Foti v Wilhelm No. Scciv-00-813

FOTI v WILHELM
[2001] SASC 120
Full Court: Doyle CJ, Nyland and Gray JJ

DOYLE CJ The plaintiff (I will refer to the parties as plaintiff and defendant) appeals against an award of damages for personal injury, made in his favour after a trial in the District Court, Foti v Wilhelm [2000] SADC 87. The plaintiff claims that the damages are inadequate. Mr Walsh QC, counsel for the plaintiff on appeal, submits that the Judge erred in failing to award damages for loss of earning capacity. It is not now disputed that the plaintiff has suffered a substantial diminution of his earning capacity. The issue on appeal is whether that diminution is attributable in law to the injury sustained in the motor vehicle accident, in respect of which damages were awarded to the plaintiff.
The Accident
There is no challenge to the Judge’s findings about the motor vehicle accident. The plaintiff was riding his motor bike on 19 October 1996. He was approaching an intersection controlled by traffic lights. The defendant, who was driving a motor car, turned across his path, failing to give way to him. The plaintiff jumped off his motor bike before an impact occurred. The motor bike slid along the road and came to rest beneath the front bumper of the defendant’s motor car. It appears that the defendant did not collide with the car or with anything else. He was able to get up and walk off the road. In fact, the plaintiff pursued the defendant on foot, she having stopped at a house a short distance away. The Judge found that the defendant was negligent. He assessed the plaintiff’s contributory negligence at 15 per cent.
The issue on appeal
The plaintiff is a man aged 31 years at trial. He is married. He was educated to year 9 standard. His work experience has been as an unskilled labourer. At the time of the accident he was employed as a packer and forklift driver at a fruit and vegetable market.
The plaintiff was taken by ambulance to hospital, but after being examined was discharged. At that stage his injuries appeared to be relatively minor. There were no broken bones or internal injuries. He was treated by his general practitioner. He had some time off work. He returned to work on about 11 November 1996. At first he was on light duties. He continued to see his general practitioner occasionally. He resumed normal duties in early February 1997.
On 21 February 1997 the plaintiff stopped working. He has not worked since then. It is not now disputed that since then the plaintiff has suffered a disability of his lumbar spine that makes him unfit for heavy work.
The issue on appeal is whether an injury sustained in the motor vehicle accident has caused that disability, or contributed to it in a way that makes the defendant liable for the disability. The Judge found that it had not.
It is convenient to record here the way in which the Judge summarised the issues at trial. This is what he said:
“(3)For his part, the plaintiff’s argument at trial was a relatively simple one: that immediately prior to the accident he had had occasional back problems, but had recovered from them and, save for having a level of back degeneration, which was not uncommon, he was otherwise symptom-free; that as a result of the accident, he injured his back to the extent of causing an annular tear in one or more of the intervertebral spaces in his lumbar spine; that after an absence of three weeks, he returned to work on light duties and then to normal duties in about early February 1997; that he continued that work, with increasing difficulty, after then and ceased on 21 February 1997 when the pain became unbearable; that he has not worked since and cannot work, and that the cause or major cause of that incapacity is the injury he suffered in the accident.
(4)The defendant’s response to that was as follows:
(a)that the accident injury was a slight one, involving no more than a lumbar sprain, that the plaintiff soon recovered from it, that he resumed his normal work duties without difficulty and that there was by then no loss of his ordinary earning capacity;
(b)that he suffered a separate injury, or injuries, at work during February 1997 and that it, or these, constituted overwhelming events which obliged him to cease his work duties on the 21^st of that month;
(c)to the extent that the plaintiff continues to suffer from any injuries and is incapacitated for heavy labouring work, this is the result of that work incident or incidents, or otherwise the pre-existing degeneration, and is not connected with the accident;
(d)to the extent that the plaintiff’s assertions are supported by various medical practitioners and other experts, their evidence cannot be relied upon, because the histories obtained by them are integral to their opinions and the plaintiff has deliberately falsified those histories by attributing his work injuries to the accident, with a view to maximising his recovery in this action.”
On appeal, influenced no doubt by the Judge’s findings, a different argument was presented by the plaintiff. In simple terms, the argument was that an injury sustained in the motor vehicle accident had predisposed the plaintiff to an injury sustained at work, or that alternatively the plaintiff’s overall disability after 21 February 1997 was attributable to a disability suffered in the motor vehicle accident and to a disability suffered in a work incident, and that as a matter of law the liability for the overall disability could be attributed to the disability sustained in the motor vehicle accident.
The Judge’s findings
The Judge delivered detailed and thorough reasons for his conclusions. It is apparent from those reasons that the Judge heard evidence from a substantial number of medical practitioners. He thoroughly canvassed that evidence. He also heard evidence from the plaintiff and other witnesses. He remarked that he had the opportunity of observing the plaintiff give evidence on a number of occasions spread over four days.
None of what might be called the primary findings made by the Judge were challenged.
It is important to bear in mind that variations in the history given by the plaintiff to the doctors whom he saw were closely scrutinised in evidence. The reason for this is that the case was one in which the opinions of the medical witnesses depended to a considerable degree on the history given by the plaintiff, and the symptoms that he described. In particular, the plaintiff’s description of his symptoms, and particularly back symptoms, immediately after the accident, in the period between the accident and his resumption of normal duties, and in the period between then and 21 February 1997, was of particular importance.
The Judge did not form a favourable impression of the plaintiff as a witness. The Judge reminded himself of the need to be careful not to read too much into differing histories taken by various medical examiners. Not all doctors take histories in the same detail, and for all sorts of reasons the history given by a patient to a doctor can vary. Nevertheless, the Judge made the following finding which is an important one.
“It is apparent that at some point in time, the plaintiff embarked upon a course of action which was aimed at minimising the significance of the accident, or even concealing its occurrence, to those doctors seeing him about the compensation claim and otherwise minimising the significance of any work injury, or, indeed, the occurrence of any work injury, to those doctors concerned with the accident claim. On all the evidence, that conclusion is inevitable and I have already traversed the passages dealing with it.
I remind myself that one should be guarded about reading too much into differing histories taken by various medical examiners - it is not evidence of itself probative, and differences can arise from the way in which the history is taken - but in this case, the differences are stark and too closely connected with the purpose of the particular consultation to be coincidental. ...”
The Judge said that he “could not feel confident in accepting much of what the plaintiff said in his evidence”. I take this to mean that the plaintiff’s evidence was coloured by a desire to attribute his disability to an injury sustained in the motor vehicle accident, and that accordingly his description of symptoms, both in evidence and to doctors examining him, was influenced by that desire.
These findings were not challenged on appeal.
The Judge then made findings about the plaintiff’s conditions. The findings are based on conclusions that he formed on the expert medical evidence.
The Judge found that the plaintiff was suffering from a back injury which affected his enjoyment of life and his earning capacity. He found that before the motor vehicle accident the plaintiff was suffering from a degenerative condition of the spine. Some earlier incidents of back pain were attributable to that condition, but at the time of the accident the plaintiff was not experiencing any difficulty with his back. However, there was medical evidence before the Judge, which again was not challenged on appeal, which would support a finding that the plaintiff’s degenerative condition was quite well advanced for a man of his age, and that it was unlikely that he would be fit for heavy labouring work, come what may, beyond the age of about 40 years.
The Judge found that the plaintiff suffered no significant injury to his back in the motor vehicle accident. He specifically rejected a claim that the plaintiff suffered a tear of the annulus of one of his lumbar discs or that he suffered any other significant injury. The Judge found that the plaintiff suffered a “mild lumbar sprain” in the motor vehicle accident. As a result of that, he found:
“ ... that after the accident the plaintiff’s back was slightly stiff, but still had a full range of movement, that over the period he saw Dr Humphreys until the end of January 1997, he continued to experience some soreness in his lumbar spine, but that it gradually improved such that he was able to resume light duties three weeks after the accident and then his normal heavy duties at some time between early January and early February 1997.”
In other words, he found that the injury was a relatively minor one, from which the plaintiff made a gradual recovery enabling him to return to work, and then to move from light duties to normal work.
On the Judge’s findings, the plaintiff resumed normal work some time between early January 1997 and early February 1997.
On or shortly before 21 February 1997, while doing lifting work in the course of his employment, the plaintiff felt lower back pain. He kept working, but the pain got worse. He consulted a doctor on Sunday 23 February 1997.
A CT scan was carried out at the doctor’s request on 24 February 1997. This showed “bulging of the annulus at the L3-4 and L5-S1 levels and a central disc protrusion at L4-5”. I have already referred to the finding that the plaintiff did not suffer a significant injury in the motor vehicle accident. That finding is buttressed by a further finding related to the CT scan. As to that, the Judge made a specific finding that “an annular tear, visible on the CT scan was the source of the plaintiff’s major symptoms”. In what appears to be a finding on the balance of probabilities the Judge went on to say, referring to the medical evidence.
“... It was considered possible, but unlikely, that such a tear could have been precipitated by the [motor vehicle] accident without producing symptoms considerably more serious than those I have found were present prior to the work injury. Further, I accept the evidence that activities of the kind undertaken by the plaintiff in his normal work duties were more likely to have caused the annular tear that was subsequently diagnosed, than were the dynamics of the accident.”
The Judge made a further finding that appears to negative any suggestion that an injury sustained in the motor vehicle accident predisposed the plaintiff to the injury that he sustained at work, or contributed in some way to the occurrence of the work injury. The Judge found:
“[T]here was no satisfactory evidence tending to show that the incident he suffered at work was caused by, or in any way connected to, the back injury he suffered in the accident. True it is that it affected the same general area of his back, but the symptoms he described, and their location, were different.”
The latter point made by the Judge is a reference to the fact that after the motor vehicle accident the plaintiff complained of symptoms on the left side of his back and in the left leg. After 21 February his complaint was of right sided symptoms. The evidence from some of the doctors was to the effect that the change in the symptoms described was significant, and itself suggested that there was no connection between the two events. Quite apart from that, as the Judge said, there was a lack of evidence establishing a satisfactory basis for linking the injury sustained in the motor vehicle accident, whatever it was, to the subsequent injury at work.
The Judge then found that since 21 February 1997, the plaintiff had suffered a 15 per cent disability of his lumbar spine. In making that finding he took account of the expert medical evidence, and of his findings as to the plaintiff’s credit. The Judge was satisfied that that disability “prevents the plaintiff permanently from engaging in heavy labouring work and that, in all the circumstances, he is fit only for light, unskilled work.”
The Judge then found, a little surprisingly, that the overall disability was attributable to the injury sustained in the motor vehicle accident, and to the injury at work. He found:
“I am satisfied, further, that the injury suffered by the plaintiff in the accident has contributed to the extent of that lumbar spinal disability, but only to a minor degree, a level which I find to be 30 per cent.”
However, relevant to the issues argued on appeal, he made a further important finding:
“In consequence of the above findings and whilst I am satisfied that the accident has played a minor part in his current level of lumbar disability, I expressly reject the submission that the accident has in any way caused the plaintiff to lose his capacity to engage in heavy labouring work. But for the work injury, I am satisfied he would have continued to undertake that work; in consequence of it, he lost that capacity.”
A little later he repeated that finding. He said:
“As I have found that the major part of the plaintiff’s disability is attributable to the work injury and that his incapacity for heavy work is wholly attributable to it ... ”
The Judge went on to award damages for earnings that the plaintiff lost between the time of the motor vehicle accident and the return to work. He did not award damages for loss of earning capacity.
Submissions on appeal
Two submissions were advanced by Mr Walsh QC for the plaintiff, as a basis upon which the appeal should be allowed. The first submission was that the Judge either did find, or should have found, that the injury sustained by the plaintiff in the motor vehicle accident materially contributed to the injury sustained at work, because in some way it damaged or weakened the plaintiff’s back, predisposing him to the later work injury.
I have no difficulty in accepting, as a matter of law, that if that is the finding that the Judge made or should have made, the plaintiff will succeed. In March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 the High Court held that the so-called “but for” test is not a universal test when questions of causation arise in the law of negligence. In particular, Mason CJ said (at 516):
“The ‘but for’ test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff’s injury ... The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yield unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.”
A little earlier (at 514) he said:
“Nonetheless, the law’s recognition that concurrent or successive tortious acts may each amount to a cause of the injury sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are ‘caused or materially contributed to’ by the defendant’s wrongful conduct ... ”.
In my opinion this aspect of the case does not require a detailed consideration of more recent decisions of the High Court dealing with the question of causation.
It suffices to say, in my opinion, that if the plaintiff sustained an injury to his back in the motor vehicle accident, which made it more likely that he would suffer the injury that he later suffered at work, in the sense of predisposing him, or made it more likely that the work injury would occur sooner than it otherwise would have occurred, then the injury in the motor vehicle accident will be regarded as having materially contributed to the later work injury. Any assessment of damages would, of course, have to take into account the fact that the plaintiff’s degenerative spine condition would, sooner or later, have forced him to give up heavy labouring.
The difficulty that the submission advanced for the plaintiff encounters is that it finds no support in the Judge’s findings. Moreover, findings that I have set out above tend to negative it. I refer in particular to the finding, already quoted, that:
“[T]here was no satisfactory evidence tending to show that the incident he suffered at work was caused by, or in any way connected to, the back injury he suffered in the accident”.
The tenor of the Judge’s findings is quite to the contrary of the submission advanced by Mr Walsh. There is no justification for reading the Judge’s finding that the motor vehicle accident contributed to the lumbar spinal disability “to a minor degree” as meaning that the Judge was intending to find that the injury suffered in the motor vehicle accident predisposed the plaintiff to suffering the later injury, or was relevant to the timing of the later injury.
I acknowledge that there are some passages in the evidence of some of the doctors that are capable of supporting a finding along the lines suggested by Mr Walsh. But the findings made by His Honour are to the contrary. In any event, the evidence to which Mr Walsh took us provided rather tenuous support for his submission. This is a case in which the doctors were cross-examined by reference to a number of variations in the history provided by the plaintiff, and by reference to various possible links between the motor vehicle accident and the work accident, and between each accident and the ultimate disability. Various opinions expressed by various doctors in the course of their evidence have to be considered in the light of the findings the Judge made about the history provided by the plaintiff. Opinions that were offered in evidence were often qualified by reference to the history that had been given, or were expressed with considerable caution. Dr Cullum did suggest at one stage that the motor vehicle accident had weakened the plaintiff’s back, that the injury did not fully resolve, and that it was aggravated at work. But this opinion was based on the hypothesis that the plaintiff suffered a minor disc tear in the motor vehicle accident, and that is a hypothesis rejected by His Honour. And the question which drew this answer was based on a history of symptoms after the motor vehicle accident that the Judge found to be inaccurate. Dr Cornish, on the other hand, seems to have expressed a contrary view, saying that pre-existing degenerative changes were the explanation for what had happened at work. Dr McCulloch, in a passage referred to by the Judge referred to the motor vehicle as something that “sets the right setting for the patient to have the injury, ignoring the degeneration”. That is perhaps as close as the plaintiff’s submission gets. There is also some equivocal evidence from Dr Munyard.

But it is one thing to point to pieces of evidence here and there. In the end, these were matters for the Judge to decide, and in my opinion the short answer to this submission is that it is contrary to findings made by the Judge.
I should add, as Mr Walsh appeared to more or less concede, the case does not appear to have been put in this way at trial. That makes one all the more cautious about relying on parts of the evidence, when one bears in mind that the cross examination was directed to different issues.
Mr Walsh further argued that the correct approach to the issue of causation was to consider what was the possibility that, but for the motor vehicle accident, the work injury would never had occurred. He suggests that if the answer was, for example, that there was a 30 per cent possibility after the motor vehicle accident that the work injury would have ensued, the plaintiff should recover 30 per cent of his damages. He relied on certain propositions to be found in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, in particular at 643. It suffices to say that in my opinion the High Court decision in Malec lends no support to an approach like that in a case like this. In the present case the issue is whether, on the balance of probabilities, the injury sustained in the motor vehicle accident materially contributed to the occurrence of the injury sustained at work. The answer to this question does not turn on predicting the future or conjecturing the hypothetical.
The second submission was that in any event the finding of the trial Judge, that the motor vehicle accident had contributed to the plaintiff’s lumbar spinal disability to the extent of 30 per cent, was a finding that required an award of damages for loss of earning capacity. He submitted that the Judge had failed to follow through the logic of his own finding.
It is helpful to set out the particular finding upon which Mr Walsh relied. The finding is as follows:
“Having regard to all the evidence, to my findings as to the plaintiff’s credit and to those opinions, which I find acceptable and generally consistent with the evidence I accept, I am satisfied that the plaintiff has, since 21 February 1997, suffered from a 15 per cent disability of his lumbar spine.
I am further satisfied that that level of disability prevents the plaintiff permanently from engaging in heavy labouring work and that, in all the circumstances, he is fit only for light, unskilled work ...
I am satisfied, further, that the injury suffered by the plaintiff in the accident has contributed to the extent of that lumbar spinal disability, but only to a minor degree, a level which I find to be 30 per cent.”
The first step in the submission is that the finding of the Judge means that viewing the plaintiff’s lumbar spinal disability as a whole, 30 per cent of that disability is attributable to the injury sustained in the motor vehicle accident. I agree with that submission. The next step in the submission is that the disability of the lumbar spine is the cause of the plaintiff’s inability to engage in heavy labouring work. I agree with that submission. The final step in the submission is that the inability to undertake heavy work is caused by that overall disability, of which disability attributable to the motor vehicle accident is part, and that accordingly the disability attributable to the motor vehicle accident has materially contributed to the disability that caused the incapacity for heavy work. Accordingly, on this reasoning, the Judge should have proceeded to award damages for loss of earning capacity.
Mr Walsh submits that his argument does not founder on the finding by the Judge that:
“But for the work injury, I am satisfied that he would have continued to undertake that work; in consequence of it, he lost that capacity.”
Mr Walsh submits that this is merely a finding that when the work injury occurred, it in combination with the earlier disability, gave rise to an incapacity for heavy work. He argues that while the plaintiff would not have been unfit for heavy work but for the injury at work, the unfitness for work is the product of the combined effect of the disability sustained in the motor vehicle accident and the disability sustained at work. He submits that the Judge has overlooked his own finding that the final disability, which led to a loss of earning capacity, is the product of the combined operation of the two disabilities, and that the incapacity would not have resulted “but for” the first disability. If that is so, he intermits, it does not matter that the second disability has also played a part, and even the greater part, in producing the incapacity for work.
There is more substance in this submission than in the previous submission. The Judge has not made findings which explicitly and necessarily reject the submission advanced by Mr Walsh. There is a question unanswered by the Judge’s findings. The question is whether the plaintiff is unable to engage in heavy work because of the work injury, and the disability that caused, operating in conjunction with the injury sustained in the motor vehicle accident, and the disability that that has caused. To defeat the plaintiff’s claim, it was not enough for the Judge to find that the plaintiff would have been able to continue to engage in heavy labouring work but for the injury suffered at work. The Judge had to find, as well, that the injury and disability attributable to the motor vehicle accident did not materially contribute to the disability that caused an incapacity to engage in heavy labouring work. Or, to put the matter in terms that reflect the onus of proof, the plaintiff is entitled to succeed if the disability attributable to the motor vehicle accident materially contributed to the disability that caused incapacity for heavy work.
I should add that I put the matter this way, reflecting the language used by Mason CJ in March. It must be remembered that the precise formulation of the relevant question in cases where causation is an issue depends on the circumstances in which the issue arises, and the sort of issue that falls to be decided. As the majority said in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6, the ultimate question is one of fact, to be resolved as “a matter of commonsense and experience” This case appears to me to be a case in which it is appropriate to pose the question in terms of the language used by Mason CJ in March, but the formulation of the question is best deferred until the facts are found and the issues identified.
But this much at least is clear. The plaintiff may be entitled to damages for loss of his earning capacity for heavy work even though the disability attributable to the motor vehicle accident is not the sole cause of the loss of earning capacity, or even the main cause of that loss.
In short, I agree that if the plaintiff is unable to engage in heavy labouring work because of the combined effect of both disabilities, then the plaintiff succeeds. The plaintiff fails, ignoring questions of onus of proof, if the Judge’s finding means that the inability to engage in heavy labouring work is wholly and solely caused by the incapacity attributable to the work injury.
I should say in fairness to the Judge that, once again, this does not appear to be the basis upon which the case was conducted before him. That probably explains why the question is not dealt with in terms.
There are findings by the Judge that suggest that he meant to exclude a conclusion along the lines advanced by Mr Walsh. The finding which I set out above, that but for the work injury the plaintiff would have remained fit for heavy work, is not conclusive of the point. But to this must be added the finding that in the motor vehicle accident the plaintiff sustained nothing more than a minor strain to his spine. The work injury was a major injury, involving an annular tear. There is also the fact that, on the Judge’s findings, the plaintiff had been fit to resume normal heavy labouring work early in 1997. Then there is the description by the Judge of the work injury as “an overwhelming or intervening event which deprived him of his then current capacity to undertake heavy labouring work”. The description of the work injury as an intervening event is, with respect, inappropriate here. The issue is not whether the injury at work overwhelmed the consequences of an earlier injury, or intervened in the sense of terminating any causative effect. It is clear that after the motor vehicle accident the plaintiff was fit for heavy work. The issue is whether what happened later is the sole and exclusive cause of the incapacity for heavy work, or whether it has that effect only in conjunction with what happened earlier. Nevertheless, the language that the Judge used is significant. It suggests that in His Honour’s view the later injury is the sole cause of the incapacity.
The Judge does not identify the “injury suffered in the accident” that “contributed to the extent of that lumbar spinal disability”. However, earlier in his reasons he found that after the motor vehicle accident the plaintiff’s back was “slightly stiff”, but still with “a full range of movement”. This may be what he had in mind.
However, having read His Honour’s reasons several times, I have been unable to resolve what appears to me to be an internal conflict. To that extent I accept the submission advanced by Mr Walsh.
The finding that the disability of the lumbar spine, to which disability the injury suffered in the motor vehicle accident has contributed to the extent of 30 per cent, is the cause of the incapacity for heavy work, is a finding which, standing alone, entitles the plaintiff to an award of damages for loss of earning capacity. It is a finding that the injury suffered in the motor vehicle accident has materially contributed to the incapacity for heavy work.
But the later finding that the incapacity for heavy work is wholly attributable to the work injury is in plain conflict with this finding. If the Judge’s reasoning is simply that after the motor vehicle accident the plaintiff was still fit for heavy work, but after the work injury was not fit for heavy work, that would not be a reason to decline to award damages for loss of earning capacity. That would be no more than a conclusion that it was only the addition of the disability suffered in the work injury that brought the plaintiff to the point of being unfit for heavy work. This, of course, is what Mr Walsh submits the Judge must have found, but erroneously failed to recognise. But if the Judge’s finding is that the incapacity for heavy work is due solely to the further incapacity sustained as a result of the work injury, in the sense that that further incapacity standing alone renders the plaintiff unfit for heavy work, then the plaintiff would not have established that the motor vehicle accident had materially contributed to the ultimate incapacity. That seems a little unlikely, if the motor vehicle accident has contributed to the extent of 30 per cent to the ultimate disability, but that is a matter to be found on the evidence. Again, if the Judge’s ultimate finding is based on a finding that the work injury has, in some way, completely supplanted the previous injury and incapacity, the plaintiff might fail. That would be a finding that, in some way, the later injury had put to an end any link between the motor vehicle accident and an incapacity for work. But that process of reasoning seems unlikely, in view of the Judge’s finding that the motor vehicle accident continued to contribute to the ultimate lumbar spinal disability to the extent of 30 per cent.
As I have said, it seems to me that the crucial findings in this case are in conflict.
I consider that the plaintiff’s submission on appeal succeeds to this extent, that the plaintiff has established that on the findings made the award of damages should not stand. The Judge has made a finding that appears to entitle the plaintiff to an award of damages for loss of earning capacity, but has also made a finding that would support the approach taken by the Judge to the issue of loss of earning capacity. If I were satisfied that the Judge’s findings meant that the plaintiff was entitled to succeed, it would be appropriate to so decide and to remit the matter to the Judge for damages to be assessed. However, despite the thoroughness and clarity of the Judge’s reasoning generally, I have been unable to resolve this conflict in his reasoning. I am not satisfied that the findings by the Judge lead, as a matter of law, to the conclusion that the plaintiff is entitled to damages for loss of earning capacity.
Nor do I consider, having examined a good deal of the evidence, that this is an appropriate case for this Court to make its own findings of fact. The final outcome in this matter turns upon an assessment of a substantial body of expert medical evidence. Different doctors expressed quite different views to the Judge. The final decision depends upon the weight to be attributed to particular opinions. That is a decision best left to the trial Judge.
In these rather unusual circumstances, I would allow the appeal, set aside the award of damages, and remit the matter to the trial Judge for further consideration in light of these reasons and in light of further submissions by counsel. In my opinion it is necessary for the Judge to consider further the issue of whether the motor vehicle accident has materially contributed to the ultimate incapacity for heavy work from which the plaintiff suffers.
The Judge might well restore the original award, but on the other hand he might conclude that the legal effect of his findings is that the plaintiff should be awarded damages for loss of earning capacity.
There is another reason for taking this course. If Mr Walsh’s second submission were to succeed, it would be necessary to assess the plaintiff’s damages and to make findings on matters with which the Judge has not dealt, because he did not need to deal with them. It would be necessary to make a finding about the impact on the plaintiff’s employment prospects of the degenerative condition of his back which existed before the motor vehicle accident, to make findings about the prospects of the plaintiff obtaining alternative employment, and then to proceed to assess the damages. It would, I think, be necessary also to reconsider the damages awarded for non-economic loss, because on this hypothesis the non-economic consequences of the work injury are likewise attributable to the motor vehicle accident. While the Full Court does what it can to avoid remitting matters for a retrial, or for further hearing and disposition before the trial Judge, my view is that it would be unsatisfactory for the Full Court to embark on these matters, no findings having been made by the trial Judge.
Conclusion
For those reasons I would allow the appeal, set aside the award of damages and remit the matter to the trial Judge for further consideration in light of these reasons.
NYLAND J I agree that the appeal should be allowed for the reasons expressed by Gray J. I agree with the orders he has proposed.
GRAY J The plaintiff[1] sustained personal injury in a motor vehicle accident on 19 October 1996. He was awarded damages following a trial in the District Court. The plaintiff has appealed against the adequacy of that award.
[1] I propose to refer to the parties as plaintiff and defendant.
Background
The accident occurred at a suburban intersection. The plaintiff was riding his Harley Davidson motorcycle through the intersection. The defendant, driving a motor vehicle, turned right across the plaintiff's path. When the plaintiff realised that an accident was inevitable he and his passenger “stepped” from the bike to avoid impact. At the time, the bike was travelling at about 50 kph. The plaintiff fell to the ground and suffered injury. The trial judge found both parties negligent. Liability was apportioned 85 per cent in favour of the plaintiff.
Prior to the motor vehicle accident, the plaintiff was married with a young child. He worked in unskilled heavy labouring work and had done so for some years. He was permanently employed. As a result of the defendant’s negligence and the resulting motor vehicle accident, the plaintiff sustained an injury to his lower back and was unable to work for three weeks. He then returned to work.
On 21 February 1997 the plaintiff was unable to continue with his work. The trial judge found that he sustained further injury to his back at work at that time (“the work incident”). The trial judge also found that the plaintiff had a longstanding degenerative condition of the lumbar spine.
It was common ground at trial that the plaintiff was unfit for heavy work. However there was a dispute as to what part the injury sustained in the motor vehicle accident played in this disability. The plaintiff contended that the defendant’s negligence (with the resulting motor vehicle accident and injury) was a contributing cause to his overall disability. The defendant submitted that it was not.
Issues on Appeal
Counsel for the plaintiff submitted that the trial judge should have found that the injury sustained in the motor vehicle accident damaged the plaintiff's back and made him more susceptible to the injury sustained at work on 21 February 1997. I agree with the reasons of Doyle CJ and reject this submission.
Counsel for the plaintiff further submitted that the findings of the trial judge necessarily lead to the conclusion that the defendant's negligence was a contributing cause of the plaintiff’s ultimate disability. It was put that findings of the trial judge dictated this conclusion on an application of legal principle.
Finally it was contended that the trial judge failed to assess the plaintiff’s losses in accordance with the principle enunciated in Malec v J. C. Hutton Proprietary Limited[2].
[2] (1989-90) 169 CLR 638
Causation
The trial judge commenced his discussion on causation with a finding that the plaintiff suffered from a back disability which impaired his earning capacity. He said:
"I am satisfied the plaintiff presently suffers from a back injury which has affected his enjoyment of life and his earning capacity, and will do so in the future, but my lack of confidence in his credibility, the impact of that on the reliability of the histories he has provided to various examiners, and the significance of those histories in their opinions generally and as to causation, all contribute to the difficulty of determining what, if any, role the accident has played in his present condition.
...
Having regard to all the evidence, to my findings as to the plaintiff's credit and to those opinions, which I find acceptable and generally consistent with the evidence I accept, I am satisfied that the plaintiff has, since 21 February 1997, suffered from a 15 per cent disability of his lumbar spine.
I am further satisfied that that level of disability prevents the plaintiff permanently from engaging in heavy labouring work and that, in all the circumstances, he is fit only for light, unskilled work."
Later in his reasons he concluded:
"…that in consequence of his injuries generally, the plaintiff has been limited in the physical activities he is able to carry out in his domestic, recreational and social life. That conclusion must follow from the medical consensus that he has a 15 per cent lumbar disability and is not fit for heavy work."
The trial judge continued:
"…I am satisfied that his back problem does restrict his social and leisure activities, and causes him pain and discomfort."
He proceeded to assess damages for non economic loss:
"In arriving at the numerical figure, I will simply do the best I can on the available evidence to have regard to those non-economic detriments suffered by the plaintiff in consequence of the accident."

The explicit finding of the trial judge was that the 15 per cent disability of the lumbar spine prevented the plaintiff from permanently engaging in heavy labouring work. Given this finding, it is critical to identify the factors which caused this level of disability. The trial judge took the view that there were three:
-       a degenerative condition
-       the injury following the motor vehicle accident
-       the injury following the work accident.
The trial judge concluded that the motor vehicle accident contributed to the plaintiff's disability. He said:
"I am satisfied, further, that the injury suffered by the plaintiff in the accident has contributed to the extent of that lumbar spinal disability, but only to a minor degree, a level which I find to be 30 per cent."
These findings have not been challenged by the defendant.
The trial judge then added:
"Having made those findings, it does not follow that the accident has contributed to the plaintiff's loss of earning capacity since 21 February 1997 and, indeed, I find that it has not. I am satisfied, and find, that:
-prior to the accident, the plaintiff was suffering from a level of spinal degeneration which was at that particular time asymptomatic, albeit that the plaintiff had had earlier incidents of back pain;
-in consequence of the accident, the plaintiff suffered from a mild lumbar sprain;
-that he made a gradual recovery from that injury, that he was fit to resume light work some three weeks after it and did so, that he was fit to resume his normal heavy labouring work by early January or early February 1997, at the latest, and that he did so;
-that from the time he resumed normal duties, the plaintiff remained capable of earning an income in heavy labouring work of the kind he had previously performed and for an indefinite time into the future;
-that he suffered an injury at work on or just prior to 21 February 1997 in the form of an annular tear in his lumbar spine. That injury was an overwhelming or intervening event which deprived him of his then current capacity to undertake heavy labouring work."
The trial judge found that the contribution of the motor vehicle accident to the plaintiff’s lumbar disability was 30 per cent and the work incident more than 50 per cent. It necessarily follows from these findings that degeneration contributed less than 20 per cent. This analysis demonstrates that the trial judge considered the motor vehicle accident and consequent injury a greater contributor to the plaintiff’s lumbar disability than the degenerative condition.
Counsel for the defendant on the hearing of the appeal accepted that the plaintiff’s degenerative state was a cause of his disability for heavy work.
It follows from these findings that the injury sustained in the motor vehicle accident was, on the application of legal principle, a contributing cause of the plaintiff's ongoing disability.[3] To be explicit, the defendant’s negligence was a cause that materially contributed to the plaintiff’s ongoing disability for heavy work.
[3]March v E & M H Stramare Pty Limited (1990-91) 171 CLR 506 at 509, 524, 530; Bennett v Minister of Community Welfare (1992-93) 176 CLR 408 at 429; Medlin v The State Government Insurance Commission (1994-95) 182 CLR 1 at 7; Chappel v Hart (1998-99) 195 CLR 232
Further confirmation of this finding is found in the trial judge’s later remarks:
"that [the plaintiff] suffered an injury at work on or just prior to 21 February 1997 in the form of an annular tear in his lumbar spine. That injury was an overwhelming or intervening event which deprived him of his then current capacity to undertake heavy labouring work."
The conclusion that the work accident was an intervening event necessarily involved a process of reasoning that the motor vehicle incident was a cause and that another cause, the work incident, intervened. Counsel for the defendant did not contend that the work accident was a novus actus. The evidence was not supportive of such a conclusion.
Counsel for the defendant drew attention to the trial judge's conclusion that the motor vehicle accident had not "in any way" caused the plaintiff to lose his capacity to engage in heavy labouring work. Attention was also drawn to the conclusion that:
“But for the work injury, I am satisfied he would have continued to undertake that work; in consequence of it, he lost that capacity.
Finally attention was drawn to the conclusion that:
"…his incapacity for heavy work is wholly attributable to it [the work incident]…".
In my view, this submission is flawed. The findings that a 15 per cent lumbar disability caused the incapacity at work and that degeneration and the motor vehicle accident were material contributors to that 15 per cent disability are inconsistent with, and irreconcilable to, the trial judge's conclusion that the incapacity for heavy work was "wholly attributable" to the work incident. This situation has arisen as a result of the trial judge’s misapplication of legal principle.
The trial judge was wrong to consider that the issue of causation had been left open by his primary findings. The finding that the motor vehicle accident had been a 30 per cent contributor to the 15 per cent lumbar disability, and "that that" disability led to the unfitness for heavy work resolved the causation issue.
Consensus of Medical Opinion
The trial judge referred to the “consensus” of medical opinion. He said :
"Given my acceptance of the evidence of the plaintiff's early complaints to the Queen Elizabeth Hospital and Drs Humphreys, Vinci, Khera and Munyard, such a finding is consistent with the opinions of Messrs Munyard, Cohen, Cullum and McCulloch, albeit that some express different percentages and others simply describe the accident as a minor contributor.
...
I am satisfied, on all the evidence, that in consequence of his injuries generally, the plaintiff has been limited in the physical activities he is able to carry out in his domestic, recreational and social life. That conclusion must follow from the medical consensus that he has a 15 per cent lumbar disability and is not fit for heavy work. Otherwise, he spoke of a range of pre-accident activities he can no longer undertaken and of pain and discomfort generally, including headache. Given my findings as to his credibility generally, I regard the full extent of his claims with some reservation. Nevertheless, I am satisfied that his back problem does restrict his social and leisure activities, and causes him pain and discomfort."
There was no consensus of medical opinion. There was no agreement. To the contrary there was significant disagreement.
The medical opinions varied. The lumbar disability was said to be as high as 35 per cent but other opinions were to the effect that there was no lumbar disability in existence. The majority view appeared to be that the plaintiff suffered a lumbar disability of 15 per cent or more and that the motor vehicle accident was a contributor to the lumbar disability.
The finding of the trial judge that the motor vehicle accident was a 30 per cent contributor to the lumbar disability was supported by the evidence. Medical opinion ranged from a contribution of one-third to one-fifth.
It was also the majority medical view that the plaintiff was unfit for heavy work as a result of the 15 per cent disability. The trial judge’s finding in this regard was well supported by the evidence.
The differences medical of opinion were in part due to inadequate and different histories provided by the plaintiff. The only consensus was the recognition of the plaintiff’s degenerative lumbar condition.
Loss of A Chance
Counsel for the plaintiff submitted that the trial judge erred in failing to assess damages for the degree of probability that the injuries sustained in the motor vehicle accident would cause future incapacity for work. It was submitted that the trial judge failed to have regard to the decision of the High Court in Malec[4]. Attention was drawn to the judgment of Deane, Gaudron and McHugh JJ at (643) where it was said:
“The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle; Davies v. Taylor; McIntosh v. Williams. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”
[4] (1989-90) 169 CLR 638
Counsel for the plaintiff submitted that the future effects of the physical injuries sustained by the plaintiff in the motor vehicle accident were not susceptible of scientific demonstration or proof. It was submitted that the trial judge was obliged to consider the degree of probability that the future consequences of the injury would occur. The trial judge was bound to make an award of damages unless he concluded that the chance of the disability for heavy work was so low as to be regarded as speculative.
Reference was made to the commentary of Professor Fleming[5] on Malec.
“The High Court of Australia chose to distinguish between past events which either happened or did not happen, on the one hand, and events which would or would not have occurred or might or might not have occurred, on the other. In other words, it treated hypothetical events the same as future ones because both were conjectural, whereas past events were at least theoretically susceptible of scientific demonstration. With regard to the former, one can only think in terms of degrees of probability of those events occurring. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction of 49%. Accordingly, the award of damages should reflect the degree of probability that an event would occur or might have occurred.
This reasoning has far-reaching implications. Does it not apply to all causal inquiries, seeing that they always involve ‘might have beens’? Causality is usually tested by the short-form question whether the same event would have occurred ‘but for’ the defendant’s negligence. Inevitably, the answer is conjectural, since we can never be certain that it would have happened otherwise.
...
Malec may have settled a narrow issue, but not without stirring a larger one. We are awaiting the next move in the causality game.”
[5]John G Fleming, “Probabilistic Causation In Tort Law: A Postscript” (1991) 70 Can B Rev. 136 at 140. See also S M Waddams, “The Principles of Compensation” Essays on Damages ed P D Finn, The Law Book Company Limited, 1992 1 at 10.
In Malec the court reaffirmed the established rule that the determination of “whether any event has occurred” is to be treated as an all-or-nothing question.
In this case a number of events had occurred. Those events included the plaintiff’s degenerative lumbar condition; the motor vehicle accident and injury; and the work incident and injury. The loss of earning capacity suffered as a result of these events was an effect that had occurred. The trial judge made findings about these matters. He also found that the defendant’s negligence was a 30 per cent contributor to the 15 per cent lumbar disability.
The future or hypothetical effects of the injury sustained in the motor vehicle accident are conjectural. The trial judge correctly addressed this issue. He had regard to the future effects of the injury. There is no basis for suggesting that he did not consider relevant contingencies. His error was one of causation. I reject the submission that there was a misapplication of the principles enunciated in Malec. The plaintiff’s submission is misconceived.
Conclusions
The plaintiff suffered from a long standing degenerative condition of his lumbar spine. The defendant's negligence and the resulting motor vehicle accident aggravated that condition. The work injury provided further aggravation and probably caused an annular tear. As a result of these three factors, the plaintiff has been left with a lumbar disability that renders him unfit for heavy activity whether at work or at home. The trial judge made an unequivocal and unchallenged finding that the motor vehicle accident was 30 per cent responsible for this state of affairs. This finding establishes that the defendant’s negligence was a material cause along with other causes, the combined effect of which, led to the plaintiff being unfit for heavy work.
The trial judge was well aware of the difference in medical opinion. His careful reasons make this clear. However it is unclear what he meant by his reference to the “consensus of medical opinion”.
I am satisfied that this confusion does not detract from the trial judge’s clear findings. Those findings were supported by a considerable body of evidence. The plaintiff established that the defendant's negligence leading to injury was a cause and a material cause of his ongoing disability for work.
I consider that this appeal must be allowed. The action must be remitted to the trial judge to re-assess the damages on the basis that the defendant's negligence was a cause that materially contributed to the plaintiff's ongoing incapacity for heavy work.
I would order that:
1      The appeal be allowed.
2      That the judgment of the District Court of 9 August 2000 that the plaintiff recover from the defendant the sum of $7,059.15 inclusive of interest be set aside.
3      That the order of the District Court made on 16 August 2000 providing for the costs of the action be set aside.
4      The action be remitted to the trial judge to reassess the plaintiff’s damages on the basis that the defendant’s negligence was a cause that materially contributed to the plaintiff’s ongoing incapacity for heavy work.
JUDGMENT CITATIONS LISTED AS THEY APPEAR IN THE JUDGMENT
1      I propose to refer to the parties as plaintiff and defendant.
2 (1989-90) 169 CLR 638
3March v E & M H Stramare Pty Limited (1990-91) 171 CLR 506 at 509, 524, 530; Bennett v Minister of Community Welfare (1992-93) 176 CLR 408 at 429; Medlin v The State Government Insurance Commission (1994-95) 182 CLR 1 at 7; Chappel v Hart (1998-99) 195 CLR 232
4 (1989-90) 169 CLR 638
5      John G Fleming, “Probabilistic Causation In Tort Law: A Postscript” (1991) 70 Can B Rev. 136 at 140. See also S M Waddams, “The Principles of Compensation” Essays on Damages ed P D Finn, The Law Book Company Limited, 1992 at 10.

[2001] SASC 120

1 June 2001