judge and jury. In answer to questions, the jury assessed pain and suffering damages at $80,000 and pecuniary loss damages at $200,000. The jury was obliged to answer separate questions because of s 134AB(22), (25) and (26) of the Accident Compensation Act 1985 (‘the Act’); and the judge was obliged to enter separate judgment in respect of the two kinds of damages. The judge did so, taking account of weekly payments of compensation, and allowing interest. In the event, on 8 September 2008 he entered judgment for $80,000 pain and suffering damages and $154,050 for pecuniary loss damages. The consequence of a statutory offer made by the Victorian WorkCover Authority was, by operation of s 134AB(28)(c) of the Act, that the appellant was ordered to pay the respondent’s costs, including reserved costs.

Grounds of appeal

1. Now the plaintiff appeals.  He relies upon the following grounds:

1.The verdict of the jury on the claim for pain and suffering damages was manifestly inadequate, contrary to the evidence and the weight of the evidence.

2.The verdict of the jury on the claim for pecuniary loss damages was

manifestly inadequate, contrary to the evidence and the weight of the evidence.

3.Assuming that the jury accepted the evidence that following the Appellant’s suffering of the lower back injury he remained capable of performing light duties the Respondent failed to produce evidence of the earnings that the Appellant might have been capable of earning in such occupations.

4.It was not open to the jury to accept and act upon the submissions of counsel for the Respondent that the claims for past loss of wages and impairment of future earning capacity could be assessed in money terms by reducing the amount of the wages that he might have earned in full-time employment with the Respondent by 50 per cent, because:

a)there was no evidence that permanent light work was available and would have been offered to the Appellant by the Respondent;

b)there was no evidence that the wages that might have been earned by the Appellant in permanent light work in other employment would be the equal of 50 per cent of the wages which he would have earned in the full-time employment of the Respondent.

5.It was not open to the jury to accept and act upon the submissions of counsel for the Respondent that the evidence of the actuary Mr Sarjeant that it was likely that employer funded superannuation would yield a net profit of 9 per cent per annum should be rejected in the absence of any evidence to the contrary or that such evidence was obviously implausible.

6.It was not open to the jury to assess the damages on the basis that any lower back injury suffered by the Appellant in June 2003 in the course of his employment caused the injury to the appellant’s L4/5 and L5/S1 discs identified by the MRI scan in March 2005 and the lumbar discogram of April 2006.

7.Whilst it was open to the jury to accept and act upon the opinion of Mr Dooley that in the incident of 24 November 2003 the injury suffered by the Appellant was an aggravation of pre-existing degenerative disease in the L4/5 and L5/S1 discs which had caused some prior lower back symptom, it was not open to the jury to then reject his opinion that the aggravation caused consistent intermittent back pain which prevented him from performing heavy manual work and, in particular, the work required of him in his occupation with the Respondent.

8.Assuming that the jury accepted and acted upon the opinions of Mr Dooley it was not open to it to reject his evidence that the Appellant’s residual capacity for employment was significantly restricted and it would be difficult for him to obtain employment suited to his restrictions.

9.It was not open to the jury to accept the unqualified opinion of Dr Brown as to the Appellant’s residual earning capacity as that opinion was based upon facts demonstrated to be erroneous.

Principles, manifest inadequacy of jury verdict

1. Grounds 1 and 2 essentially contend that the jury’s award of damages, both in respect of pain and suffering and pecuniary loss, was manifestly inadequate.  The trial having been by jury, an appellant’s task in making out those grounds is difficult.[1]  That is not in doubt.  So, it has been said that an appellant must show that the jury’s answer to a question was such ‘that no reasonable jury could have given’;  that such decisions can only be disturbed ‘in an extreme case … [where they are] unreasonable’;  and that ‘the occasions for judicial correction of jury verdicts will be extremely rare.’[2]  Although, as Kirby J observed in JohnFairfax Publications Pty Ltd v Rivkin,[3] the respect accorded by an appellate court to a jury verdict does not mean that rational analysis of the verdict is precluded, and there must be ‘a proper and effective’ appeal, ‘not a procedure that is perfunctory and merely symbolic’,[4] his Honour nonetheless stated that:

The difficulty of establishing the requisite error in the case of a jury, which gives no reasons, is a practical consideration that limits intervention to an ‘extreme’ or ‘manifest’ or ‘inevitable’ case that is ‘clear and beyond argument’.[5]

[1]Hocking v Bell (1945) 71 CLR 430, 440 (Latham CJ); John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657.

[2]John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, 1658 [2] (Gleeson CJ), 1675 [112] (Kirby J), 1677 [119] (Kirby J), 1698 [183] (Callinan J).

[3]Ibid.

[4]Ibid 1676 [116].

[5]Ibid 1677 [119], (citation omitted).

1. His Honour summarised the position this way:

I am very mindful of what this Court and the Privy Council said in Hocking v Bell, concerning appellate review of jury verdicts.  In this Court, the case is often referred to, and given effect.  But neither Hocking v Bell, nor any decision since of which I am aware, obliges an appellate court, performing its function of deciding an appeal from a verdict of a civil jury, to defer to the jury decision if there is the merest scintilla of evidence to support that decision.  This is a common misreading of Hocking v Bell.  It must be removed from legal thinking.

In every case it remains for the appellate court to subject the jury verdict to analysis, allowing for difficulties inherent in the absence of reasons and in circumstances  where only limited means are available to decide how the jury may have reached their  conclusion.  Nevertheless, the touchstone is – and should be – one of reasonableness.  Nothing else would coincide with judicial authority.  Nothing else would fit with the appellate court’s duty as a receptacle of statutory power.  Reasonableness, rationality and fair process lie at the very heart of our legal system.  There is no need to apologise for them, or to dispose of them, in deference to fictious or absolute notions or a blind faith in finality of legal process that has clearly miscarried.

The position was explained by McHugh J in Fox v Percy in language that I would adopt, word for word, for application in this case:

‘Juries give no reasons.  Because that is so, appellate courts must act on the basis that the jury took that view of the evidence that was reasonably open to them and is consistent with their verdict.  Nevertheless, in some cases no reasonable view of the evidence can support the verdict.  In those cases the appellate court may intervene to set aside the verdict.’[6]

[6]Ibid 1682, [150]-[152], (citations omitted). Emphasis in the original text.

1. Counsel for the appellant relied particularly upon the last-cited passage.  But nothing which Kirby J there said was at odds, in my opinion, with the long line of authorities which began with Hocking v Bell.  The passage should not be understood as lowering the bar.  Rather, his Honour was simply emphasising that reluctance to interfere with a civil jury verdict, in part explicable by the jury’s ‘constitutional’ role, and in part by its giving no reasons, is not an excuse for an appeal court failing to undertake a real appeal.

1. Consideration of the direct evidence and available inferences to determine whether ‘the damages are so large or so small as to be unreasonable – so excessive or so inadequate that no jury could reasonably have awarded them, or out of all proportion to the circumstances of the case’,[7] taking a view of the evidence most favourable to the respondent to the appeal[8] - requires careful analysis of the evidence, as exemplified by decisions of this Court.[9] 

   [7]Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, 369 (Gibbs J).

   [8]See, eg Progress and Properties Ltd v Craft (1976) 135 CLR 651, 672 (Jacobs J), and Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 878 [64] (Kirby J); see the application of a like principle in cases where the damages awarded are claimed to be unreasonably large: Coulahan v Clissold [2000] VSCA 196 [22] (Charles JA).

   [9]See, for example Downes v Pearce [2001] VSCA 10 where an analysis of the evidence by Charles JA led to his Honour’s conclusion that a body of evidence relating to psychiatric rather than physical injury must have been disregarded for no justifiable reason; Abdul- Massihv Abdul- Massih [2001] VSCA 231, where the jury verdict was only compatible with the jury acting upon one or other of two factual bases, neither of which was reasonably open on the evidence; and Kanja v Dynamic Engineering Construction Co Pty Ltd [2007] VSCA 307, where a careful review of the evidence by Kellam JA, in the context of the required approach which his Honour identified at [62]-[63], culminated in his Honour’s conclusions at [67]-[69].

The areas of dispute at trial

1. In large measure, the facts of the matter were not in dispute.  The areas of dispute were confined.  The challenge to the appellant’s case was principally that – (1) his credibility was adversely affected, for which reason his evidence as to the extent of his pain and suffering and the impact of his injury upon his ability to work should not be accepted;  (2) the preferable view of the medical evidence was that he had suffered an aggravation of pre-existing spinal degeneration such as would give rise to intermittent pain only;  (3) he had an uninspiring work record and had not tried hard to get work in the period since injury in November 2003, for which reasons his pecuniary loss damages should be much less than he contended for.  Of each of these matters, more later.

Matters not in dispute

1. It is convenient to describe matters about which there was no dispute before going to the areas of controversy.

1. The appellant was born on 3 September 1967.  In November 2003 he was thus aged 36, and when the jury returned its verdict he was 41.

1. The appellant commenced a friendship with Belinda Downes some six to eight weeks before the November 2003 incident.  They began to have sexual relations after about five to six weeks.  Their friendship continued and, in about August or September 2005, they began to live together.  A child was born on 12 March 2006.

1. The appellant was educated to Form 10.  He was always a manual worker.  He had a number of competency ‘tickets’.  They all pertained to manual work.  He had no clerical or computer skills.

1. The appellant commenced employment with the respondent as a plant operator in September 2002.  His work was manual, and often strenuous - carrying bagged product to pallets, moving pallets of product, moving pumps and hoses, frequent climbing, bending and twisting, and shovel work.  He worked rotating day and night shifts of 12 hours’ duration.

1. The appellant reported back pain in response to work on 26 June 2003.  He was a few days off work.  In a claim form which he signed on 18 August 2003 he stated ‘getting better.  Still sore at times.’  He resumed heavy work.  In August 2003 he attended a general practitioner three times for other reasons.  He made no complaint about his back. 

1. By reason of his employer’s negligence (which was admitted shortly before trial), the appellant suffered compensable low back injury in November 2003 when he attempted to pull and manoeuvre a heavily loaded trolley jack.  The injury was either frank disc injury at the L4/5 and L5/S1 levels, or aggravation of pre-existing disc degeneration at those levels.  Of this, more later.

1. Following injury on 24 November 2003, the appellant was off work until March 2004.

1. The appellant resumed employment with the respondent between March and September, working at most four days of eight hours.  Before injury in November 2003, the appellant had worked 12 hour rotating shifts, four days on then four days off.

1. In September 2004 the appellant took an $8,000 redundancy package.  He had no employment thereafter until trial, although he made some job applications.  Other than that, he began a TAFE course in occupational health and safety in 2005, later discontinued it, resumed it in March 2008, but discontinued it again before trial.

1. The appellant’s work history, as reflected by his tax returns for the financial year 1999/2000 onwards, was as follows:  In 1999/2000 his gross income was $14,257.  In 2000/2001 his income was $9,106 by way of Social Security payments.  In 2001/2002 his income was $24,681, of which $6,530 was by way of social security payments.  In the year ended 30 June 2003 – which included his employment with the respondent beginning in September 2002 – his gross income was $38,902.  It included social security payments of $1,311.  For completeness, I refer to the year ending 30 June 2004, during a substantial part of which the appellant was off work or working reduced hours (although, no doubt, he received accident compensation and make-up pay).  His gross income was $43,450. 

1. The appellant’s actual earnings in the respondent’s employment as at November 2003, and the amount which he would have been earning if still employed by the respondent at time of trial were certain.  As at November 2003 the amount was $685 net per week.  As at August 2008 it would have been  $732 net.

1. Six per cent multipliers were admitted:  599.5 to age 60 and 674.3 to age 65.

1. Between 13 April 2005 and 21 August 2008 the appellant was placed under observation by investigators on 34 occasions for a total of nearly 196 hours.  The observations yielded about 38 minutes of film.[10]  It was the product of filming on some ten occasions in the period of more than three years.  The closest estimate I can make is that it consisted of -

   ·    4 minutes and 9 seconds recorded on 12 and 13 April 2005.

   ·    2 minutes and 11 seconds recorded on 18 April 2007.

   ·    30 seconds recorded on 3 May 2007.

   ·    4 minutes and 30 seconds recorded in May 2008.

   ·    44 seconds recorded in July 2008.

   ·    25 minutes and 35 seconds recorded on 18, 19, 20 and 21 August 2008.

   [10]It was said at trial to be about 48 minutes.  But that does not accord with the actual playing time.  In any event, very little would turn on the difference.

2. No investigator was called to give evidence of any other observations made of the appellant.  The surveillance log was, however, tendered in evidence by the appellant.  It showed, inter alia, that –

   ·    On some occasions, in respect of which no film was recorded, the appellant was under observation for more than 10 hours.

   ·    On 12 and 13 April 2005, 4 minutes and 9 seconds of film being recorded, the appellant was under observation for a total of 11 ½ hours.

   ·    On 3 May 2007, 30 seconds of film being recorded, the appellant was  under observation for 9 ½ hours.

   ·    In the period 18 to 21 August 2008, 25 minutes and 35 seconds of film being recorded, the appellant was under observation for a total of 21 hours.

3. The film was shown to the appellant in cross-examination, and thus to the jury.

1. The appellant called as witnesses a number of doctors, a general practitioner, a physiotherapist and several occupational therapists. In particular, he called three orthopaedic specialists,[11] and a general surgeon specialising in trauma surgery.[12]  Counsel for the respondent, who relied upon the films, did not show any of them to any of the doctors called for the appellant, with a view of suggesting to the witnesses that the appellant’s disabilities were less than they opined.  Nor, it can be inferred, were the two doctors called for the respondent shown the films.  Certainly, neither of them said anything to suggest that they had seen the films.

   [11]Mr Brian Barrett, Mr Kevin King and Mr Russell Miller.

   [12]Mr Kenneth Brearley.

Areas of dispute; the appellant’s evidence          

1. I should refer in some detail to the evidence-in-chief and cross-examination of the appellant.  The former set the framework for his case and the latter was particularly relied upon by the respondent as providing an explanation why the jury rationally arrived at the answers which it gave to the two questions submitted for its consideration.

1. The appellant gave evidence that immediately after the straining incident on 24 November 2003 he felt pain in his low back and down his left leg.  It was pain at a high level.  He could not complete his shift.  He was driven to the Mildura Base Hospital, was x-rayed and was told to see his general practitioner.  He did so, the next day.  He was given injections.  A diagnosis was made of muscle damage.  He was referred for physiotherapy.  Later, his doctor arranged for a CT scan to be done.  The diagnosis was affirmed.  His pain was in the low back and, mainly, the left leg.  When it was bad, it went down the right leg as well.

1. The appellant further gave evidence that he had returned to work in March 2004 on reduced hours and different duties.  He continued to have back and leg pain.  He earned less.  Sometimes he did not have enough money to buy petrol, and so he missed work.

1. After a week off work in June 2004, when the factory temporarily closed, he returned to work.  But his back pain was getting worse, and his hours of work were scaled back.  He took a redundancy package of $8,000 in September 2004 because he could not cope with his work and because he could not live on his reduced wages.

1. In March 2005, said the appellant, he was referred to the orthopaedic surgeon, Mr Barrett.  An MRI was performed.  The doctor told him that the damage was not muscular (this had been the opinion of the appellant’s general practitioner), and that exercise and losing weight would not help.  Surgery, he was told, was an option.

1. Then, in April 2006, he underwent a discogram.  It was very painful, and it reproduced his back and left leg pain.  Mr Barrett told him that he had ruptured two discs in his spine, and that there were two options: (1) surgery, without guarantee of success, and with the risk that the situation could finish up worse; (2) using painkillers and living with the pain.  The appellant said that he discussed these options with his partner, Ms Downes.

1. In September 2006, said the appellant, he was referred to another surgeon for a second opinion.  Another MRI was performed, and the surgeon confirmed the two options.  He recommended that the appellant not undergo surgery, and he explained why he made that recommendation.  The appellant accepted it.

1. The appellant further stated that he had continued with conservative treatment:  ‘a bit of hydrotherapy’ in warmer weather,[13] walking and medication.  At time of trial he was  taking a morphine-based painkiller.  It took the edge off his pain.  He was also taking antidepressants, a drug for nausea, and many over-the-counter painkillers.  He suffered pain each day.  It varied from being niggling to being so severe that he was laid up.  Sometimes he required Ms Downes’ assistance to shower and put on his socks and shoes.  He could do few domestic chores, and less and less with his growing son.

   [13]Consistently with that evidence, he said in cross-examination that he had last undertaken hydrotherapy about eight months before trial.

1. With respect to inhibitions on work because of his physical restrictions, the appellant stated that he did not think his injury would permit him to work as a salesman, driver, or farm labourer, because he could not manage lifting, bending, climbing into and out of trucks, or sustained sitting or standing.  He could not assure an employer that he would be fit to turn up for work.  He was unsure about his working life, and would need assistance to get a job.  But for his injury, he would have worked to age 65.

Earlier injury

1. Cross-examined, the appellant was asked about his state of health before November 2003.  He said that he had suffered a couple of muscle strains affecting his neck and shoulders when he was younger.  He had not, before November 2003, injured his lumbar spine so as to cause major pain.  He had suffered a fall whilst driving buses which had caused some lumbar pain, and there had been minor sprains in the lower back.

1. The appellant was then questioned specifically about the work incident in June 2003 to which I have referred already.  The simple facts are that the appellant did report an incident affecting his back, did have a few days off work, did attend a doctor, did resume his normal heavy work, did not complain to his general practitioner in August 2003 of any continuing problem, and did say in the claim form which he signed on 18 August 2003 that his injury was ‘getting better’ although it was ‘still sore at times’.

1. The point of the cross-examination, however, was to suggest that the appellant had concealed the occurrence of the incident, had minimised its significance, and had misstated the area of his back which was affected.  His evidence in chief was contrasted with the August 2003 claim form, particularly with respect to the area of his back which he had injured in June 2003.  Further, recourse to a claim form which he signed on 3 December 2003 in relation to the November  incident showed that he had been wrong in saying that he went to hospital after that incident.  He had done so after the June  event.

1. On the second day of cross-examination, the appellant stated that he had made enquiries at the Medical Centre, and had confirmed that he attended the hospital for x-rays after the June rather than the November  incident.  But he continued to assert, notwithstanding that the Mildura Base Hospital records revealed a history which was interpreted by nurses as one of ‘pain mostly in lumbar area’, and that the ‘lower lumber (sic) region’ was affected, that the June incident had affected an area in his back higher than the area affected by the November incident.

The extent of medical treatment

1. The appellant was cross-examined to emphasise what he had said in examination in chief, that is, that his ongoing treatment – the prospect of surgery having been abandoned – was medication, walking, and hydrotherapy;  the last-mentioned only in the warmer weather.

Desire and ability to work

1. The appellant was cross-examined about what attempts he had made to get work, and about his motivation for work.  The thrust of the cross-examination was to suggest that he was content to live on social security payments.  He agreed that at a vocational assessment in October 2004 he had said that he was not interested in some jobs suggested because the pay scales were too low.  They were, he said ‘two or three hundred dollars a week jobs and [involved] lifting, bending and everything else which I couldn’t do’.  He gave an explanation why he had not pursued the TAFE occupational health and safety course to completion.  He stated that he had applied for probably 20 jobs in the last two to three years, but that no job offers had been made.  He said that he had tried for part-time jobs, but that no-one would employ him because of his back injury.  It was put to him that he had, on his account, applied for jobs that (he considered) would be physically beyond him.  His response was that he would have taken any job offered, provided that he passed the employer’s physical examination;  and that he had applied for (unsuitable) jobs because he was frustrated, and wanted to get out and earn money.  Asked about his earlier statement to a vocational assessor that he had good communications skills, he replied that he did not have them now.  He was, he said, ‘very depressed, very angry, and [felt] worthless’.  He had, he said, managed  a few new mine workers in the past.

Day to day activities

1. Concerning his day to day activities, the appellant stated that once or twice a week he walked about a kilometre if possible.  He did a few household chores. About 90 per cent of the time, when walking, he limped.  Rarely, he went to ‘the pokies’.  He had done so a couple of weeks before, with a mate.  He did it ‘just to get out’ of the house.  He said that he avoided bending and had trouble getting into and out of a car.  When he got to a certain position he ‘just plonk[ed] down’.  He demonstrated forward bending, which was to about 15 degrees.

Sexual activity

1. The appellant was vigorously cross-examined about the frequency of sexual relations with his partner.  The interest was forensic rather than prurient, being intended to show that appellant’s back pain and disability was not as bad as he asserted.  The appellant said that since injuring himself in November 2003 he and Ms Downes had engaged in intercourse ‘as much as [he] was able to’ but not without impact on his back.  Their child had been conceived in March 2005.  Since the child’s birth in early 2006, they had engaged in sexual relations less frequently;  but ‘it still exist[ed]’.

1. It is convenient to digress, and to refer to pertinent evidence given by Ms Downes.  In cross-examination, she was pressed about the frequency of their sexual relations after November 2003.  She explained that there were difficulties, and what they had done – specifically, the adoption of a particular position - to minimise them.  She said that intimacy took place ‘as regular as possible’.  Pressed by respondent’s counsel with the question, ‘and that could be many times per week?’, she responded ‘I wish’.  The cross-examiner did not persist.

1. This line of cross-examination of the appellant and Ms Downes was, on any rational analysis, a very considerable failure.

Right or left sided radiation?

1. I should mention a controversy concerning the leg to which pain radiated following the November 2003 incident.  In light of the medical evidence, very short cross-examination of the appellant about the matter appears to have been directed – mainly at least – to his credit.  It is convenient to mention not only the evidence of the appellant, but other relevant evidence concerning this matter.

1. The appellant said that radiation was initially to the left leg; and that it had so continued except when symptoms were severe.  Then, there was radiation also to the right leg.

1. The notes of the general practitioner for 25 November 2003 recorded a history of the appellant pulling ‘his left back muscle’ the previous day.  Examination revealed ‘L4-5 level with mild tender left buttock muscle tenderness’.  But, strangely, the diagnosis was recorded as ‘muscle sprain right buttock’.  Then, on 28 November, a general practitioner had noted ‘still has some pain right buttock’, and, on examination, ‘right buttock localised tender’.  There were further references to the right buttock and/or right back on 2 December, 5 December, 9 December, 15 December, 23 December 2003, and 23 January, 24 February, 25 March 2004.  Then, on 13 April 2004, the notes recorded ‘claimed left lower back pain worse for 2/7’ (two days).  Thereafter, the practice notes referred to the left side of the back and left leg.

1. The doctor from the Medical Centre who gave evidence had not been the appellant’s treating doctor in the period when reference was made in the practice notes to the right back and buttock.  He understandably agreed in cross-examination that there was an internal inconsistency between the initial complaint of pulling of the left back muscle and diagnosis of a right buttock sprain.  Other than that he agreed, as was the case, that the notes referred to right-sided pain up until April 2004.

1. Mr Huckson, a physiotherapist, gave evidence that the appellant was referred to him on 9 December 2003.  He took a history of low back and left buttock and thigh pain.  He made a diagram of the areas about which the appellant was complaining.  It was put in evidence.  It showed that the areas complained of were the low back,  the left buttock, and the back of the left thigh.  There was also indication of intermittent shooting pain spreading down towards the left knee.

1. Mr Huckson gave evidence that the appellant attended upon him regularly until late March 2004.  Most of that time, referred pain down the left leg continued to be a feature of the appellant’s complaint.

1. To complete the picture, in a report to the general practitioner dated 12 December 2003, Mr Huckson described ‘referred left leg pain’ and ‘decreased left-straight leg raise’.

1. Mr Huckson was cross-examined to show that he was now aware of a discrepancy between the general practitioner’s records and his records concerning which buttock/leg was initially affected.  But it was not suggested that his history or findings were wrongly recorded.

1. Three points may be made.  First, no doctor who gave evidence pinned his opinion as to the nature of the compensable injury, or its past and probable future effects, upon the question whether the appellant initially complained of left or right sided buttock pain.  The matter was not put to Mr Barnett at all.  Second, the appellant was scarcely cross-examined about the discrepancy between his account and parts of the general practice notes.  Third, in light of Mr Huckson’s notes and diagram, and as well reference to limited straight leg raising on the left side, it is overwhelmingly probable that the appellant’s evidence that the left buttock and leg were predominantly affected from the outset was reliable.

The films

1. I deal with the films as a separate topic.

1. After the appellant had been shown the films, and he had acknowledged that he was depicted in them, the following matters were put to him, about which he gave the following responses:

(1)        It was put to the appellant that he had attended a gaming venue on 20 August 2008.  He had been there for about an hour.  It was an occasion additional to that which he had earlier mentioned in cross-examination.  Contrary to his statement to a doctor that his sitting capacity was only five to ten minutes, he had been seated ‘well in excess of five and ten minutes at a time’.

The appellant agreed  that this was an additional occasion on which he had attended a gaming venue.  He had forgotten about it.  The nature of the seats at the venue, which were high, meant that he had been sitting and standing at the same time.  In any event, he had told other doctors that he could sit for longer than five to ten minutes.  He could not sit for longer than that when he was at his worst.

(2)       Counsel put to the appellant that, in court, before giving evidence, the latter had been ‘grimacing, ... standing and sitting, arching [his] back’.  That was not depicted in the August 2008 film.  The witness agreed that on the particular occasion he was not so depicted.

(3)       The witness was asked whether he was shown to be limping on any of the films.  He responded that he was limping - in one instance slightly -on two of them.

(4)       The witness was asked whether the films showed him to have any restriction when getting in and out of a motor vehicle.  His answer was ‘you mightn’t see the restriction, but I certainly feel it’;  and ‘… if you have seen the video, when I got there I actually just fell down in the car seat’.

(5)       The appellant was challenged about his demonstration that he could bend his back ‘only 15 degrees or whatever’.  It was suggested that in going in and out of a vehicle in a 2007 film he had forward flexed to 90 degrees.  He responded that –

You can’t see what happens on the inside of the car.  If you could see my arms, I put my arm out on the seat to hold my weight and one knee is on the seat, so I’m sort of not bending, I’m crouching like on my hands and knees because it’s the only way I can do that sort of thing.

(6)       It was put to the appellant that the films did not show him to have restricted back movement.  He ‘basically’ accepted that this was so, adding that ‘they were only ten second videos out of a 24 hour day’.  He went on to say that it was not so much that he could not do things, but that ‘it just hurts at a certain point’.

1. I have viewed the films.  It is notable that for the most part they contain few uninterrupted sequences, even in short films taken on a single day.  In my opinion, looking at them as favourably as is possible from the respondent’s standpoint, they enabled the jury to conclude that on the few occasions when the appellant was filmed – (1) speaking generally, he did not have restricted back movement;  (2) he got into and out of his car freely – but using a particular methodology;  (3) he was not shown grimacing, getting up and down or arching his back;  (4) the extent of his forward bending, referred to in [56](5), was much overstated by respondent’s counsel, and was consistent with the appellant’s explanation;  (5) his explanation of the way in which he was seated at the gaming venue, and its significance for him, was compatible with what was depicted; (6) he was shown limping on two occasions, but not otherwise.

The medical evidence

1. I have already, at [16], referred briefly to the medical evidence.  Something more must be said about it.  I begin with the nature of the compensable injury.

1. Mr Barrett was the orthopaedic surgeon to whom the appellant was referred by his general practitioner.  After examination, and having conducted various investigations which included an MRI and a discogram - the latter of which is very painful - he concluded that the appellant had suffered, in the November 2003 incident, rupture of the L4/5 and L5/S1 discs.  The damage was not a normal ageing process.  He advised the appellant that there were two possible treatments – a two level interbody fusion or a continuation of conservative treatment.  After consulting with a second orthopaedic specialist, the appellant  had decided to follow the latter course.  Mr Barrett did not criticise that decision.  It left the appellant with permanent disability, but avoided the risk of an unfavourable surgical outcome.

1. Mr Russell Miller, orthopaedic surgeon, examined the appellant at the request of his solicitors in February 2008.  His findings included objective evidence of disability – loss of lordosis and muscle spasm.  He diagnosed injury to the lumbar spine with disc disease at L4/5 and L5/S1, and probably disc prolapse at L5/S1.  The November 2003 incident, he opined, had rendered pre-existing degenerative disease symptomatic and probably caused the disc prolapse.

1. Mr Kevin King, orthopaedic surgeon, examined the appellant at the request of his solicitors on 25 July 2008.  On examination, he found, like Mr Miller, muscle spasm.  He opined that the appellant probably had ruptured the annulus of the L5/S1 disc in the November 2003 incident, then having a not entirely normal lumbosacral disc.  The doctor contrasted rupture with prolapse.

1. Mr Kenneth Brearley, specialist trauma surgeon, examined the appellant, at the request of his solicitors, on 2 August 2005, 8 May 2006 and 30 April 2007.  He found muscle spasm on the various examinations.  In April 2007 he observed some wasting of the left thigh and calf.  I mention the spasm and wasting because they were objective signs of spinal disability.

1. Mr Brearley diagnosed the problem, attributable to the November 2003 incident, as an L5/S1 intra-disc rupture with left-sided nerve root pressure.  Like Mr Barrett and Mr King, he spoke of disc rupture rather than disc prolapse.

1. Mr Huckson, the physiotherapist, was another practitioner who observed muscle spasm.

1. Mr Michael Dooley, orthopaedic surgeon, examined the appellant at the request of the respondent on 28 April 2008.  As a result of his examination and consideration of various investigations, he concluded that the appellant suffered from degeneration at L4/5 and L5/S1, which he described as ‘annular tearing’.  Like other doctors, he did not speak of prolapse.  It was his opinion that the November 2003 incident had rendered underlying pathology symptomatic, and was causing the appellant ongoing back and leg pain.  In cross-examination, he stated that, once aggravated, a degenerative condition will remain painful at least on an intermittent basis.

1. Dr Malcolm Brown, occupational physician, examined the appellant at the request of the respondent on 5 March 2008.  He observed that the appellant sat at consultation for about 20 minutes without obvious signs of acute discomfort;  but that he had some back stiffness when he stood up, and walked with a slight limp.  This doctor also observed spasm.  On the other hand, he stated that the appellant’s ability to forward flex was better than the patient would concede.  In cross-examination, he stated that he was not clear whether he had measured the left leg to see if there was muscle wasting, and that he might not have looked to see if there was loss of lordosis.

1. His opinion was that the appellant had ‘chronic … low back pain likely to be coming from the disc but without any evidence of nerve root involvement’. 

1. I turn to the significance, if any, of the June 2003 incident.  The appellant had not given a relevant history to a number of the doctors.  The history of the incident was put to them.  None of them opined that it detracted from a conclusion that the November injury, whatever was its precise pathology, had continuing effect.  To Mr Dooley, it confirmed that there had been pre-existing spinal degeneration, which had in the past produced some symptoms. 

1. The issue whether radiation of pain had initially been to the left or right side was put to a number of the doctors.  Even accepting as a fact that there had been radiation to one side or the other at different times, no doctor varied his opinion as to the continuing relevance of the November injury.  Messrs Barrett, King and Miller said, in effect, that the June 2003 incident was insignificant.  Mr Dooley said that he did not consider (actual) variation in the area of radiation was ‘all that relevant’.  Dr Brown attached some significance to what he assumed had been a variant history given by the appellant – that is, that it bore upon his reliability as a historian.  For reasons previously discussed, no rational jury, in my view, could have concluded that the appellant had in fact given a variant history.

1. I turn to the issue of work capacity.  Mr Barrett stated that in his opinion the appellant was unfit for gainful employment at the time of his March 2005 examination.  That remained his opinion at time of trial.  Cross-examined, he opined that the appellant was unfit for even light work on a full time basis.

1. Mr Miller opined that the appellant had a ‘markedly reduced capacity for work’.  He would have difficulty with physical work, particularly work involving repetitive bending, lifting of weights exceeding 5 kgs, and probably work where he was required to sit for a prolonged period of time.

1. In cross-examination, Mr King stated that the appellant was theoretically fit for light physical work, or clerical or administrative work – but not as a practical proposition.  Because of his medication, he could not work as a courier driver.  Because of his age and schooling, retraining for clerical work would be very difficult.

1. Mr Brearley opined that the appellant was unfit for labouring work and coach driving.  There was no possibility of him doing lighter work;  he was not trained for it.  But in cross-examination he agreed that the majority of persons in the appellant’s position eventually improve ‘in the very, very long term’;  ‘I mean years and years and years’.  He agreed also that it would be best for the appellant if he could be offered suitable work.  There was mention by counsel of ‘a light physical sedentary role’;  whilst the witness referred to a part time job as a car salesman.  Mr Brearley ended up by agreeing that in three to five years the appellant could probably do ‘full time work in a light physical sedentary role or a sales role without lifting on a full time basis’.

1. Mr Dooley opined that the appellant would be unfit to perform regular heavy physical work in the future.  But he thought that the appellant would be able to carry out ‘light physical work or clerical duties’.  He opined that the appellant would probably be able to work as a ‘light delivery driver’, eventually on a full time basis.

1. Mr Dooley further opined, looking back to 2004 – remembering that he only examined the appellant in 2008 – that at the time when the appellant ceased work with the respondent in September 2004, he would have expected the appellant to be able to carry out ‘at least part time light duties work’.  By this, he agreed, he meant ‘in the order of 50 per cent’ of the appellant’s previous hours of work – which had been 12 per day.  Thus, the doctor was opining that the appellant could have performed in the order of six hours light duties work each day.  In cross-examination, he agreed that the appellant’s skills and training and permits were now useless to him.  He also said this:

…what I’m trying to look at and when I see Mr Butcher I’m looking at Mr Butcher as a whole not just at his back and, as I said before, I think the most important part of his actual treatment, separate of what I’ve said before, is that he gets back to useful, satisfying and what I’d term productive employment otherwise his life will remain unstable.  I think from an orthopaedic viewpoint and from a general viewpoint there are potentially light physical positions that he will be able to work, and, as I said before, I agree, it would be very difficult given his current lack of training in certain areas, computers et cetera, to be employed in what I’d term a modern clerical position, that wouldn’t be easy.  It’s not impossible but it wouldn’t be easy.

Mr Dooley, what you’re expressing essentially is a sentiment that you don’t want to give him some sort of hope and encouragement for the future, is that right? - - - That’s correct, because I think, unfortunately, the system doesn’t take an active interest in that component.  Somewhere along the line he is going to be spat out, given compensation and told ‘See you later.’  No one is really going to be interested in his back problem or where he heads and where the system fails is that the only way he can become stable in life and remain stable in his family life is if at age 40 he can gain appropriate employment.

He repeated those sentiments in a number of later  passages in his evidence.

1. Dr Brown opined that the appellant had a capacity for ’suitable duties but avoiding frequent bending and heavy lifting’.  In the long term, whilst his functional capacity could be improved, he would be unable to do tasks involving strenuous manual work.  The doctor agreed with the suggestion of respondent’s counsel that the appellant could work full time as a food processor, food industry supervisor, sales representative, forklift driver,  spare parts salesman, occupational health and safety officer, real estate sub-agent or car sales assistant.  But cross-examined, although he adhered to that opinion, it became apparent that he had misunderstood the nature of work and the hours of work performed by the appellant between March and September 2004.

1. Finally, I should mention the evidence of Margaret Leitch, an occupational therapist with a graduate diploma in rehabilitation studies.  She assessed the appellant’s work capacity, at the request of his solicitors, in 2008.  She concluded that the appellant was fit for 12 hours (three days of four hours) suitable work per week.  Suitable work was work which avoided moderate or heavy manual handling, frequent bending or twisting of the spine, prolonged stooping, sitting, standing or walking. 

1. Cross-examined, she agreed that the company which employed her prepared assessments for injured plaintiffs for use in court proceedings.  It does not appear to have been suggested, however, that her opinion was other than a bona fide exercise of professional judgment.  What was put to her was that her assessment had been in part dependent upon the true extent of the appellant’s disability and in part dependent upon a textual description of particular job activities.

Closing addresses

1. It is trite that the jury was not bound by anything that counsel submitted upon the question of damages.  I will mention, however, a few aspects of what was submitted by the very experienced senior counsel who appeared for the parties.  I will particularly focus upon the address for the respondent, for it highlighted the matters which, it seems likely, must have weighed with the jury.

1. Counsel for the respondent, who first addressed, submitted that the jury’s assessment of the reliability of the appellant was important.  The jury, he submitted, knew more about the appellant than the doctors. 

1. He highlighted the appellant’s history to doctors which had made no reference to the June 2003 incident, and the appellant’s evidence as to the area of his back then affected.

1. He sought to make something, also, of the fact that the appellant came to court on the second day of his cross-examination and volunteered that he had been wrong about when he attended the Mildura Base Hospital. 

1. In the face of the entirety of the medical evidence, he suggested, in effect, that the June 2003 incident might have been the more serious. 

1. Then he addressed the ‘right side, left side’ issue.  According to his submission, the appellant at the one time was telling different things to different health professionals.

1. Further according to counsel, the jury ‘might wonder’ about the appellant’s ability, with such a bad back, to engage in sexual relations with his partner.

1. Next, according to counsel’s submissions, the films gave ‘a very objective and unaffected view of the [appellant] in certain circumstances’.

1. The appellant, counsel submitted, was a person who the jury might think fitted the description of an itinerant worker.  Further, he was a man who had received warnings when employed by the respondent.  He should not be regarded as having genuinely sought work.  He lacked motivation, as was exemplified by him spending what money he possessed playing ‘the pokies’ rather than undertaking hydrotherapy.

1. Counsel then addressed the medical evidence; and having done so submitted that pain and suffering damages should be assessed ‘in tens of thousands, not hundreds of thousands of dollars’.

1. With respect to pecuniary loss damages, counsel submitted that the jury might think it appropriate to allow about $100,000 to date of trial – this being about 50 per cent of the appellant’s claimed loss; and, for the future, about $200,000 (including an allowance for loss of prospective superannuation).  For the future, as with the past, counsel’s submission was based upon a 50 per cent loss by comparison with the wages that the appellant would have been earning in the respondent’s employ.  $300,000 was, he submitted, ‘a lot of money for a crook back’.

1. Appellant’s counsel, having analysed the evidence of the medical witnesses,  submitted to the jury that -

You should find that he suffered a permanent serious injury to the L5-S1 disc in his lower back and a more moderate injury to the L4-5 disc immediately above.  These are not injuries which the body is capable of healing by the normal healing processes.  It’s a lifelong injury with lifelong consequences.

You should be satisfied that the injury will impinge on every aspect of his life, his working life, so that he will not be able to provide for his family.  His life as a father:  he will not be able to enjoy the life with his son as he would wish.  His life as a husband assisting his wife at home and his private life with her has been affected as well.

1. By reference, particularly, to the evidence of Mr Dooley, counsel submitted that a fair-minded jury should not reduce loss of past and future earnings by 50 per cent.

1. Counsel then challenged a number of matters relied upon by respondent’s counsel in final address.  He submitted that they had ‘turned out to be of no relevance at all’.  He referred to the June 2003 incident and the ‘right side, left side’ issue.

1. With reference to loss of superannuation, past and future, counsel advanced a discounted amount of $100,000.  It assumed an average growth in superannuation funds of nine per cent per annum and factored in administration expenses and tax.  It assumed that the appellant would not work again.

1. As for past loss of earnings, counsel submitted that the appellant had in reality been wholly incapacitated.  He ought be allowed about $180,000.

1. Then, as to loss of earning capacity, counsel submitted that the appellant would continue to be wholly incapacitated, and that he would have worked to age 65.  Allowing ten per cent for vicissitudes, an amount of $445,000 ought be allowed.

1. So, he submitted, pecuniary loss damages should be assessed in all at around $720,000.

1. With respect to pain and suffering damages, counsel submitted that the injury was permanent, and would restrict the appellant for life.  He could do little about the house.  He could not be the sort of father which he wanted to be to his son, or a proper husband to his wife.

1. The films, counsel submitted, did not in any way discredit the appellant.  What little there was showed that he was not doing very much with his life.

1. For pain and suffering damages, counsel suggested a range of $300,000 to $350,000. 

The appeal should succeed

1. In my opinion, the amounts awarded for both pecuniary loss damages and pain and suffering damages were so low as to be, on any reasonable view of the evidence, manifestly inadequate.  A jury, properly instructed, could not have returned them upon the state of the evidence at the trial.  Although it is not strictly necessary to seek to explain how it happened that the jury went so wrong, in fact it seems very likely that it took up the invitation of respondent’s counsel to find that the appellant was a generally unreliable witness - even though, on rational analysis, most of the points made were insubstantial;[14]  and that this led on to it mis assessing the evidence generally.  The following matters are in point.

   [14]The jury asked three questions after being sent out to consider its verdict.  Two of them related to aspects of the appellant’s accounts of the June 2003 incident.  I draw no conclusion from those questions.  But they are not inconsistent with what I consider was the probable explanation for the jury going so wrong.

1. First, it was indisputable that the appellant, when injured, was a man in regular employment, doing heavy work, and working long hours for good pay. 

1. Second, it was not in dispute that the appellant did injure his low back in a straining incident at work in November 2003.

1. Third, the appellant had apparently suffered injury in a motor vehicle accident years before.  But no doctor suggested that any such injury was of any significance; and the certain fact is that the appellant thereafter engaged in heavy work without apparent disability.

1. Fourth, the appellant did injure himself at work in June 2003, and it was open to the jury to conclude that, contrary to what he said, he then injured his lower lumbar spine.  But it is the certain fact that he was only off work for a few days, that he resumed his heavy work and his long hours of duty, and that he attended his doctor in August 2003 on three occasions but made no complaint of back symptoms.  It is also the certain fact that no doctor called at the trial said that this incident caused him to doubt the significance of the November incident.  The jury was entitled to conclude – though it seems an improbable conclusion, for after all (1) the appellant was in the respondent’s employ in June 2003 and had completed a claim form, and (2) the appellant ferreted out the true state of affairs overnight during the trial, and volunteered information the next day – that the appellant had attempted to conceal the occurrence of the June incident.  But such a conclusion really led nowhere.

1. Fifth, the ‘right side, left side’ issue, as articulated by respondent’s counsel in final address, was on any rational assessment insubstantial for three reasons:  (1) As I have explained, the overwhelming likelihood is that the Medical Centre records were erroneous.  (2) The submission for the respondent that the jury should conclude that the appellant, in late 2003 and early 2004, consistently told the general practitioner that he had right-sided pain, but told the physiotherapist that his pain was on the left side, and so was an unreliable historian, invited the jury to reach an absurd conclusion.  This was not a case of a man later revisiting a medical history and recasting it either intentionally or for want of accurate recollection.  (3) In any event, no medical witness opined that, if the reported variation in history represented the fact, it made any difference to diagnosis or prognosis.

1. Sixth, there was a dispute in the medical evidence whether the appellant had suffered frank disc injury or else the aggravation of pre-existing, (largely) asymptomatic disc degeneration in the November incident.  On a best view of the evidence for the respondent, the jury, I consider, was entitled to accept the evidence of the two specialists whom it called;  and to do so notwithstanding – (1) that each of them only examined the appellant once, in 2008;  (2) that Dr Brown’s opinion was little remarked upon in the final address of counsel for the respondent;  (3) the contrary evidence of the four specialists called for the appellant;  (4) that the respondent did not call (a) an orthopaedic surgeon who had examined the appellant in 2005 and 2006, (b) a general surgeon who had examined the appellant in 2005, (c) a psychiatrist who had examined the appellant in 2005, (d) another psychiatrist who had examined the appellant in 2006, and (e) Professor Vernon Marshall, Professor Emeritus of Surgery at Monash University and Senior Consultant Surgeon at Monash Medical Centre, who had examined the appellant twice in 2004 and twice in 2005.

1. Seventh, assuming that the injury was the aggravation of pre-existing disc degeneration, there was no evidence that such injury was self-limiting; or that the appellant would have come to the same position at some time by reason of the relentless progress of the degenerative disease.  The evidence was thus that the appellant had suffered injury to his low back which was permanent in its effect.  That was so even if, to an extent, the total effect was the greater because of a supervening  chronic adjustment disorder with depressed mood;[15]  or the presence of ‘psycho social factors.’[16]

   [15]The opinion of Dr Epstein, psychiatrist, who examined the appellant on 9 April 2008 at the request of his solicitors.

   [16]The opinion of Dr Brown, who referred to depression which was in some degree at least secondary to physical injury, financial pressures, and the difficulty of finding further employment.

1. Eighth, no doctor opined that the appellant was feigning disability.  The objective evidence on physical examination was in any event opposed to such a conclusion.  Quite apart from the discogram and MRI evidence, there was the repeated presence, on examination by a number of the doctors over the years, of muscle spasm.  Observation was also made of loss of lordosis and some wasting of the left leg.  Dr Brown, I must add, gave evidence that on examination he noted several inconsistencies.  But he also observed that when the appellant stood up, after being seated for about 20 minutes, he exhibited back stiffness and limped; and he noted the presence of muscle spasm.  That doctor, like the surgeons, did not opine that the appellant was feigning disability.

1. Ninth, the most favourable view of the medical evidence available to the respondent was that the appellant’s pain, for the rest of his life, would be intermittent, rather than constant.

1. Tenth, the medical evidence spoke as one that the appellant was permanently unfit for the manual work in which he had hitherto engaged, and in respect of which he had qualifications.  Almost every witness described the appellant’s prospects of obtaining employment as bleak.  Dr Brown, whose relevant expertise was subject to substantial challenge, opined that there were a number of jobs that the appellant would be able to do full time.  Had his evidence been well-founded, the jury could have chosen to accept it, notwithstanding that challenge.  But, as I have said earlier, his evidence proceeded from a misconception as to what the appellant had done in the period of his resumed employment by the respondent.  Moreover, his evidence about what jobs the appellant could now perform in some instances assumed the appellant to have skills which he did not possess; and in other instances took no account of the fact that the appellant was taking a prescribed morphine-based painkiller (as well as substantial other medication).

1. Eleventh, I have already described the films, and have identified the extent to which they could have assisted the respondent’s case that the appellant was not as disabled as he made out.  The films had a contextual setting:  (1) They showed 38 minutes of the appellant’s activities in a period which exceeded three years.  (2) They showed 38 minutes of the appellant’s activities in 196 hours of observations by investigators on 34 separate days.  (3) In those 38 minutes, the appellant carried out no domestic activities.  Neither did he undertake any physical exertion.  (4) No investigator was called to give any evidence about what was seen in the more than 195 hours of observations which had produced no film.  (5) At all times when the films were taken the appellant was taking very strong painkillers.  (6) The films were not shown by the respondent to any medical witness.

1. The jury was not bound to infer that, during the other 195 hours, the appellant had not been seen doing anything more than the films showed him doing.  But what it must have concluded is that there was no evidence that he did do anything more.

1. In respect of the films not having been shown to the  medical witnesses, the jury was not bound to infer that the respondent had been afraid to put them to the appellant’s witnesses.  It was entitled to reason that the respondent was not obliged to take a chance on what those witnesses might say about the films.  But it was much more difficult for the respondent to explain away not asking its own medical witnesses to comment on the films.  After all, the witnesses could have been shown the films before giving evidence, and their opinions obtained.

1. Twelfth, there was no debate as to what amount the appellant had been earning with the respondent as at November 2003; or what amount he would have been earning at trial in that employment.  Further, whilst the appellant was cross-examined to show that he had received written warnings about a few matters when employed by the respondent,  no evidence was adduced that he stood any chance of losing his job had he not been injured.

1. Thirteenth, it was submitted for the respondent at trial that the picture of the appellant’s work history was an uninspiring one.  It revealed low earnings at times, and other periods when the appellant had not been in work.  So also, it was the fact that, after injury, the appellant had accepted a small redundancy package, and that he had said that he would not attempt very low paid jobs.  Although the appellant gave an explanation for his periods of low earnings, and why he was in receipt of social security payments at other times, although he gave evidence of a better work record in earlier times, and although he explained why he had accepted the redundancy package and would not attempt to work in unsatisfactory, low paid jobs, the jury was entitled to give weight to the arguments advanced for the respondent.  But, as I said a moment ago, the certain evidence was that when injured he was in steady employment, working long hours for good money.  There was no evidence that he stood to lose his job.  Further, the submissions made for the respondent about pecuniary loss damages assumed that he would retain it.  All else apart, his work and earnings at time of injury showed his fitness for work and his earning capacity before November 2003.

1. Fourteenth, it is the certain fact that the appellant was at time of trial being treated with a heavy pain-killer, and as well anti-depressants and other medication. This had been the regime for years before that.  It is also the certain fact that he had been prepared to undergo discography, which was described as an intensely painful procedure.  His decision not to undergo surgery, which no doctor criticised – and which several doctors said was contraindicated – was not said by any doctor to gainsay the existence or extent of symptoms. 

1. Fifteenth, the appellant and Ms Downes gave evidence about the appellant’s day to day restrictions on activity, and pain and disability, which was challenged in cross-examination.  But their evidence was on the one hand supported by the medical evidence, with the qualification that the respondent’s witnesses would have expected intermittent rather than constant pain; and on the other hand, was not controverted by the films.  I should add that, for reasons previously described, the respondent’s continued reliance in counsel’s final address upon the extent of the appellant’s sex life as a marker of the extent of his pain and suffering was, in my view, seriously at odds with the evidence.

1. I have attempted, at [101]-[117], to set out the state of the evidence free of unsustainable assumptions about the unreliability of the appellant’s evidence, free of speculation and prejudice, and focussing upon the many matters about which there was complete or at least very great agreement.  I have also pointed out that the difference between the doctors as to the precise nature of the spinal lesion bore only upon the likely frequency of pain.  In my opinion, upon a best view of that evidence for the respondent, pain and suffering damages should not have been less than $150,000.

1. With respect to pecuniary loss damages, the amount that the appellant would have earned up to trial in employment by the respondent was, as a matter of arithmetic, agreed.  It was, including a Fox v Wood[17] component, about $180,000.  

   [17](1981) 148 CLR 438.

1. With respect to the appellant’s loss of earning capacity, the arithmetic was clear enough when approaching the matter, as both parties essentially did, by reference to the wages payable by the respondent at time of trial. Using the six per cent multipliers to ages 60 and 65,[18] and before discounting for vicissitudes, the amounts nominally lost were about $438,000 and about $493,500.

   [18]Which was, of course, only one way of looking into the future, and one apt to give a false impression of certainty.

1. Concerning superannuation, on the appellant’s case the overall loss, discounted for vicissitudes, was about $94,000.  On the respondent’s case, as advanced to the jury, it was $40,000.

1. Taking a view most favourable to the respondent, the jury could have reasoned that the appellant would have worked, but for injury, to 60 and not 65. 

1. The jury could further have accepted that the appellant had not been wholly incapacitated between September 2004 and trial – although it must be said that the only contemporaneous medical evidence of the appellant’s situation between time of injury and March 2008 was evidence called by the appellant, and that such evidence was capable of supporting a conclusion that for most if not all of that period the appellant was in practical terms unemployable.

1. The jury might next have concluded that the appellant would only be incapacitated for some kinds of work for the balance of his working life.  But the work for which he was permanently disabled was work of the kind which he had done over the years. 

1. Mr Dooley’s opinion that the appellant had been fit (as at September 2004) to perform in the order of 50 per cent of his previous hours of work in suitable light duties was evidently relied upon by respondent’s counsel as the basis for his submission with respect to pecuniary loss damages.  But the doctor’s opinion did not assert that the appellant’s earnings loss to time of trial, or his loss of earning capacity thereafter, would be 50 per cent.  For it contemplated the appellant working only part-time, and it could not be assumed that the wage rates for suitable light work – assuming that such work existed in fact as distinct from theory – would equate the rate paid by the respondent for the job in which the appellant was employed at time of injury. 

1. In this Court, counsel for the appellant submitted, in the circumstances described, that the respondent had not discharged an evidentiary onus of showing what wages his client could earn in ‘suitable work’.  It had been contended for the appellant at trial that, in reality, he had a total loss of earning capacity.  The respondent had invited the jury to reduce pecuniary loss damages on the footing that the appellant was only partly incapacitated;  but it had led no evidence of the monetary consequences of that lesser incapacity.  Counsel relied upon Woodhead v Barrow.[19]

   [19](1993) Aust Torts Reports 81-238.

1. Counsel for the respondent submitted, in this Court, that Woodhead was distinguishable.  The respondent had adduced evidence at trial of the appellant’s capacity to engage in ‘real jobs’.  Moreover, counsel for the appellant had not submitted, at trial, that the respondent could not go to the jury asserting that the appellant had a work capacity;  and that was important.[20]

   [20]Citing Abdul- Massih v Abdul- Massih [2001] VSCA 231, [23], [35], [37] (Vincent JA).

1. Woodhead did address a different issue to that which arose here.  In this case there was some evidence that the appellant was fit for particular jobs.[21]  But whilst the appellant’s case that he was, in reality, wholly incapacitated was met by contrary evidence, that evidence did not address what wages might be earned in the jobs for which, on the respondent’s case, the appellant was fit.  That is a situation in respect of which, according to authority, an evidentiary burden does fall on a defendant.  Baird v Roberts,[22] Yammine v Kalwy[23] and Van Velzen v Wagener,[24] all cited in Woodhead, addressed it.  This approach has been restated in the years since Woodhead.  A recent instance is AFA Air Conditioning Pty Ltd v Mendrecki.[25]  See also the fourth edition of Professor Luntz’s Assessment of Damages for Personal Injury and Death.[26]

   [21]Cf Woodhead, ibid 62469 (Eames J). It is beside the point that many juries might have thought the evidence to be unpersuasive.

   [22][1977] 2 NSWLR 389, 398 (Mahoney JA).

   [23][1979] 2 NSWLR 151, 155 (Reynolds JA), 156, 158 (Mahoney JA).

   [24](1975) 10 SASR 549, 550 (Bray CJ) though compare the approach of Walters and Wells JJ at 554.

   [25](2008) 101 SASR 381 (Layton J, Full Court).

   [26]Lexis Nexis, 2006, [1.9.20] and n 717.

1. I agree with the submission for the respondent, however, that by reason of the way in which the trial was conducted the appellant should not now be permitted to rely upon the respondent’s failure to adduce pertinent evidence. Counsel for the appellant chose to go to the jury on the basis that it was being said for the respondent that the jury should ‘reduce the [appellant’s] claims for past and future loss of wages by 50 per cent because fair-minded people would think that he can get work.’  Counsel then analysed the evidence of the respondent’s medical witnesses with respect to the appellant’s capacity for work, and submitted that such evidence should be rejected.  He did not criticise the evidentiary foundation for the 50 per cent reduction in earning capacity for which respondent’s counsel had contented.

1. But whilst, in my opinion, it was too late for appellant’s counsel to raise the alleged evidentiary lacuna on the appeal, it does not follow that the evidence which the respondent did adduce with respect to the likely money consequences of the appellant’s compensable disability was at all satisfactory.  At its highest, that evidence  met the appellant’s claim that he was wholly incapacitated, and the money consequences of such a situation, in an indirect and imprecise way.

1. In my view, in the circumstances described, the jury would have been deciding things entirely in the respondent’s favour had it accepted the argument that pecuniary damages should be no more than $300,000.  It could not be said that such an amount did not adequately allow for vicissitudes, including any allowances for the criticism of the appellant’s work record over the years, and his asserted want of motivation.  For there was a 15 per cent reduction in respect of the period between trial, when the appellant was aged 41, and his attaining age 60.  Moreover, such amount allowed very little for lost superannuation - an issue about which it is unnecessary, in the circumstances, to analyse the competing submissions. 

1. I consider, then, that on a best view of the evidence for the respondent any amount less than $300,000 for pecuniary loss damages was so low that a jury, properly directed, could not have awarded it.

1. Finally, I should make one matter very clear.  Frequently, in the course of these reasons, I have referred to the evidence of the medical witnesses – their findings and their opinions.  As has often been said –  I have emphasised it myself on a number of occasions – a trial such as was held here was not a trial on the medical evidence alone.  It was a trial on all the evidence in the case.[27]  I have kept that principle steadily in mind when considering this matter. 

   [27]A conclusion contrary to the unanimous opinion of medical witnesses upon a question of medical expertise, unaffected by the patient’s history, would raise a legitimate question, however, whether the conclusion was aberrant.  I do not say that the jury inferentially made a finding of that character.

What should be done?

1. In my opinion, the appeal should be allowed and the matter should be

remitted for re-trial.  It is one thing to say, on a best view for the respondent of the evidence which was led, that the damages should not have been less than specified amounts.  It is another thing to assess damages freed of that restraint.  This Court faces the difficulty, for all that much of the evidence was not in dispute, that the case is one in which the quantum of damages would be influenced by an assessment of the appellant’s presentation.  In such a case, it is the better course that the body assessing damages should see and hear the appellant.

WEINBERG JA:

1. I agree with Ashley JA. 

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