Chung v Anderson

[2004] NSWCA 321

CITATION:	Chung v Anderson [2004] NSWCA 321
HEARING DATE(S):	11 February 2004
JUDGMENT DATE:	15 September 2004
JUDGMENT OF:	Santow JA at 1; McColl JA at 2; Cripps AJA at 144
DECISION:	(1) Appeal dismissed. (2) Appellant to pay the respondent's costs of the appeal.
CATCHWORDS:	DAMAGES - residual earning capacity - vicissitudes - "usual" deduction of 15% - challenge by appellant to deduction of 25% when no argument advanced at trial as to why "usual" figure should be departed from - CAUSATION - whether proper reasons given - EXPERT EVIDENCE - challenge to expert's report admitted without objection and not contradicted - APPEALS - arguments not advanced at trial sought to be advanced on appeal - where no exceptional circumstances. (D)
LEGISLATION CITED:	N/A
CASES CITED:	Bhambra v Roet [2003] NSWCA 393 Brazel v Nicholls [2003] NSWCA 387 Buller v Black [2003] NSWCA 45; (2003) 56 NSWLR 425 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Coulton v Holcombe (1986) 162 CLR 1 Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports 81-695 General Motors-Holdens Pty Limited v Moularas (1964) 111 CLR 234 Harper v Bangalow Motors Pty Ltd (NSW Court of Appeal, unreported, 24 July 1990) HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Larson v Commissioner of Police [2004] NSWCA 126 Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481 Moran v McMahon (1985) 3 NSWLR 700 Purkess v Crittenden (1965) 114 CLR 164 Ram v Oib [2003] NSWCA 223; (2003) 39 MVR 72 Richey-Lowe v Australasian Conference Association Limited t/as Sydney Adventist Hospital [2001] NSWCA 447 Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58; (2003) 38 MVR 82; (2003) Aust Torts Reports 81-693 Shead v Hooley [2000] NSWCA 362 Smith v Advanced Electrics Pty Limited [2003] QCA 432 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 Vasailes v Robertson [2002] NSWCA 177 Water Board v Moustakas (1988) 180 CLR 491 Whisprun Pty Limited v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
PARTIES :	Dr Wui K Chung (Appellant) John Gerard Anderson (Respondent)
FILE NUMBER(S):	CA 40260/03
COUNSEL:	A J Sullivan QC (Appellant) P W Neil SC/ S A Benson (Respondent)
SOLICITORS:	Sparke Helmore (Appellant) Bateman Battersby (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 223/01
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

CA 40260/03
DC 223/01

SANTOW JA
McCOLL JA
CRIPPS AJA

Wednesday, 15 September 2004

Dr Wui K CHUNG v John Gerard ANDERSON

FACTS

The respondent was referred to the appellant for orthopaedic opinion after he experienced pain in the joint of his right big toe. The appellant performed an operation which fused the toe at zero degrees of extension. The primary judge found this to be an abnormal position which led to additional stresses in other parts of the respondent’s foot.

The respondent’s job required him to be on his feet for a large part of his working day and to wear safety boots with steel caps. As a result of the angle at which his toe was fused, the respondent suffered stress fractures across his foot when he returned to normal work duties after the operation. He suffered significant pain whenever he had to wear the steel capped boots.

When the respondent’s medical condition did not improve he also developed depression requiring admission to hospital. His employment was terminated and he went on sickness benefits.

Delaney DCJ found that the appellant breached his duty of care to the respondent in fusing the joint of his right big toe at zero degrees of extension. In consequence of that breach, his Honour found that the respondent continued to have serious pain and discomfort in his foot which would continue indefinitely. The primary judge also found that the respondent’s psychological condition remained a significant feature of his life. Judgment was given for the respondent in the amount of $468,166.43.

The appellant did not challenge the finding that he breached his duty of care to the respondent. He sought only to challenge some components of the award of damages and the primary judge’s findings on causation. In the latter respect the appellant sought to argue that medical opinion which was not objected to at trial ought to have been rejected by the primary judge.

HELD per McColl JA (Santow JA and Cripps AJA agreeing), dismissing the appeal:

1. The primary judge’s conclusion that the respondent’s residual earning capacity was of the order of 30% disclosed no appellable error.

2. The Court should not entertain the appellant’s challenge to the allowance for vicissitudes where the appellant advanced no argument before the primary judge as to why the “usual” deduction of 15% should be departed from.

General Motors-Holdens Pty Limited v Moularas (1964) 111 CLR 234; Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; Coulton v Holcombe (1986) 162 CLR 1; Water Board v Moustakas (1988) 180 CLR 491; Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485; Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319; State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536; Whisprun Pty Limited v Dixon [2003] HCA 48; (2003) 77 ALJR 1598; Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58; (2003) 38 MVR 82; (2003) Aust Torts Reports ¶81-693; Bhambra v Roet [2003] NSWCA 393 referred to.

3. Where the defendant’s counsel does not demur to the plaintiff’s submission that the discount for vicissitudes should be the “usual” figure of 15%, the primary judge should not depart from that figure without giving the parties notice of his or her intention to do so and inviting them to make submissions about the appropriate percentage.

4. The Court should not entertain the appellant’s arguments on causation to the extent they differed from those advanced at trial.

Purkess v Crittenden (1965) 114 CLR 164; Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; Coulton v Holcombe (1986) 162 CLR 1; Water Board v Moustakas (1988) 180 CLR 491; Whisprun Pty Limited v Dixon [2003] HCA 48; (2003) 77 ALJR 1598; Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58; (2003) 38 MVR 82; (2003) Aust Torts Reports ¶81-693; Bhambra v Roet [2003] NSWCA 393 referred to.

5. It would be an unusual case which would warrant a Court rejecting an expert’s opinion which was admitted without objection and was not contradicted.

Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Ram v Oib [2003] NSWCA 223; (2003) 39 MVR 72; Brazel v Nicholls [2003] NSWCA 387; Smith v Advanced Electrics Pty Limited [2003] QCA 432; Larson v Commissioner of Police [2004] NSWCA 126 referred to.

6. The primary judge gave proper reasons for his conclusion on the causation issue: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 applied.

ORDERS

1. Appeal dismissed.

2. Appellant to pay the respondent’s costs of the appeal.

*******

CA 40260/03
DC 223/01

SANTOW JA
McCOLL JA
CRIPPS AJA

Wednesday, 15 September 2004

Dr Wui K CHUNG v John Gerard ANDERSON

Judgment

1 SANTOW JA: I agree with McColl JA.

2 McCOLL JA: This is an appeal from a judgment for $468,166.43 given by Delaney DCJ in an action for damages consequent upon a finding that the appellant breached his duty of care to the respondent in fusing the metatarsal joint of the his right big toe at zero degrees of extension.

3 The appellant’s written submissions to the primary judge on liability comprised twelve out of approximately thirteen pages of submissions. In contrast, his submissions on damages were short, some one and one third pages long. The primary judge justifiably commented that “the submissions on damages were relatively brief”. This was because, in his Honour’s view, “there was not a great deal of difference in the evidence on this point, other than the question of causation”.

4 The appellant does not challenge the finding that he breached his duty of care to the respondent. He does, however, seek to challenge some components of the award of damages.

5 The matters the appellant seeks to agitate were outlined in oral submissions by Mr Sullivan QC, who appeared for the appellant on appeal but not at trial. The appellant complains that the primary judge’s finding that the respondent had a residual earning capacity of 30% was too low. He also contends the primary judge ought to have deducted 35% to 40% for vicissitudes rather than using a discount of 25% when assessing damages for future economic loss. The third matter, which Mr Sullivan QC frankly acknowledged had its difficulties, was that the primary judge erred in finding that the respondent’s continuing problems and disabilities, particularly his psychological condition, were caused by the appellant’s breach of duties.

6 The respondent complains that the appellant seeks to raise matters on appeal which were either not in issue at the trial or were put in a more limited manner. He says that this Court should not entertain either the new or the expanded case.

7 As will appear there is force in this submission. It is necessary to refer, therefore, albeit briefly, to the principles concerning when a court will permit a party to raise a new case on appeal.

8 The “elementary proposition” that a party is bound by the manner in which the case is conducted at trial was emphasised in Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481 at 483 where, in refusing an application by Metwally to reopen an appeal to argue that an Act was invalid when the validity of the Act had earlier been accepted, the High Court in its joint judgment said that “(e)xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so”.

9 In their joint judgment in Coulton v Holcombe (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ said:

"To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

10 Their Honours emphasised that such an approach was essential to the interests of expedition, finality and justice.

11 Most recently in Whisprun Pty Limited v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [51] Gleeson CJ, McHugh and Gummow JJ said:

“[ 51 ] … It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.” [omitting footnotes]

These principles have been recently applied in Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58; (2003) 38 MVR 82; (2003) Aust Torts Reports ¶81-693 and Bhambra v Roet [2003] NSWCA 393.

12 In this case the difficulty the appellant faces in this respect is compounded, as will become apparent when dealing with causation, by the fact that the appellant did not cross-examine any of the respondent’s medical witnesses.

13 Only three witnesses were called at the trial: the respondent and his wife and the appellant. The respondent tendered as Exhibit A a bundle of medical evidence including hospital clinical notes and medical reports. The respondent’s medical evidence included a report from a psychiatrist, Dr Pickering. The appellant tendered three reports from Dr Negrine, a specialist in adult foot and ankle surgery. He did not tender any psychiatric evidence.

14 As I have said, none of the doctors were cross-examined. The primary judge made it clear to the parties, however, that he would facilitate their cross-examination. Mr Peter Neil SC, who appeared for the respondent both at trial and on appeal, drew the Court’s attention to a passage in the transcript where the primary judge made it clear that where there was no issue as to an expert’s credit, his intention was that that expert’s evidence could be taken by telephone at a time suitable to any such specialist.

15 At the conclusion of the evidence the primary judge set a timetable for written submissions. Mr Neil SC informed the Court that while the primary judge had directed written submissions, he also made it clear that the parties could, if they wished, make oral submissions. Mr Sullivan QC did not demur to that proposition. Neither party applied to the primary judge for leave to make oral submissions.

16 The respondent provided the Court with the entirety of the appellant’s written submissions to the primary judge and that portion of the respondent’s written submissions dealing with the issue of damages in support of his contention that the appellant sought to raise new matters on appeal: see Water Board v Moustakas (1988) 180 CLR 491 at 497.

Statement of the case

17 The following statement of the case is taken from the facts as found by the primary judge.

18 The respondent was born on 31 March 1960. He is a married man who lives with his wife and two children in Blaxland in the lower Blue Mountains.

19 He commenced employment with Corinthian Industries in 1981 after having been in regular employment in other occupations since leaving school. He worked in the back factory of Corinthian Industries. He was usually on his feet all day in the course of his employment. He was required to wear safety boots with steel caps. His job required him to walk up to twenty kilometres a day as well as to ascend and descend stairs in a particular part of the factory. He was also required to climb ladders from time to time. He was fit. He would regularly ride his bicycle to and from work – a distance of up to 37 kilometres.

20 In the 1990s the respondent started to experience pain in the joint of his right big toe. He sought medical attention which, in due course, led to him being referred to the appellant for orthopaedic opinion. The respondent accepted the appellant’s advice that one of the options available to him was to undergo a fusion of his right big toe.

21 The operation was performed on 4 June 1999. The respondent was discharged the following day in some pain and on crutches. He returned to work on light duties on 29 June 1999. He wore a slipper or soft shoes rather than his usual work boots.

22 The respondent returned to normal duties at the end of August 1999. At that stage he was taking Panadeine to relieve pain. Once the respondent returned to normal duties he had to resume wearing steel capped work boots. Shortly after he resumed wearing those boots, he noticed an increase in pain across the width of his right foot and through the foot. He said that this was pain he had not experienced before. The appellant reported in September 1999 that the respondent had “impending stress fractures in his foot”. The primary judge found that after the respondent returned to work wearing the steel capped boots, he suffered stress fractures across the foot.

23 The respondent consulted the appellant again and was advised that he was walking incorrectly. The appellant advised the respondent as to the manner in which he suggested he should walk. The respondent attempted to walk in that manner but his pain continued.

24 The respondent returned to work again on light duties wearing soft shoes and not using steel capped work boots. He continued to consult the appellant. The appellant continued to advise him on the way he should walk and that it was necessary for him to concentrate on walking in this manner. The primary judge accepted that the respondent said he could not do his job walking in the way the appellant advised and, indeed, he found it difficult to walk around normally even when not at work.

25 The respondent wore the comfortable walking shoes for two weeks but was then required to resume use of the steel capped boots. The primary judge found that the respondent suffered significant pain whenever he had to wear the steel capped boots. He was able to holiday in Tasmania for three weeks in Christmas 1999 but wore sandals and soft shoes. During this period he had no real problems with his foot. However, when he returned to work in January 2000, symptoms of pain and discomfort returned within a short time.

26 The respondent consulted the appellant again in March 2000. The appellant expressed the opinion that two of the respondent’s toes were closer together than normal and sought to pull the toes apart to create a gap. The respondent modified his footwear and had orthotic inserts made by a podiatrist. This apparently improved the position until July 2000 when he developed symptoms on the right side of the foot. He returned to his local medical practitioner who arranged for x-rays to be taken as well as a bone scan. These investigations revealed that the respondent had developed further stress fractures in his foot.

27 The respondent sought and obtained a second opinion from a Dr Breit in October 2000. After receiving Dr Breit’s advice, the respondent arranged for Dr Breit to operate on his right big toe. In Dr Breit’s opinion the respondent’s toe had been solidly fused. However, Dr Breit felt it was too straight and that this led to the difficulty the respondent was having walking, leaving him tending to roll off onto the side of his foot and, as a result, sustaining multiple stress fractures.

28 The purpose of Dr Breit’s operation was to elevate the respondent’s right toe. The operation was performed in November 2000. After that procedure the respondent said he was able to walk more freely and with less pain. However, the primary judge found the respondent’s medical condition did not readily improve and his psychological condition worsened, leading to the development of depression which required his admission to the St John of God Hospital.

29 By January 2001 the respondent’s foot continued to cause him difficulties. He complained of discomfort under the ball of his foot so that he tended to walk on the outer side of the foot. In March 2001 the screws Dr Breit had inserted were removed without difficulty but the respondent continued to complain of pain over the distal part of his forefoot.

30 The respondent spent further time away from work. By April 2001 when he had not returned to full time work, his employment was terminated and he went on sickness benefits. He had not performed any meaningful work from that time to the date of the trial.

31 After his employment with Corinthian Doors was terminated the respondent undertook home duties. This placed some strain on his marriage. The respondent became distant from his wife and children. He lost interest in his pre-accident hobbies and sports.

32 The respondent attended Nepean Pain Management. He described the pain in his forefoot as intermittent and made worse by weight bearing. He was taking large doses of medication. He gained weight. The pain management specialist, Dr Sundaraj, noted that he had an antalgic gait, favouring his right lower limb. Dr Sundaraj also noted that the respondent had developed a degree of pain along the lateral calf muscles into the thigh which he said was due to the compensating gait. Dr Sundaraj concluded “this is purely a mechanical pain factor associated with a secondary reactionary depression”.

33 The respondent consulted Dr Searle, an orthopaedic surgeon, who expressed the opinion, which the primary judge accepted, that:

“With the joint being fused in zero degrees of extension, the biomechanics of the foot were abnormal and this led to additional stresses in other parts of the foot, leading to stress fractures as well as muscle and ligament strains and an abnormal toe proprioception. By the time the abnormal position was corrected, the damage had been done, both mechanically and psychologically, and he had lost his job. The ongoing symptoms resulting from his first operation are permanent and cause a moderately severe degree of disability in relation to the function of his right foot. Because of this, he is permanently unfit for his pre-injury occupation, and is indeed unfit for any form of employment which requires him to be on his feet for even a moderate amount of time, go up and down stairs or steps or slopes a lot, kneel or squat, carry weights or even have average agility.”

34 Dr Searle expressed the opinion that because of the damage to the other joints in the respondent’s foot degenerative changes would progress and increase with the passage of time.

35 The primary judge referred to two reports from Dr Negrine, the appellant’s expert. In his report of 27 November 2001 Dr Negrine expressed the opinion that “certainly the patient’s symptoms were as a result of the complication of the original surgery …”. In a further report dated 30 January 2002 Dr Negrine noted:

“Mr Anderson is currently in quite a deal of pain. The reason for this pain is not immediately apparent. He brings numerous x-rays which show that his fusion has united solidly. Mr Anderson states that this pain is different to the pain he suffered prior to the surgery, and indeed the operation performed by Dr Chung relieved his arthritic pain, which he said was present day and night. I feel clearly that Mr Anderson has a complex regional pain syndrome with chronic pain behaviour and secondary depression. By Mr Anderson’s own admission, revision surgery performed by Dr Breit put his toe in a better position but did not substantially alter his pain. I do not feel that Dr Breit’s operation made Mr Anderson’s pain any worse, however.”

36 The primary judge accepted Dr Negrine’s opinion that Dr Breit’s operation did not make the respondent’s pain any worse. He also accepted the respondent’s evidence that in many ways there was an improvement in his position, I infer, after the operation Dr Breit performed.

37 The primary judge found the respondent was a truthful witness. He found that the respondent’s pre-surgery health was relatively good, despite a number of matters put to him in cross-examination which, the primary judge concluded, had not adversely affected the respondent’s ability to work and to enjoy his home life and hobbies. He also accepted the respondent was happy in his job prior to the accident. He had been a foreman for about fifteen years and was responsible for up to thirty people. His weekly income fluctuated between $500 and $600 net depending upon the work which was being performed.

38 The primary judge found that following the surgery performed by the appellant and the subsequent treatment, the respondent continued to have serious pain and discomfort in his right foot which affected him most days and interfered with his enjoyment of almost every aspect of his daily life. He found that the respondent had restricted mobility and needed to take regular pain medication. In addition the respondent had developed a major depression.

39 The primary judge referred to evidence given by Dr Pickering, a psychiatrist, diagnosing a “major depressive episode”. In Dr Pickering’s opinion, there was a “significant causal relationship” between the complications of his foot surgery and his first episode of depression. The appellant had submitted that the respondent’s emotional and psychological difficulties were caused by pre-operative events. The primary judge rejected that contention, finding the pre-operative events were “of a relatively minor degree”. I will deal with this finding later when considering the appellant’s causation grounds of appeal.

40 While the primary judge noted that the respondent’s psychological condition had improved, he found it remained a significant feature of his life. He also found that situation would persist while the respondent continued to have pain and discomfort from his right foot. He found that the pain in the respondent’s right foot would continue and he would remain disabled indefinitely. Accordingly, his Honour concluded that the physical and psychological problems which had occurred since the operation were caused by the appellant’s breach of his duty of care.

41 The primary judge awarded the respondent $75,000 general damages. The appellant does not complain about that figure.

Residual earning capacity: at trial (ground 4)

42 When dealing with the issue of residual earning capacity the primary judge noted that the appellant’s submissions were “restricted to the suggestion that [the respondent] had a residual earning capacity because of skills in sign writing, drawing and data entry”. Based on this the appellant had argued that the respondent had a residual earning capacity of about 70% of his pre-accident capacity.

43 In his written submissions to the primary judge the respondent had contended that he had a residual earning capacity of no more than 10% based on the proposition that he continued to have significant cognitive difficulties because of depression and a severe psychological reaction. The respondent’s counsel argued that the respondent’s limited education, work history, family and social background and natural makeup were strong contra-indicators to successful vocational training and obtaining any clerical or administrative work.

44 The primary judge approached the issue of loss of earning capacity on the basis that the respondent had lost an opportunity for full time employment. He took that approach because he concluded that the respondent had some capacity for work greater than that for which the respondent’s counsel had contended, a capacity demonstrated by the respondent performing light work - I infer while he was still employed by Corinthian.

45 While the primary judge referred with general approval to the respondent’s submissions on this issue, he did not accept his submission that the respondent’s earning capacity was 10% of his pre-surgery capacity. He assessed the respondent’s residual earning capacity as 30% of his overall capacity.

46 He awarded the respondent $40,000.00 for past wage loss.

47 The primary judge accepted the respondent’s submissions that he had a serious restriction on his earning capacity by virtue of his foot problem and depression. He concluded that the respondent would have been earning $650 per week if his earning capacity had not been damaged and reduced that by 70% to take into account the effects of the operation. On that basis, using the 3% tables, and accepting the respondent’s submission (to which the appellant did not demur) that the respondent would have worked until 65, he reached a figure for future economic loss of $387,068.50. He reduced that amount by 25% for vicissitudes having regard to the respondent’s “pre-accident medical condition, although only relatively minor” and his conclusion that because of the respondent’s general determination and ambition he was likely to obtain some relevant work. Accordingly, he allowed the sum of $290,000 rounded off for future economic loss.

Residual earning capacity: the appellant’s submissions

48 The appellant submitted that the primary judge’s finding that the respondent’s earning capacity was something in the order of 30% of his overall capacity was not a damages finding of a discretionary or quasi-discretionary nature but, rather, must be seen as a conclusion based upon the factual material before the primary judge. Accordingly, the appellant submitted the ordinary principles applicable in an appeal from a finding of fact applied, rather than the principles which apply in respect of appeals from damages verdicts involving discretionary or quasi-discretionary considerations. The appellant referred to Moran v McMahon (1985) 3 NSWLR 700 at 722 – 723; Harper v Bangalow Motors Pty Ltd (NSW Court of Appeal, unreported, 24 July 1990) and Diamond v Simpson (No 1) [2003] NSWCA 67 at [16]; (2003) Aust Torts Reports ¶81-695 at [16].

49 The appellant identified the primary judge’s process of reasoning and relevant fact findings on this issue as having been reached, in essence, by a three-stage process:

“(a) The trial judge found that more likely than not the respondent’s pain would continue and that he would remain disabled indefinitely. His Honour then (Red 40) referred to the competing submissions of the parties on this aspect, namely the appellant’s submission that the respondent had a residual earning capacity of about 70% and the respondent’s submission that the residual earning capacity was about 10%. He then expressly stated his preference for the approach adopted by the respondent namely that the respondent continues to have significant cognitive difficulties because of depression, that he has a severe psychological reaction which, having regard to his pre-surgery persona, family and social background, made it unlikely that he would be able to earn more than 10% of his earnings that he would have achieved if he had remained in his pre-injury employment;
(b) His Honour then, with respect, jumps to the finding that the proper approach is to determine the matter on the basis that the respondent had lost an opportunity for full time employment because he had demonstrated in performing light work, some capacity for work, indeed a greater capacity than that which was contended for by the respondent. No reasons are given for this conclusion;
(c) Notwithstanding his earlier stated preference for the respondent’s approach, and without any further reasoning or findings of fact, His Honour arrives at the conclusion that the respondent’s residual earning capacity was something in the order of 30% of his overall capacity.”

50 The appellant complained that these reasons did not demonstrate a process of logic in arriving at the residual earning capacity figure of 30%.

51 The appellant submitted that the evidence warranted a finding by the primary judge that the respondent had a residual earning capacity substantially in excess of 30% and in the order of about 70% of his pre-injury capacity. He complained that the primary judge appeared to have ignored, overlooked or paid insufficient regard to the following evidence:

“(a) The respondent’s own evidence at trial where the respondent stated:
(i) That he is now able to walk freely;
(ii) That the pain in the toe is much better although [he] still finds it difficult to walk or stand for a long time and experiences pain in his foot after a long time of being on his feet;
(iii) That [he] was currently doing a computer course at TAFE for the purpose of helping with job prospects and that his progress with that course was ‘very good’;
(iv) That [he] ‘most definitely’ wanted to get work if he could;
(v) That in late December 1999 when [he] went on a family holiday to Tasmania he had a pretty good time, with no discomfort, was able to move around normally and able to do those things which one would normally do on a family vacation;
(vi) That [his] capacity, as at the date of giving evidence, was about the same as it was when he was in Tasmania and had been so for the last few months;
(vii) That [he] could walk for an hour and a half and comfortably stand for about the same period of time;
(viii) That [he] felt that he could do work such as data entry, or computer data entry although he had not sought such work at the time of the trial;
(ix) That [he] also believed that he could work in the field of training others in occupational health and safety but had not to date sought such work because a pre-requisite of the work was doing a TAFE course or getting a diploma and the cost of doing that was ‘exorbitant’.”

52 The appellant complained that had the primary judge taken proper account of this evidence, he could not reasonably have come to a finding that the respondent’s residual earning capacity was only in the order of 30%.

53 The appellant also contended that the respondent’s evidence disclosed that his situation was much better from about September 2002 than it had been when he gave histories to various doctors. The appellant submitted that the primary judge appeared to have ignored or overlooked the fact that the experts’ reports relied upon by the respondent predated the apparent improvement in the respondent’s condition and that none of those experts were called to give oral evidence to confirm, update or alter their views in the light of the evidence given by the respondent at trial.

54 The appellant complained that the primary judge gave no, or virtually no reasons for his finding in relation to residual earning capacity. He submitted that failure to give proper reasons making it plain what his findings of relevant fact were, the evidence relied upon and the reasoning process leading to his conclusions, was in itself an appellable error. The appellant referred to Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 280 – 281; Vasailes v Robertson [2002] NSWCA 177 at [15] and Richey-Lowe v Australasian Conference Association Limited t/as Sydney Adventist Hospital [2001] NSWCA 447 at [34].

Residual earning capacity: the respondent’s submissions

55 The respondent noted that the primary judge accepted the respondent as a truthful witness and that he also accepted the opinions of Drs Searle and Breit. He submitted that findings made by the primary judge relevant to the issue of residual earning capacity were the following:

“(i) Dr Searle’s opinions that the respondent’s condition is permanent and that the damage had been done both mechanically and psychologically from the operation performed by the appellant;
(ii) Dr Negrine’s opinion that the subsequent operation performed by Dr Breit did not make the respondent’s pain any worse;
(iii) Following the surgery performed by the appellant and his subsequent treatment the respondent continued to have serious pain and discomfort in his right foot which affects him most days and interferes with his enjoyment of almost every aspect of his daily life. He has restricted mobility, needs to take regular pain medication and has developed a major depression;
(iv) Any pre-surgical problems suffered by the respondent were of a relatively minor degree and did not adversely affect him in his social or working life;
(v) The respondent’s psychological condition has improved but nevertheless has remained a significant feature of his life and will remain so while he continues to have the pain and discomfort from his right foot. It is more likely than not that the pain will continue and he will remain disabled indefinitely;
(vi) The physical and psychological problems which have occurred since the operation were caused by the breach of duty of care of the appellant and warrant the award of substantial damages.”

56 The respondent submitted that the appellant’s submission that it was incumbent upon the primary judge to make plain what his findings of relevant fact were, what was the evidence relied upon and what was the reasoning process which led to his conclusion was an unwarranted extension of the principles in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 as cited in Richey-Lowe v Australasian Conference Association Limited t/as Sydney Adventist Hospital [2001] NSWCA 447. The respondent contended that the primary judge was required to articulate the essential grounds upon which his decision rested but that the discharge of that obligation did not require lengthy or elaborate reasons, referring in this respect to Soulemezis v Dudley (Holdings) Pty Limited per McHugh JA at 280. In any event, the respondent argued, the primary judge gave quite detailed reasons for his ultimate conclusion that the respondent had a 30% residual earning capacity.

57 The respondent also submitted that there was no want of adequate reasoning supporting the primary judge’s findings nor lack of logic in his approach. The respondent noted that the competing submissions the primary judge had entertained were that the respondent had either about a 10% or a 70% residual earning capacity. The primary judge had discussed the submissions in his reasons and explained why he was persuaded by the submissions on behalf of the respondent, as well as explaining why he did not accept the respondent’s ultimate submission that the respondent only had a 10% residual earning capacity. The respondent submitted that there was no error in the primary judge’s approach or his reasons for adopting that approach.

58 The respondent pointed out that the appellant’s submissions on appeal were more specific than those put to the primary judge. He further submitted that the primary judge had addressed the issues raised by the appellant at trial on the issue of residual earning capacity in the following manner (I have included the primary judge’s findings to which the respondent’s references relate):

“(a) Submission: Contrary to the respondent’s evidence in chief that his prior health was generally good he had been suffering with gastrological complaints and suffering from and being treated for depression for a number of years.
Response: Delaney DCJ found that his pre-surgery health was relatively good despite “a number of matters referred to in cross-examination”.
(b) Submission: After surgery the respondent was diagnosed as suffering from ADHD being a previously undiagnosed disorder he had had for many years.
Response: Delaney DCJ concluded that this was a relatively minor matter compared with the combination of his physical and psychological disabilities thereafter.
(c) Submission: The prior medical history given to Dr Pickering did not include the respondent’s history of depressive episodes and the doctor’s opinion with regard to causation should be read with care.
Response: Delaney DCJ rejected the submission that the respondent’s psychological difficulties had their aetiology in pre-operative events, concluding any previous problems were “of a relatively minor degree”.
(d) Submission: Following the negligent surgery the respondent’s foot recovered to where he had considerable periods without complaint to his general practitioner, ending only when he commenced to wear steel capped boots.
Response: Delaney DCJ found that there was ample evidence that the fusion had been incorrectly performed and there had been a failure to advise of the necessity of undertaking a corrective osteotomy when it was clear that the initial procedure did not work.

(e) Submission: Following the wearing of steel capped boots the respondent’s complaints did not mirror the problems he was experiencing in April 1999 with his big toe but instead became related to pain in the lateral side of his right foot.
Response: Delaney DCJ dealt with this matter. [I deal with this matter when dealing with the causation issue]

(f) Submission: The respondent was able to ride a pushbike by September 1999 and have a holiday in Tasmania in late 1999-early 2000 apparently without complaint.
Response: Delaney DCJ dealt with the Tasmania holiday. While he did not expressly refer to the return to pushbike riding the respondent’s evidence was that he no longer rides a pushbike.
(g) Submission: It was submitted to the primary judge that the respondent’s level of recovery was to be compared with his state of health as at April 1999 when he couldn’t walk the short distance between his house and the station.
Response: This submission overlooks the following facts:

· the surgery recommended and carried out by the appellant was supposed to address the respondent’s pre-surgical problems, not make them worse;

· Delaney DCJ accepted the respondent’s evidence, based on what the appellant told him, that his toe would be fixed at an angle whereby he could walk normally;

· his Honour found that after the respondent returned to work and was wearing steel capped boots he suffered stress fractures across the foot due to improper angulation of the toe;

· his Honour accepted Dr Searle’s evidence that the respondent’s mechanical and psychological damage resulted from the negligent operation performed by the appellant;

· his Honour found that the incorrect performance of the fusion was compounded by the appellant’s failure to advise remedial surgery when it was clear the initial procedure did not work.”

59 The respondent submitted that the primary judge had found that his physical condition was very much worse due to the negligently performed operation and that he had in addition developed a serious psychiatric condition and that both were likely to be permanent.

60 Although, as I have said, the respondent complained that the appellant’s factual submissions on this issue on appeal went beyond the matters put to the primary judge, the respondent dealt with those issues in detail. In response to the appellant’s submission that he was able now to walk freely the respondent drew attention to evidence that he still experienced pain in the other toes of his right foot after “a longer time of being on his feet”. In response to the appellant’s reference to the respondent’s evidence that the pain in his toe was much better, the respondent referred to his evidence that he could not wear steel capped safety boots for a normal day nor could he walk in sand. In response to the appellant’s references to the computer course he was undertaking, the respondent noted that he was very slow at typing – able to do one or two fingers at a time. Referring to the appellant’s reference that he was able to move around normally on a family holiday in Tasmania, the respondent noted that he was wearing only sandals and joggers at the time and, indeed, that after he returned to work from the Tasmania holiday he suffered serious problems and could not continue. Finally, in response to the appellant’s reference to his evidence that he could work in a field of training others in occupational health and safety, the respondent noted there was no evidence that any such work was available in the marketplace for a person of his age and background even if uninjured.

61 Referring to the appellant’s complaint that the respondent’s doctors had not been called to give evidence which took into account the respondent’s evidence of his situation having improved from September 2002, the respondent noted that submission was not put to the primary judge and, further, that none of the respondent’s medical experts were required for cross-examination. The respondent submitted that if the appellant considered the respondent’s medical experts might change their opinions if informed of the respondent’s evidence then it was incumbent upon the appellant to require those experts for cross-examination and put such matters to them.

62 While the respondent accepted that the relevant principles for a review of the primary judge’s decision on residual capacity were set out in Diamond v Simpson (No 1), above, at paras 15 – 17, he also submitted that the issue was whether the primary judge’s determination was open to him, not that error could be shown “simply because another mind might have come to a different determination” referring to Buller v Black [2003] NSWCA 45; (2003) 56 NSWLR 425 at [96] per Giles JA (Ipp JA agreeing).

Residual earning capacity: consideration

63 The respondent correctly submits that the appellant’s submissions on appeal on this issue are more extensive than those put to the primary judge. It is clear that the primary judge regarded the appellant’s submissions on damages as being “restricted” in the manner to which he referred. Consistently with the principles to which I have earlier referred, the appellant would not ordinarily be permitted to conduct his appeal on this issue in a manner which differed from the approach he took at trial.

64 It is apparent, as the respondent submitted, that the primary judge dealt with the matters of which the appellant complained at trial.

65 Further, in my view, the primary judge’s reasoning process is disclosed, particularly when it is appreciated that findings on which he based his conclusion that the respondent had a residual earning capacity of “something in the order of 30% of his overall capacity” were interspersed through the judgment.

66 In other words, rather than the primary judge’s process of reasoning to his finding of residual earning capacity being the three-stage process for which the appellant contends, it is, in my view, properly understood by having regard to his earlier findings. These were that the respondent’s physical condition was permanent, that he had continued pain and discomfort which interfered with his enjoyment of every aspect of his daily life and that his psychological condition remained a significant feature and would persist while he continued to have the pain and discomfort from his right foot. As his Honour had concluded that it was more likely than not that the pain and discomfort in the respondent’s right foot was permanent, it followed that his psychological condition would also persist.

67 It is apparent, as the respondent submits, that his Honour took into account the matters concerning the respondent’s physical condition to which the appellant referred but concluded that they did not detract from his conclusion that the respondent’s residual earning capacity was of the order of 30%.

68 In my view, the primary judge’s conclusion concerning the respondent’s residual earning capacity discloses no appellable error.

69 I would reject this ground of appeal.

Vicissitudes (ground 3)

70 The appellant complains that the primary judge erred in allowing only 25% for vicissitudes in assessing damages for future economic loss.

71 The respondent objected to the appellant raising this ground of appeal on the basis that the appellant had addressed no submissions to the primary judge as to the discount for vicissitudes which should be applied. In such circumstances, the respondent submitted, the appellant must be taken to have been content at the trial for the “usual” discount of 15% to apply.

72 The appellant did not dispute the proposition that 15% is the conventional starting point for an allowance for vicissitudes: see Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 per Beazley JA (with whom Spigelman CJ, Powell JA and Stein JA agreed); State of New South Wales v Moss [2000] NSWCA 133 at [32]; (2000) 54 NSWLR 536 at 544 [32] per Mason P (with whom Handley JA agreed), see also Heydon JA at [100].

73 Mr Neil SC pointed out that before the primary judge the respondent’s written submissions on damages included a table setting out the calculations the respondent contended the primary judge should adopt on heads of economic loss. The calculation concerning his probable earnings had he not been injured was based on the 3% tables on the basis of 10% residual earning capacity - the percentage for which the respondent contended. The calculation provided for that sum to be reduced by 15% for vicissitudes. In contrast, the appellant’s written submissions to the trial judge had not addressed the allowance for vicissitudes at all.

74 Despite the respondent’s submissions allowing the “usual” 15% deduction for contingencies, the primary judge departed from that figure, increasing it to 25%. His judgment does not explain why he took that course. The respondent does not complain about the 25% figure even though the consequence is that, in effect, the percentage allowed for his residual earning capacity was increased from 30% to 40% (i.e. by the “extra” 10% deducted for vicissitudes).

75 The Court permitted Mr Sullivan QC to address on the issue of the deduction for vicissitudes, but reserved its opinion on whether it would permit this ground of appeal to be pursued.

76 Mr Sullivan QC argued that this was “the simple case where a submission was overlooked” and that the fact that no submission was put at trial about vicissitudes did not preclude the appellant agitating the matter on appeal. He submitted that it was a fundamental obligation of the primary judge in assessing damages “assisted or unassisted by counsel to reach a correct conclusion as to vicissitudes”. He next contended that it was incumbent upon the primary judge to determine the amount to allow for vicissitudes in accordance with established principles and also to express a reasoning process so that this Court could satisfy itself that his discretion had been properly exercised. No ground of appeal complained that the primary judge’s reasons on the issue of vicissitudes were wanting.

77 Mr Sullivan QC submitted that the respondent would not suffer prejudice if the appellant was allowed to pursue this ground of appeal. He submitted that the appellant’s failure to address the matter at trial should not be a bar to the matter being agitated on appeal. He submitted that to not permit the matter to be agitated on appeal would be contrary to the High Court’s decisions in Coulton v Holcombe and Metwally v University of Wollongong (No 2).

78 Mr Sullivan QC acknowledged, however, that even if the appellant was permitted to argue this ground of appeal, he faced the hurdle that the percentage allocated to vicissitudes involved a discretionary decision and was, therefore, subject to the principles of review of such decisions.

79 Mr Neil SC submitted that the respondent would be prejudiced if the appellant was permitted to argue this ground. He argued that if the appellant had included in its written submissions a contention that the primary judge ought to have allowed 35% to 40% by way of vicissitudes on the bases submitted in this Court, then the respondent would have had to consider whether to call any further evidence to seek to meet the arguments the appellant advanced. Mr Neil SC could not identify the further evidence which might have been called, saying that it was now a matter of speculation. He also said that if the issue had been raised at trial, he might have accepted the primary judge’s invitation to make oral submissions. Mr Sullivan QC did not challenge the respondent’s submission that if the point had been raised below, the course of the trial may have been different.

80 In Sullivan v Gordon, above (at [89]), having referred to the fact that “[it] is accepted that the ‘usual deduction’ for contingencies is 15%, a percentage accepted by the High Court as ‘the practice’ in New South Wales”, Beazley JA said that figure was “subject to adjustment up or down to take account of the plaintiff's particular circumstances". In State of NSW v Moss, above, Heydon JA said at [100], “15% is the starting point, and, indeed, as the figure used in most cases, usually the finishing point”. His Honour also acknowledged that that allowance “can be departed from in an appropriate case”.

81 A discount for contingencies or vicissitudes takes account of “matters which might otherwise adversely affect earning capacity”: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 497 per Dawson, Toohey, Gaudron and Gummow JJ. An assessment of the allowance which should be made for vicissitudes is a quintessentially impressionistic exercise. There is no hard and fast rule governing the approach to be taken to its calculation: see General Motors–Holdens Pty Limited v Moularas (1964) 111 CLR 234 at 350 per Menzies J.

82 It is plain that allowances for vicissitudes have not been immune from review on appeal, despite the impressionistic nature of their calculation. However, the Court should not, in my view, entertain an appeal seeking to challenge the allowance for vicissitudes where the appellant advanced no argument before the primary judge as to why the “usual deduction” should be departed from.

83 Mr Sullivan QC’s submission that this Court should entertain the appellant’s complaint about the allowance for vicissitudes albeit that the submission was “overlooked” at trial gives no weight to the principles concerning when a Court will permit a party to raise a new case on appeal to which I have already referred. There are no exceptional circumstances which would warrant this Court permitting the appellant to depart from the manner in which he had conducted the case at trial.

84 The respondent was, in my view, entitled to feel aggrieved that the primary judge increased the deduction for vicissitudes despite the appellant’s silence on the point. He would be additionally and justifiably aggrieved in the sense to which the High Court referred in Whisprun v Dixon if the appellant was permitted to submit that an even greater amount should be deducted for vicissitudes. I also accept Mr Neil SC’s submission that the course of the trial may have differed if the appellant had argued for a higher deduction for vicissitudes. At the very least the respondent would have been able to make detailed submissions to the primary judge seeking to persuade him to accept the usual figure. Even if this did not dissuade the primary judge from the course he took, his reasoning process would no doubt have been exposed, thus enabling this court properly to exercise its rehearing function. It would, in my view, be inimical to the due administration of justice to allow this point to be raised on appeal.

85 This ground of appeal should be rejected.

86 I would add that, in my view, where the defendant’s counsel does not demur to the plaintiff’s submission that the discount for vicissitudes should be the usual figure of 15%, the primary judge should not depart from that figure without giving the parties notice of his or her intention to do so and inviting them to make submissions about the appropriate percentage for this factor.

Causation (grounds 1, 2 and 5)

87 The appellant submits that the primary judge erred in finding that the respondent’s continuing problems and disabilities were caused by his breach of duty (ground 1). The appellant also complains that the primary judge gave no or no satisfactory explanation for his conclusion in this respect (ground 2).

88 Mr Neil SC said that the arguments the appellant advanced on the causation issue both in his written submissions and orally went “way beyond” the case put to the primary judge and that they ought not be entertained by the Court.

89 Mr Sullivan QC did not seek to argue in reply that the respondent’s submission was not well founded. As I have earlier said, Mr Sullivan QC acknowledged at the outset of the oral argument that there were “difficulties on the causation ground”. He did not advance any reason as to why the submissions upon which the appellant now seeks to rely were not put at trial.

Causation: at trial

90 At trial the appellant submitted that his breach of duty had not caused the physical incapacity of which the respondent complained. He sought to argue that the respondent’s stress fractures had not been caused by the angle at which his toe had been fused but, rather, by the respondent’s failure to follow advice he was given about the shoes he should wear after the operation.

91 This argument was encapsulated in the appellant’s written submissions in the following terms:

“The defendant would therefore submit that the development of stress fractures in the second, third and fourth toes of the plaintiff and restrictions caused by those stress fractures were caused by the plaintiff wearing inadequate and inappropriate footwear, such footwear not accommodating a foot which has undergone surgery and is therefore still subject to swelling. The plaintiff was warned and counselled about his footwear and the need to modify the same by both his GP, Dr Levy and the defendant.”

92 Insofar as the respondent’s psychological condition was concerned, the appellant submitted that Dr Pickering’s report of 7 March 2002 did “not record an appropriate history” because, in essence, the respondent had suffered from pre-operation depression, then said:

“On this basis the opinion of Dr Pickering as set out on page 10 of his report with regard to causation should be read with care .” (emphasis supplied)

Causation: the primary judge’s reasons

93 The primary judge dealt first with the appellant’s argument about the cause of the respondent’s psychological condition. He rejected the submission that the respondent’s “emotional and psychological difficulties [had] their aetiology in some pre-operative events” although he noted “that Dr Pickering did not have a full history of those pre-surgical work absences due to ‘depression’ or treatment of depression which took place before he had his operation”. His Honour concluded, “based on the [respondent’s] evidence, that any pre-surgical problems [the respondent] suffered were of a relatively minor degree and did not adversely affect him in his social or working life.”

94 The primary judge then turned to deal with what he described as “a significant issue on causation”, being the appellant’s argument about the respondent’s physical incapacity. After setting out the appellant’s submission, he rejected the appellant’s contention, as his Honour put it, “for reasons which I have already partly explained”. I understand his Honour’s remark to have been a reference to the following findings he had made earlier in his judgment.

95 The primary judge found that the appellant had not asked or considered what footwear the respondent was normally likely to wear each day in his job and had not taken that matter into account “in considering the manner in which he would perform the operative treatment and position the hallux” [the big toe].

96 The primary judge accepted that the pain the respondent started to experience in the right side of his foot following his return to work was the result of stress fractures across the foot apparently sustained because, as a result of his big toe being too straight (having been fused at zero degrees), he tended to roll off onto the side of his foot.

97 The primary judge found that the respondent tried to walk in the manner the appellant advised. In addition he had modified his footwear and had orthotic inserts which apparently improved his position until July 2000 when further stress fractures occurred.

98 The primary judge referred to the extract from Dr Searle’s opinion which I have set out earlier in this judgment. He noted that Dr Searle was not asked to attend for cross-examination. He concluded that Dr Searle’s opinion should be accepted. He noted Dr Negrine’s statement in his 27 November 2001 report that “… certainly the patient’s symptoms were as a result of the complication of the original surgery …”. He also referred to Dr Negrine’s report of 30 January 2002 in which (inter alia) Dr Negrine expressed the opinion that Dr Breit’s surgery had not made the respondent’s pain any worse. He accepted that opinion.

99 The primary judge also referred to passages from Dr Negrine’s report in which he expressed the opinion that the reason for the respondent’s pain was “not immediately apparent”, an opinion which was developed in a passage the primary judge extracted. His Honour then stated:

“There is no doubt that Dr Negrine was qualified to comment on the various matters on which he did comment. However, I am of the opinion that, when one takes the evidence of the plaintiff, who I accept as a truthful witness , together with that of Dr Breit and Dr Searle, that the evidence is overwhelming that the fusion was not done at 10 or 15 degrees, but more likely at zero degrees, and that this was, in the circumstances of the plaintiff’s case, a negligent performance of the operative treatment, which then led to the consequences of stress fractures, pain, discomfort and eventual psychological symptoms when the plaintiff was required to return to work wearing steel capped boots on a daily basis .” (emphasis supplied)

100 The matters to which I have referred were set out in that part of his Honour’s judgment in which he dealt with liability. However they were clearly comprehended in his reference when dealing with the cause of the respondent’s physical condition to matters he had “already partly explained”.

101 When he came expressly to consider damages, the primary judge noted that the respondent’s pre-surgery health had been relatively good but that post-operatively he had continued to have serious pain and discomfort in his right foot which affected him most days and interfered with his enjoyment of every aspect of his daily life.

102 It was at that stage of his judgment that the primary judge turned expressly to consider the appellant’s complaint that the respondent’s physical condition had not been caused by the appellant’s breach of duty.

103 After referring to the reasons he had “already partly explained” the primary judge referred to a submission made by counsel for the respondent that in assessing damages “all of the physical and psychological consequences which have befallen the plaintiff since the operation should be taken into account”. He referred to Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at 241 – 242 per Gaudron J and 278 per Kirby J. He also referred to Shead v Hooley [2000] NSWCA 362 at [69] where Davies AJA (with whom Mason P and Beazley JA agreed) said:

“Once it was shown that there was a failure on the part of Dr Shead to warn Mrs Hooley of the risk of gastroparesis and that Dr Shead breached his duty of care towards his patient in failing to warn her of the risk, and once it was shown that the risk eventuated, then the law as enunciated in Chappel v Hart is that the breach of the duty should be treated as materially causing or contributing to the injury unless good reason to the contrary is shown.”

104 The primary judge then concluded that the appellant had not demonstrated why his breach of duty should not be treated as materially causing or contributing to the respondent’s injury.

Causation: the appellant’s submissions

105 In this Court the appellant’s submissions on the causation issue differed substantially from those advanced at the trial.

106 Mr Sullivan QC summarised the appellant’s submission on causation as coming down to two propositions. First, to the extent to which the respondent was said to suffer pain which was organically based, the evidence disclosed no basis for concluding that was a continuing cause of any incapacity. Secondly, to the extent that the respondent suffered from a psychological condition, the only evidence upon which a conclusion that that condition was caused by the appellant’s breach of duty could be based was from Dr Searle and Dr Pickering. The appellant submitted the primary judge should not have accepted Dr Searle’s opinion as he was not a qualified psychiatrist. Insofar as Dr Pickering was concerned, the appellant submitted the primary judge should have rejected his opinion on the basis that it was fundamentally flawed because he did not have the history which was elicited in cross-examination of the respondent about pre-surgery episodes of depression.

Physical incapacity

107 Mr Sullivan QC did not develop this submission orally but relied upon his written submissions. In those submissions the appellant complained that the primary judge fell into appellable error in not taking into account either the different nature of the pain of which the respondent was complaining at the date of trial or the views of the experts in that regard. The appellant also argued that on the expert evidence there was no physical or organic link between the pain about which the respondent complained from the time of Dr Breit’s operation to the time of trial and the operation performed by the appellant.

108 The appellant undertook a detailed examination of the evidence to seek to make good this ground of appeal. He drew attention to the respondent’s evidence at trial that prior to the operation the appellant performed the respondent’s pain was in his big right toe. After the appellant’s operation but before Dr Breit’s procedure the respondent complained that when he walked on the flat of his foot he had pain in his big right toe, but when he walked on the side of his foot he had pain in the right side. He had never experienced pain in the right side of his foot before the operation. This “new” pain, the primary judge found, was a result of the stress fractures.

109 The appellant then contended that following Dr Breit’s corrective osteotomy on 6 November 2000 there was no physical or organic reason for the respondent to feel pain in his big toe and, indeed, submitted that he gave no evidence that such pain continued.

110 The appellant argued that once the stress fractures had healed (as to which there was, apparently, no controversy) there was no physical or organic reason for there to be pain associated with them. The appellant drew attention to Dr Breit’s report of 2 April 2001 in which he said that the respondent continued to suffer “inexplicable forefoot pain” and Dr Negrine’s opinion of 30 January 2002 that “the reason for [the respondent’s] pain is not immediately apparent”.

111 The appellant criticised the primary judge’s reliance upon Dr Searle’s opinion that the respondent’s pain was caused by the operation. He argued that there was no evidence of any muscle or ligament strains or any abnormal toe proprioception as Dr Searle had opined. He noted that none of the other experts had referred to the existence of any such symptoms. The appellant contended that “the evidence established that the stress fractures healed as would, in time, … any ‘muscle and ligament strains’.”

112 The appellant also complained that Dr Searle did not explain the reasoning process for his opinion that by the time the abnormal position of the respondent’s toe had been corrected “the damage had been done, both mechanically and psychologically”. The appellant submitted:

“If Dr Searle’s conclusions are correct then it is astonishing that experienced surgeons such as Dr Breit and Dr Negrine did not think of this reason for the continuing pain but rather continued to be bewildered or perplexed by it.”

113 The appellant submitted that the primary judge fell into appellable error in relying upon Dr Searle’s opinion. He argued that the primary judge could not and should not have accepted Dr Searle’s opinion the basis of which was unexplained. He referred to Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [59] – [60], [67], [68], [70], [71] – [72], [79], [82], [85] – [86]. Accordingly, the appellant submitted that the primary judge should have given Dr Searle’s evidence little or no weight rather than relying upon it in apparent preference to the evidence of Dr Breit and Dr Negrine.

114 I have set out the appellant’s submissions on the cause of the respondent’s physical incapacity to demonstrate the marked difference between the case advanced on appeal on this issue and that advanced at trial. The complaint about there being no “physical or organic link” was not raised at trial. While a submission was made at trial that Dr Searle’s opinion about the causal connection between the angle of fusion and the respondent’s stress fractures should not be accepted having regard to the appellant’s evidence on this issue, there was no other challenge to Dr Searle’s reports. There was no submission that Dr Searle’s opinion were subject to the fundamental flaws which the appellant now seeks to agitate.

Psychological condition

115 The appellant submitted that the primary judge should have rejected Dr Pickering’s evidence about the cause of the respondent’s psychological condition because it was based on a thesis of a close temporal relationship between the development of the respondent’s mood disorder and the onset of excessive pain following the surgery performed by the appellant. Mr Sullivan QC developed an elaborate submission in which he sought to demonstrate that Dr Pickering’s opinion could not be supported when one had regard to the history elicited from the respondent in cross-examination of preoperative depression.

116 The appellant also submitted that to the extent that the primary judge may have relied upon Dr Searle’s opinion about the causative link between the respondent’s psychological condition and the appellant’s operation, again, the reasons for that opinion were not disclosed. The appellant contended that the opinion suffered from the fundamental defect that Dr Searle, as an orthopaedic surgeon, was expressing an opinion outside his area of expertise. The appellant referred to HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [40], [44] and Makita v Sprowles, above, at [79], [85] – [86].

117 Again, these arguments were not advanced at trial.

Causation: the respondent’s submissions

118 As I have noted, the respondent’s primary submission was that the Court should not entertain the appellant’s causation argument as formulated on appeal. Nevertheless, sensibly, the respondent addressed the appellant’s arguments.

Physical incapacity

119 Mr Neil SC submitted that the primary judge had been conscious of the difference between the pain the respondent suffered before and after the surgery the appellant performed – one reason for that difference being the stress fractures which developed and were, on the primary judge’s findings, caused by the incorrect fusion.

120 He drew attention to the respondent’s evidence that the pain in his toe was “much better”, not that it had ceased altogether. He also pointed out that Dr Breit’s comment that the respondent had “inexplicable forefoot pain” had to be read in the context of Dr Breit’s report of 27 March 2001 in which he stated:

“This gentleman had his great toe arthrodesed in a poor position and subsequently had a lot of problems with stress fractures and pain resulting in major difficulties with his employment. I osteotomised the arthrodesis and it united quite well, but he continued to have pain which interfered with his ability to walk.”

121 Further, in his report of 12 February 2002, Dr Breit noted that the respondent’s initial complaint was that his toe felt too straight post-operatively so that he could not push off normally and was walking on the side of his foot. Dr Breit expressed the opinion that:

“This is the most important dynamic assessment of the foot. If the patient is unable to walk properly the position is probably unsatisfactory.”

122 Dr Breit had also recorded the respondent’s further complaint of stress fractures as a result of his abnormal gait pattern and that his pain was from the lateral aspect of the foot and opined:

“It was mechanical in nature being exacerbated by activity and alleviated by rest and elevation. This was due to his gait pattern.”

123 The respondent also drew attention to Dr Negrine’s opinion as to causation which the primary judge accepted that:

“I feel that certainly the patient’s symptoms were as a result of the complication of the original surgery …”

124 Finally, in relation to Dr Negrine, the respondent drew attention to his report of 30 January 2002 in which he recorded a history from the respondent that he did not suffer pain while at rest but did suffer pain with activity. The pain occurred in the region of the great toe and on the dorsum of the foot extending to the lesser of metatarsal heads. The respondent had stated that he had suffered from that pain every day and that it was exactly the same when compared to six months before.

125 The respondent submitted that the primary judge was entitled to accept Dr Searle’s opinion especially as it was unchallenged either by objection to its admission or by any cross-examination. The respondent also contended that Dr Searle’s opinions were not tainted by any inadequacy of reasons, incomprehensibility or irrationality so as to fall short of the principles identified in Makita (Australia) Pty Ltd v Sprowles.

126 The respondent argued that Dr Searle had concluded that the joint of the big toe was fused in the wrong position, resulting in abnormal biomechanics of the foot which led to additional stresses in other parts of the respondent’s foot and, in turn, led to stress fractures as well as muscle and ligament strains and abnormal proprioception. The respondent submitted that Dr Searle’s statement that “by the time the abnormal position was corrected the damage had been done” was easily understood as meaning the abnormal position had caused the additional damage of the stress fractures, causing severe pain which prevented the respondent from working, leading him to being sacked and developing severe depression.

Psychological condition

127 The respondent pointed out that the appellant’s argument differed from that advanced at trial where the argument had been that Dr Pickering’s report should be “read with care”, not that it should be rejected.

128 Insofar as the appellant attacked Dr Searle’s opinion concerning the respondent’s psychological condition the respondent made two submissions. First, he argued that it was a matter of general knowledge in the community that severe pain, particularly if prolonged, could cause emotional symptoms. He contended that any qualified doctor was able to express an opinion on such a matter. Secondly, the respondent submitted that, in any event, Dr Searle’s opinion was consistent with Dr Pickering’s opinion which the primary judge accepted. The respondent noted there was no contrary psychiatric evidence.

129 The respondent drew attention again to the fact that, before the primary judge, the appellant had not objected to the admission of Dr Searle’s report nor sought to cross-examine him. He argued that if the appellant wished to rely upon evidence of pre-operative depression given by the respondent under cross-examination as affecting Dr Pickering’s opinion, the doctor should have been cross-examined.

Causation: consideration

130 The case the appellant seeks to advance on causation on appeal is, subject to one matter, entirely different from that which was advanced at trial. The argument advanced at trial that the cause of the respondent’s physical incapacity was his failure to follow advice, which the primary judge understood to be a “significant issue”, was abandoned. The argument concerning treating Dr Pickering’s opinion “with care” was elevated to the proposition that his opinion ought to have been rejected.

131 The appellant did not submit that there were any exceptional circumstances which could justify him raising new arguments on the causation issue. He did not suggest that there were any reasons why the arguments were not advanced at trial. Indeed, as I have earlier noted, Mr Sullivan QC frankly acknowledged that this aspect of the appeal had its difficulties.

132 The respondent’s analysis of the evidence on the issue of the cause of his physical incapacity demonstrates that there was substantial material to which the respondent could point to resist the appellant’s argument. It serves, too, to underline the proposition that the issue should have been fought, in the first instance, at the trial, so that the primary judge could have brought to bear in its determination all the matters which he considered in reaching his conclusions on the issues which were fought. Importantly those matters would include his assessment of the respondent’s credit, upon the assessment of which a decision as to whether or not, for example, there was physical or organic reason for the respondent to feel pain in his big toe could well turn. By not raising this argument at the trial, the appellant deprived the respondent of the forensic opportunity to have the matter considered by the primary trier of fact whose advantage is renowned.

133 In my view the respondent’s submission that this Court ought not entertain the appellant’s arguments on causation to the extent they differ from those advanced at trial should be accepted. It would be inimical to justice, as the High Court said in Whisprun v Dixon, to permit these points to be raised.

134 This is particularly the case where none of the experts whose opinions the primary judge accepted were cross-examined. The difficulties which that approach occasions have been referred to in recent judgments of this Court: see Ram v Oib [2003] NSWCA 223 at [3]; (2003) 39 MVR 72; Brazel v Nicholls [2003] NSWCA 387. In the latter case, Tobias JA (with whom Meagher JA and Palmer J agreed) pointed out (at [70]) that in circumstances where medical reports are tendered without cross-examination and are “based on histories which are found to be inaccurate”, the primary judge is left to deal with the case as presented by the parties. In such circumstances, his Honour observed, questions of onus become important. In Larson v Commissioner of Police [2004] NSWCA 126 at [48] Tobias JA (with whom Mason P and Santow JA agreed) referred again to the difficulties which arise where there is no cross-examination of the medical practitioners and observed “[t]he [primary] judge can probably do no more than decide the case by reference to whether the moving party has discharged the onus of proof”.

135 Once the respondent had made out a prima facie case that his psychological incapacity resulted from the appellant’s negligence, the onus of adducing evidence that his condition was the result of some pre-existing disorder rested upon the appellant: Purkess v Crittenden (1965) 114 CLR 164 at 168.

136 The appellant did not advance any psychiatric evidence to contradict Dr Pickering’s opinion. Further, once the appellant was of the view that he had established through cross-examination of the respondent that there was a basis for suggesting that the history upon which Dr Pickering had based his opinion might be doubted, it was incumbent upon the appellant to cross-examine Dr Pickering to test whether that evidence would have affected the conclusion he expressed. Alternatively, had the appellant submitted that the primary judge should reject Dr Pickering’s opinion for the reasons advanced on appeal, it would have been open to the respondent to call Dr Pickering to put to him the matters relied upon by the appellant to undermine his opinion. The appellant’s failure to take the point at trial deprived the respondent of that opportunity.

137 While it might be accepted that even where an expert’s opinion is tendered without objection and is uncontradicted a Court is not obliged to accept it (Makita (Australia) Pty Limited v Sprowles, above at [89]); Smith v Advanced Electrics Pty Limited [2003] QCA 432 at [45] per Fryberg J (with whom McMurdo P agreed)), it would, as Fryberg J said, be an unusual case where the facts would justify taking such a course.

138 This is not an unusual case which would have warranted the primary judge rejecting Dr Pickering’s opinion in the absence of a submission to that effect. Indeed, it is important to recall that the appellant’s submission at trial was that Dr Pickering’s opinion about causation ought, in the light of the history elicited in cross-examination, “be read with care”. That approach is an important indication of how the appellant’s counsel at trial viewed the significance of the pre-operation history he had elicited in cross-examination on the acceptance of Dr Pickering’s opinion.

139 It is plain that the primary judge’s conclusion that the respondent’s psychological condition was caused by the appellant’s breach of duty was based primarily upon Dr Pickering’s evidence. It is not at all clear that Dr Searle’s opinion on this point played much part in the resolution of this issue. It is true that early in his judgment the primary judge referred to and accepted Dr Searle’s opinion that damage had been done to the respondent “both mechanically and psychologically”, but when he addressed this issue in the damages section of his judgment he referred only to Dr Pickering’s opinion. On the assumption he did take Dr Searle’s opinion into account it was, in my view, in any event amply supported by Dr Pickering’s opinion about whose qualifications there was no doubt.

140 The second ground of appeal complains that the primary judge gave no or no satisfactory explanation for his conclusion on the causation issue. This ground of appeal was not developed in either the written or oral submissions. In my view the primary judge gave proper reasons for his conclusion on the causation issue. His reasons did not have to be lengthy or elaborate, particularly having regard to the brevity of the appellant’s submissions on the causation issue. The essential grounds for his conclusion were articulated in a manner which enabled the appellant to exercise his rights of appeal – at least on matters which he had agitated at trial: Soulemezis v Dudley (Holdings) Pty Limited, above, per McHugh JA at 280 – 281.

141 I would, therefore, reject grounds 1 and 2.

142 The fifth ground of appeal complained that the primary judge erred in finding that the respondent’s past medical expenses were incurred as a result of the appellant’s breach of duty. The appellant did not address any written or oral submissions to this ground. Its fate clearly depended upon the appellant’s success on grounds 1 and 2. As I have rejected those grounds, ground 5 should also be rejected.

Orders

143 I propose the following orders:

(1) Appeal dismissed.

(2) Appellant to pay the respondent’s costs of the appeal.

144 CRIPPS AJA: I agree with McColl JA.

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Last Modified: 09/20/2004